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Appeal No. 2322 of 1968.
Appeal by special leave from the order dated October 4, 1968 of the Bombay High Court in Special Civil Application, No. 2053 of 1968.
N. N. Keswani, for the appellant.
R. B. Datar and section N. Prasad, for respondent No. 1.
section P. Nayar, for respondents Nos.
2 to 4.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under articles 226 and 227 of the Constitution and refusing to quash the judgment and order of the Assistant Judge at Sangli rendered in Election Petition No. 10 of 1967.
The facts are as follows.
On June 3, 1967 election of councillors to the Sangli City Municipality was held under the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act.
The counting 968 of votes took place with regard to Ward No. 25 on June 4, 1967.
According to the election petition, the results were published in the Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967.
The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds set forth in paragraph 3 of the petition.
The first of these was to the effect that the appellant bad, with the help of his supporters, published an undated pamphlet and circulated the same on a large scale among the voters in Ward No. 25 and that the said pamphlet contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments.
Another similar ground based on a defamatory pamphlet dated 30th May 1967 was urged in the petition.
Charges of terrorising voters and securing votes by false personation were also levelled therein.
Statements were made in the petition that the appellant 's name as councillor had been declared in the Official Gazette on June 15, 1967 and the petitioner 's cause of action bad arisen on that date.
The first of these was expressly accepted as correct in the written statement of the appellant and the second remained unchallenged.
The appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets.
Of the four issues framed at the hearing of the petition, the first was : "whether the petitioner proved that opponent No. 1 who was elected as Municipal Councillor for Ward No. 25 had used malpractices at the time at the election by arousing religious sentiments of the voters and making defamatory statements against the petitioner by publishing pamphlets?" The petitioner gave evidence himself about the allegations in the petition to substantiate the charges raised by him.
The appellant examined himself to contradict the said evidence.
It appears that the petitioner had in the list of witnesses filed by him, mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined.
On August 21, 1968 the petitioner made an application before the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that application.
The appellant 's case was closed on the same day and the arguments started on August 22, 1968.
On that date the court adjourned the hearing of the case to August 24, 1968 for 969 recording the evidence of these two witnesses in respect of whom an application had been made by the election petitioner on the previous day.
The order exhibit 36 dated August 22, 1968 tends to show that the learned Judge was persuaded to do so by the mere fact that they were Government servants.
He however recorded that the ends of justice required that these witnesses should be examined.
He fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons.
These two persons were examined on the 24th August as court witnesses and thereafter the argument of counsel was resumed and concluded.
By judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue.
The appellant before us presented an application to the High Court under articles 226 and 227 of the Constitution for quashing the order of the Judge; but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant has now come up before this Court by special leave.
Learned counsel for the appellant raised five points before us.
The first point was that the procedure adopted by the trial court was wrong in that the two witnesses who were examined as court witnesses had been cited by the election petitioner earlier and the learned Judge had in the exercise of jurisdiction vested in him refused to issue summonses to them when he was asked to do so on August 21, 1968.
It was urged that having rejected this application, it was not open to the Judge to examine these two persons as court witnesses and this was a serious irregularity which the High Court should have set right by quasbing the order of the Judge based on the evidence of these witnesses.
The second point was that the election petition was filed beyond the period prescribed by the Act and as such it was not maintainable.
The third point was that the first issue which was decided against the appellant was so confusing and misleading that there was no fair trial of the petition to the prejudice of the appellant.
The fourth point was that in any event there was no evidence of corrupt practice of which the appellant could be found guilty.
The fifth point was that the order of the Judge disqualifying the appellant for a period of five years was unduly harsh and ought to be set aside.
With regard to the first point it is to be noted that the case of the election petitioner was that the appellant was guilty of publication of two pamphlets which cast serious aspersions on his character and conduct and prejudiced him materially in the eyes of the voters as a result whereof he lost the election and that the first of these also aroused the religious sentiments of the Muslim voters to his detriment.
The appellant was found guilty of publication of the first pamphlet only.
This was.
signed by 970 six persons.
There was no evidence as to where it was printed or who got it printed.
The evidence adduced by the election petitioner was that the appellant had published all the phmphlets mentioned in the petition and distributed the same amongst the voters and the petitioner had come across the first pamphlet during the process of distribution.
There can be no two opinions about the contents of the pamphlet being defamatory of the election petitioner 's character.
The pamphlet read : "H. K. Kadlaskar, who contests the election from Ward No. 25 is an independent candidate, has been ostracized from the Muslim community and he has no support of the Muslim community and therefore nobody should vote for him." While Kadlaskar was in charge of the management of the Kabarasthan, he was extracting Rs. 12 for allowing the members of Muslim community to bury their dead and had prohibited the burial of the dead bodies of dancing girls and had extracted hundreds of rupees from the persons whose dead were buried there.
He turned the Kabarasthan into a brothel and was trading in illicit liquor for which he was convicted.
Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private character of Mohmad Umar and Moulana Innan and nobody should vote for this mean minded and anti social person.
In a meeting of the Muslim workers held on 29 4 1967 in the Madina Masjid Hall under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past.
So all the voters should cast vote in favour of Mohammad Umar Shaikh whose symbol is a pair of bullocks.
(1) Ramjan Mohiddin Jamadar (Hundekari), Chairman Idgah Committee.
(2) Shaik Abdul Sattar Rahimanbhai Bidiwale, Treasurer, Idgah Fund Committee.
(3) Moulana Hannan, manager of Madrasa e Hidayatul Islam, and member of Madina Masjid (4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee (5) Sayyed Amin, member of Madrasa e Hidayatul Islam and Idgah Committee.
(6) Jalaloddin Allabus Sayyad, B.A.LLB., member of Madrasa e Hidayatul Islam.
" The appellant who led evidence on his own behalf denied the publication of the pamphlet and the distribution of it by him as alleged by the petitioner.
Nothing came out in cross examination of the appellant to substantiate the election petitioner 's averment 971 that he was responsible for its distribution.
Of the two witnesses who were examined as court witnesses by the Judge, the witness Gopal Chintaman Ghugare did not say anything material on the point of distribution by the appellant.
He merely said that he had seen people reading the pamphlet but he did not know who had distributed it.
The other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a copy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to how he came to receive it.
He stated that he had attended a prayer meeting at a mosque on the 2nd June and after the Namaj was over the appellant had read over the pamphlet and one Moulana Hannanlent support to the appellant.
In cross examination it was elicited from him that although he had occasion to see the distribution of other pamphlets, he could give no details thereof i.e. either about the person who distributed them or the dates when that was done.
In cross examination of this witness serious accusations were made against his character and probably no exception could have been taken if the Judge hearing the matter had refused to believe him.
However that may be, the learned Judge accepted his testimony and came to the conclusion that the appellant had been personally responsible for the distribution of the first pamphlet and as such found him guilty of a corrupt practice and made an order disqualifying him under the Act from taking part in municipal elections for the next.five years.
It was strenuously argued by learned counsel for the appellant that the recepition of evidence of the two witnesses called as court witnesses vitiated the whole trial and therefore the High Court was not right in refusing to quash the order.
Our attention was drawn to the provisions of O. XVI r. 14 of the Code of Civil Procedure and particularly to the conditions under which the court may examine any person other than a party to the suit and not called as a witness by a party to the suit but of its own motion to give evidence therein.
It was argued that after having turned down the application of the election petitioner on the 21st August for issue of summons to these two persons, the learned Judge clearly went wrong in allowing them to be called as court witnesses.
In this connection we. may note the provisions of section 21 sub section 7 of the Maharashtra Municipalities Act, 1965.
It provides as follows (7) For the trial of such petition, the Judge shallhave all the powers of a civil court including power in respect of the following matters : (a) discovery and inspection; 972 (b) enforcing the attendance of witnesses and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence on affidavit; and (g) issuing commissions for the examination of witnesses; and the Judge may summon suo motu any person whose evidence appears to him to be material.
The Judge shall be deemed to be a Civil Court, within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898.
" It appears that under this section, the Judge is given powers wider than those given by the Code of Civil Procedure under 0.
16 r. 14 inasmuch as the section does not prescribe any prerequisite to the examination of a person as court witness as envisaged by the Code of Civil Procedure.
In our view, the learned Judge had jurisdiction to call these two persons as witnesses under the provisions of the Act.
We may note that even under the Representation of the People Act, 1951 which does not contain a similar provision it has been held by this Court that "although. . the trial court should be at arms length and the court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved.
If the Court was satisfied that a corrupt practice has in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice." (see R. M. Seshadri vs G. Vasanta Pai(1).
In that case, the corrupt practice with which the appellant was charged was having used a large number of motor vehicles for the free conveyance of voters at an election.
The trial Judge examined two witnesses as court witnesses and it is quite clear that but for the evidence of these two persons, it would have been very difficult.
if not impossible, for the Judge to have come to the conclusion he did and find the appellant guilty of corrupt practice.
Although one of the two witnesses so examined had been cited earlier as a witness by one of the parties, he was not (1) ; 973 examined but during the course of the evidence led before the rial court, it became quite clear that the two persons who were called as court witnesses were fully conversant with the engagement of the motor vehicles and the court therefore examined them as court witnesses and on the basis of their evidence, found the appellant guilty of a corrupt practice.
There, this Court had to deal with the provisions of 0.
16 r. 14 and the quotation from that judgment shows that the powers of the court in this respect are of wide amplitude, specially when investigation is being made into allegations about the commission of a corrupt practice.
It may be that in the instant case, if the two persons had not been examined, the Judge might well have decided the issue the other way.
But the Act certainly gave him the power to do so and no exception can be taken to the course adopted by the Judge although it must be recorded that his earlier order refusing to issue summonses to them in the first instance when asked to do so on the 21st August was hardly justifiable.
Probably the learned Judge realised that his order of the 21st August needed recalling.
The appellant would have had a real cause for grievance if he had asked for an opportunity to rebut the evidence of these two witnesses and had been denied the same but this has nowhere been alleged.
On the evidence no exception can be taken to the course adopted by the Judge in deciding the issue against the appellant on the facts and circumstances of this case.
It may be that the evidence which was adduced was not so immaculate that another learned Judge deciding the petition might not have taken a different view.
But it cannot be said that there was no evidence on which the Judge could have come to the conclusion he did, The first point therefore fails.
With regard to the second point, the learned counsel argued by reference to two publications in the Maharashtra Gazette, the one of June 8, 1967 and the other of June 15, 1967 that the first publication having taken place on the 8th June the time limit of ten days fixed under section 21 sub section
(1) of the Act began to run from that date and the petition which was filed on the 24th June was beyond time and should not have been entertained.
It is difficult for us to see why two ' Gazette notifications had become necessary.
One seems to be the verbatim reprint of the other.
The first publication dated 8th June is headed "Maharashtra Government Gazette Extraordinary Official Publication" while the other is headed "Maharashtra Government Gazette Official Publication".
The first bears the date 8th June and the second bears the date 15th June and both start with the sentence "in accordance with section 19(1) of the Maharashtra Municipalities Act, 1965 it is declared that in respect of the Sangh Municipal Council General Elections held on 3rd June 1967, the below mentioned candidates are elected from.
the below mentioned 974 wards for the seats mentioned as against their names".
As a matter of fact, it does not appear that there is any difference between the two Gazettes with regard to the names of the successful councillors.
The appellant might have, if so minded, set up the first Gazette publication as the one fixing the period of limitation in which case the trial Judge would have been required to go into the matter.
But the appellant precluded himself from doing so by his unconditional acceptance of the statements in paragrapbs 1 and 2 of the petition.
If the point had been canvassed before the learned trial Judge, he would certainly have gone into the matter and found out why there were two Gazette Publications and which was the publication to be taken into account for computation of the period of limitation prescribed by section 21 (1) of the Act.
There was no error apparent on the face of the record before the High Court and consequently the jurisdiction under article 226 of the Constitution could not have been exercised on the facts of the case by the issue of a writ of certiorari.
Neither could the High Court have set aside the order of the trial court under article 227 of the Constitution under which the High Court 's power of superintendence is confined to seeing that the trial court had not transgressed the limits imposed by the Act.
On the facts of the case the High Court was not called upon to go into this question.
There is certainly some substance in the grievance raised on behalf of the appellant that the first issue was rather confusing and misleading.
Instead of framing a separate issue with regard to each charge of corrupt practice raised in the petition, the learned Judge, framed the issue in a manner which leaves much to be desired.
For instance he should have framed separate issue with regard to each of the pamphlets.
The issues should further have specified the different heads of corrupt practice committed in respect of each of the pamphlets.
We cannot, however, come to the conclusion that because of the unsatisfactory nature of the issues framed, the whole trial is vitiated.
The appellant knew exactly what points he had to meet.
Evidence was adduced about the publication and distribution of the pamphlets by the election petitioner and contradicted by the appellant.
As we have already stated, although the evidence about the distribution of the pamphlet was meagre and not beyond reproach it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence.
It was urged by learned counsel for the appellant that there was enough material for the court to come to the conclusion that Hakim Abdul Rahiman Shaik was not a person whose veracity could not be depended upon.
There is much that can be said against him but this does not mean that everything deposed to by him should be rejected and when the trial Judge accepted the evidence with regard to the distribution of the pamphlet by the appellant the High Court 975 which was not hearing an appeal could not be expected to take a different view in exercising jurisdiction under articles 226 and 227 of the Constitution and for ourselves, we see no reason to interfere with the order of the High Court.
The fourth point too is not one of substance.
If the distribution of the pamphlet be accepted, there can be no doubt that the appellant was guilty of trying to arouse religious sentiments of the voters of the particular ward a majority of whom were Muslims.
The pamphlet starts off by describing the election petitioner as a person ostracised from the Muslim community.
If this statement was true, naturally any right thinking Muslim would think twice before casting his vote in favour of such a person.
There was also a charge in that pamphlet that he had turned the Kabarasthan into a brothel and was trading in illicit liquor for which was alleged to have been convicted.
In our view, there is no merit in this point raised by the learned counsel.
As regards the last point, it was for the learned Judge to have come to his own conclusion as to the period of disqualification.
The maximum penalty which the Act allowed him to impose was disqualification for six years and we see no reason to take any exception to the disqualification actually imposed.
As noted above, the allegations of corrupt practice were of a serious nature and if the appellant was found guilty of the commission thereof, the period of five years ' disqualification would certainly not be inappropriate.
In the result, therefore, the appeal fails; but in the circumstances of this case, we make no order as to costs.
R.K.P.S. Appeal dismissed.
| The respondent filed suits against the Collector of Customs and the Union of India claiming refund of excess customs duty levied on spindle oil imported into India.
The trial court granted decrees against the Union of India for the amounts charged in excess.
As the respondent had large outstandings of tax, the Income Tax Officer issued a notice under section 46(5A) of the Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him.
The Collector paid the amount into the Reserve Bank, who issued receipts crediting the amount against super tax due from the respondent.
He then applied to the High Court under O. 21 r. 2 C.P.C. for the adjustment of the decree by this amount.
This was refused by a single Judge as well as in appeal by a division bench.
It was held that the decrees were against the Union of India and not the Collector of Customs and that payment by the Collector was not a payment by the judgment debtor.
Furthermore the amounts were held by the Collector on behalf of the Union of India and not on behalf of the Firm.
The High Court also found the notice to be defective inasmuch as it asked for payment towards income tax and penalty, while the receipts which were granted to the Firm stated that the amount paid was against super tax due.
On appeal to this Court, HELD : The Union of India operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered the amount and held it from the respondent.
Collector paid the amount on behalf of the Union of India.
[126 A] A notice under section 46(5A) is no more than a kind of garnishee order issued to the person holding money and the money is due to an assessee.
The amount which was held.
by the Collector of Customs could properly be asked to be deposited with the income tax authorities under section 46(5A).
[127 B D] Super tax is also a kind of income tax and therefore, the notice could issue in the form it did.
There was no force in the contention that the amount, which could be adjusted under O. 21, r. 2, is a voluntary payment by the judgment debtor to the decree holder and the present case was not one of voluntary payment at all.
Order No. 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment.
A garnishee order can never by its nature lead to a voluntary payment and it is not to be thought that a garnishee order does not lead to the adjustment of the decree 124 sufficient for being certified by the Court.
Payment by virtue of section 46(5A) is in the nature of a garnishee payment and must, therefore, be subject to the same rule.
[127 G 128 B] In re Beckitt, [1933].T.R. 1, Bidhoo Beebee vs Keshub Chunder Baboo & Ors. , Mahiganj Loan Office Ltd. vs Behari Lal Chaki, I.L.R. , A. P. Bagchi vs Mrs. F. Morgan A.I.R. 1935, AU 513, Thomas Skinner vs Ram Rachpal I.L.R. [1938] All 294, distinguished.
|
Civil Appeal Nos.
13 15 of 1973.
Appeals by Special Leave from the Judgment and order dated 12th/13th August, 1970 of the Calcutta High Court in Income Tax Reference No 69/66 P. Burman, Subrata Ghosh and section Ghosh for the Appellant.
B.B. Ahuja and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
These appeals by special leave involve a common question regarding the taxibility of certain amounts received by the appellant company (hereinafter referred to as "the assessee ') during the three accounting years, namely, 1359 B.S., 1360 B.S. and 1361 B.S. relevant to the assessment years 1953 54.
1954 55 and 1955 56 and the question is whether those amounts represented business income or receipts of a capital nature ? The facts giving rise to the question may briefly be stated: The assessee was incorporated on July 3, 1920 for the purpose of taking over the Zamindari properties pertaining the Ukhara Estate which belonged to Rai Pullin Behari Singha Bahadur and the late Gosta Behari Lal Singha.
Therefore, on incorporation, by an Indenture dated July 5, 1920 the assessee took a lease of the extensive Zamindari pertaining to the said Estate for a term of 999 years and also took an assignment of movables, including Government promissory notes and jewellery belonging to the members of the lessor 's family and the arrears of rents and cesses, debts, decrees, etc.
due by the tenants of the said Estate, the properties passing to the assessee being specified in the schedule appended thereto.
The consideration for the said lease and assignment was fixed at Rs. 4,08,000/ which was paid and satisfied by the assessee by allotting and issuing its 4,080 fully paid up shares to the lessors.
The quit rent receivable by the lessors for the lessors Rs. 100/ per annum and the assessee also undertook to pay the revenue and cesses payable to the superior landlords in respect of the Zamindari.
Clause 3 of the Memorandum of Association set out the various objects for which the assessee was formed and though sub cl.
(a) thereof showed that the assessee was primarily incorporated for the purpose of taking over the assets of the lessors family upon the terms and conditions set forth in the Draft Agreement referred to in Article 3 of the Articles of Association, sub cl.
(b) of cl.
3 of the Memorandum empowered the assessee "to purchase, take on lease or otherwise acquire and to traffic in land, house and other property . ,. and generally to deal in or traffic by way of sub lease, exchange or otherwise with land and house property. . " The Estate taken on lease comprised substantial 714 coal bearing lands and mines which the assessee started giving on sub lease in various parcels to well known colliery companies for various terms of long duration.
During the three accounting years in question the assessee granted several sub leases for which it received salami and premia and there were also acquisitions of the portions of the Estate by the Land Acquisition Collector for which it received compensation.
The total amount of salami, premia and the compensation received by the assessee in the three accounting years were respectively Rs. 22,197/ , 188,417/ and 73,327/ and the question arose whether these receipts were business income or receipts of a capital nature.
The Income tax officer rejected the contention of the assessee that the receipts were of a capital nature aud he included the said amounts in the total income of the assessee in each year as its business income holding that the assessee carried on business in leasehold rights and real property.
On appeal by the assessee, however, the Appellate Assistant Commissioner reversed the finding of the Income Tax officer and excluded the amounts in question from the total income of the assessee following the decision of the Tribunal rendered on June 7, 1960, in the assessee 's case for the earlier assessment year 1946 47, 1947 48 and 1948 49.
The matter was carried by the Income tax Officer in further appeals to the Tribunal, but the Tribunal by its common order dated June 29, 1963 dismissed the departmental appeals holding that the receipts were of a capital nature not liable to be included in the taxable income of the assessee.
In coming to that conclusion the Tribunal mainly relied upon cl. 3 (a) of the Memorandum of Association, Article 3 of the Articles of.
Association and the terms and conditions set forth in the Draft Agreement (in accordance with which the Indenture dated July 5, 1920 was executed) which showed that the assessee had been primarily incorporated for the purpose of the conservation and management of the Family Estate of the lessors, that, in fact, the assessee was not carrying on the business of taking leases and granting sub leases inasmuch as it had not taken on lease any other property from any one else since 1920 upto date and that the transactions of granting sub leases of long duration to various colliery companies were by way of management of real property by the assessee as owner of lease hold interest and as such the receipts on account of salami, premia and compensation were of a capital nature.
The Tribunal relied upon and applied the ratio of the decision of the Madras High Court in P. K. N. Company vs Commissioner of Income Tax which has since been confirmed by this Court in 715 At the instance of the Revenue the Tribunal referred to the High Court for his opinion the following questions: "Whether on the facts and in the circumstances of the case, the Tribunal was justified in excluding the sums of Rs. 22,197/ , Rs. 1,88,417/ and Rs. 73,327/ from the total income of the assessee for the years 1953 54, 1954 55 and 1955 56 ?" The High Court answered the question in favour of the Revenue by holding that the receipts were not of a capital nature and were includible in the total income of the assessee as its business income.
The High Court took the view that the assessee could not be regarded as a purely family concern incorporated for the preservation and management of the family assets for maintenance of the lessor 's family especially as no provision had been made in its Memorandum of Association or Articles of Association conferring any right or share on new members that may be born in the coparcenery, it being admitted that Ukhara Zamindars constituted a Mitakshara Joint Family.
Relying upon the several objects set out in the Memorandum of Association, particularly the one indicated in cl.
3(b) (which permitted trafficking by way of sub leases) and further relying on what it called two special features of the assessee, namely, declaration of dividend and creation of reserve fund by it, the High Court held the assessee to be a trading concern and that it had dealt with its lease hold rights in the lands as trading assets by using them to earn income? rent, royalty, salami, premia, etc. and, therefore, the receipts by way of salami or premia were trading receipts and profits thereform were business income.
In other words, the High Court held that the assessee as a trading concern had dealt with its lease hold interest in Zamindari property not as an owner but as a trader and, therefore, the receipts in question were includible in the total income of the assessee as business income.
The High Court relied upon the decision of this Court in Karnapura Development Co. ltd. vs Commissioner of Income Tax, West Bengal.
It is this view of the High Court that has been challenged before us by the counsel for the assessee in these appeals.
In support of the appeals counsel for the assessee raised two or three contentions.
In the first place he contended that the High court was in error in coming to the conclusion that the assessee was a trading concern and that it had dealt with its leasehold interest in the Zamindari property as a trading asset by using the same to earn income, rent, royalty, salami, premia, etc.
He pointed out that in 716 coming to that conclusion the High Court had wrongly allowed itself to be considerably influenced by the three factors: (a) existence of several objects set out in cl. 3 of its Memorandum of Association, (b) declaration of dividend by it and (c) creation of reserve fund by it, as according to him none of these factors would show that the assessee had actually dealt with its leasehold interest in the Zamindari property as a trader.
Secondly, he contended that the real question was whether after incorporation and after acquiring the lease of the Zamindari Estate, which included substantial coal bearing lands and mines, the assessee had dealt with its leasehold interest as a landowner or not and he urged that the manner in which the assessee granted sub leases of the lands in different parcels to various well known colliery companies for various terms of long duration extending over 900 years clearly showed that such transactions of granting sub leases were transactions in the nature of management of the estate as owner of the land and, therefore, the receipts by way of salami, premia and compensation will have to be regarded as receipts of a capital nature and in that behalf he placed reliance upon cl. 3(a) of the Memorandum, Article 3 of Articles of Association and the terms and conditions of the Draft Agreement in accordance with which the Indenture dated July 5, 1920 was executed, which showed that the assessee had been primarily incorporated for the purpose of preservation and management of the family Estate of the lessors.
He also pointed out that admittedly it was not the business of the assessee to run collieries nor did it in fact run any colliery on its own but it merely granted sub leases of various parcels of land to colliery companies which were transactions by way of management of the family Estate in fulfillment of the primary object for which it was incorporated.
In support of his contentions he relied upon this Court 's decision in P. K. N. Co 's case (supra).
On the other hand, counsel for the Revenue pressed for our acceptance the view taken by the High Court.
In particular, he invited our attention to cl. 3(b) of the Memorandum of Association which conferred power on the assessee not merely to purchase, take on lease or otherwise acquire and to traffic in land, house and other property but also "generally to deal in or traffic by way of sub lease, exchange or otherwise with land and house property etc." and urged that the several transactions of granting subleases of coal bearing lands and mines to various colliery companies on payment of rent, royalty, salami and premia must be regarded as business transactions entered into in pursuance of its trading object and, therefore, the High Court was right in coming to the conclusion that the assessee had dealt with its rights in leasehold land as stock in trade or trad 717 ing assets and the receipts by way of salami, premia or compensation were its business income.
For the reasons which we shall indicate presently it is impossible to accept the High Court 's view in the matter and we have to uphold the conclusion reached by the Appellate Tribunal.
The legal principle or the test which should govern the question of the type that has arisen in these appeals has been clearly enunciated by this Court in Karnapura Development Co. Ltd. case (supra).
The assessee in that case was a company formed with the object, inter alia, of acquiring and disposing of underground coal mining rights in certain coal fields.
The Memorandum of Association of the company enumerated other objects, such as coal raising, but the assessee restricted its activities to acquiring coal mining leases over large areas, developing them as coal fields and then sub leasing them to collieries and other companies.
The leases were acquired for a term of 999 years and were sublet for the balance of the term of the respective leases minus two days.
The company never worked the coal fields with a view to raising coal, nor did it acquire or sell coal raised by the sub lessees.
As against a salami of Rs. 40/ per bigha which the assessee had paid, it realised from the sub lessees Rs. 400/ per bigha as salami.
In addition, the assessee charged certain royalties at rates higher than those it had agreed to pay under the head leases.
The company admitted that the income from the royalties was taxable.
The question was whether the amounts received by the assessee as salami for granting the sub leases constituted trading receipts in its hands and the profit therefrom was assessable to tax under the Indian Income Tax Act, 1922.
Having regard to the objects for which the company was formed as well as the nature of operations which the company indulged in, this Court held that the transactions of acquiring leases and turning them to account by way of sub leases were in the nature of trading activity within the objects of the company and not enjoyment of property as land owner and the amounts received by way of salami were trading receipts and the profits therefrom were liable to income tax.
Observing that the dividing line between the two types of operations was difficult to.
find and after referring to a number of decisions both English and Indian, this Court at page 377 of the report enunciated the principle in the following words: "Ownership of property and leasing it out may be done as a part of business, or it may be done as land owner.
Whether it is the one or the other must necessarily depend upon the object with which the act is done.
It is not that no company can own property and enjoy it 718 as property, whether by itself or by giving the use of it to another on rent.
Where this happens, the appropriate head to apply is "income from property" (section 9), even though the company may be doing extensive business otherwise.
But a company formed with the specific object of acquiring properties not with the view to leasing them as property but to selling them or turning them tc account even by way of leasing them out as an integral part of his business cannot be said to treat them as land owner but as trader.
The cases which have been cited in this case both for and against the assessee company must be applied with this distinction properly borne in mills.
In deciding whether a company dealt with its properties as owner, one must see not to the form which it gave to the transactions but to the substance of the matter " The other decision of this Court in P. K. N. Cos case (supra) is equally important, for, certain aspects and their significance in determining the question in the instant case have been clarified.
In that case the partners of a firm, known as 'P.K.N. ' formed a private company and transferred to it all their assets and properties consisting of 3000 acres of rubber and coconut plantations besides vacant sites and houses.
The membership of the company was restricted to the members of PKN firm and in consideration of the transfer of all the assets and properties of the aggregate value of 16,50,000 dollars to the company, the partners, of the firm were allotted shares of the face value of 6,60,000 dollars, the balance remaining outstanding as a debt due to the firm.
Limitations on the admission of the members to the company and other attendant features indicates an intention of conserving the properties of the members of the firm The Memorandum of Association of the company specified, inter alia the following objects: (i) to purchase or acquire and to sell, turn to account, dispose of and deal with property and rights of any kind, and (ii) to sell, manage, develop or dispose of or otherwise deal with any part of the properties, rights and privileges of the company.
Large amounts of money were spent on cultivation and development of rubber and coconut plantations and substantial in come was derived therefrom but certain uneconomical and inconvenient plots were sold by the company in 1940 and 1941.
Between the years 1942 and 1945, when Malaya was under Japanese occupation, some further plots of land were sold.
Thereafter, in 1948, 1949 and 1950, lands were sold from time to time at profit.
As a result of these disposals, the total holding of the company was reduced to about 2,000 acres of rubber estates.
some houses and the 719 Lee estate.
The question was whether the profits realised by the company during the accounting year relevant to the assessment year 1951 52 from the sale of the properties to the tune of 1,41,326 Malayan dollars could be brought to tax ? on these facts this Court Id that the primary object of the company was to take over the sets of the firm, to carry on the business of planters and to earn profits by the sale of rubber: the acquisition of the estates was not for the purposes of carrying on business in real estate.
This Court further held that the incidental sale of uneconomical or inconvenient plots of land could not convert what was essentially an investment into a business transaction in real estate.
The amount of 1,41,326 Malayan dollars being capital accretion was not chargeable as income.
Such conclusion was reached notwithstanding that the Memorandum of Association of the company conferred power on it to sell or turn to account, dispose of or deal with the properties and rights of all kinds.
This Court clarified the significance of three aspects thus: (a) the purposes or object for which a limited company was incorporated had no decisive bearing on the question at issue, (b) the circumstance that a single plot of land was acquired and was thereafter sold as a whole or in plots was not decisive and (c) nor was profit motive in entering into a transaction decisive, but the question whether in purchasing and selling land the tax payer entered upon a business activity had to be determined in the light of the facts and circumstances.
In the instant case also the main question that arises for determination is whether, after acquiring leasehold interest in Zamindari Estate in granting the several sub leases of coal bearing lands and mines and receiving the salami and premia and in receiving compensation for compulsory acquisition of its lands the assessee dealt with its leasehold interest in the lands as a land owner or carried on business with it treating it as its stock in trade or trading asset ? It is obvious that if the case falls within the former category the receipts by way of salami, premia and compensation will be capital receipts but if it falls within the latter the receipts will be trading receipts and profits therefrom business income.
Having regard to the ratio of the decision in Karanpura Development Co 'section case (supra) it is clear that for deciding that question regard must be had to the real nature and object or purpose of the transactions entered into by the assessee over the years.
Before we proceed to examine the nature and object or purpose of the transactions we would like to point out how and where the High Court has gone wrong in answering the issue against the assessee.
In the first place the High Court has erroneously treated the assessee as a trading concern qua its leasehold interest in the Zamindari/estate without actually examining the real nature and object of the transac 720 tions of sub leases entered into by the assessee with several colliery companies.
Secondly, in arriving at that conclusion the High Court has been greatly influenced by three factors (a) existence of the power in its Memorandum of Association enabling the assessee to indulge in trafficking in land by way of sub leases of the land, (b) declaration of dividend at a high rate of 25% by the assessee for the relevant years and (iii) creation of reserve fund by the assessee pursuant to certain Articles of Association and the High Court has given such undue weight to these factors that it was almost regarded them as decisive factors.
P.K.N. Co 's case (supra) has clearly laid down that the existence of the power in the Memorandum of Association to traffic in sub leases of lands though relevant would clearly be not decisive.
In our view, declaration of dividends and creation of a reserve fund are not features peculiar to a trading concern, for, it is equally conceivable that a non trading incorporated entity like an investment company can declare dividends and may also create a reserve fund and, therefore, these so called 'special features ' are not decisive of the question whether the incorporated entity is a trading concern or not.
In deciding that question what is of importance is how it has dealt with its assets or properties, whether as a land owner or a trader treating the assets or properties as its stock in trade and it is the manner of dealing with its assets, the real nature of the operations pertaining to them and the object with which such operations are done that assume importance.
This aspect has not been properly considered by the High Court.
Looking at the issue from the aforesaid angle there are several facts and circumstances emerging from the record which clearly show that the assessee has been dealing with its leasehold interest in Zamindari property as a land owner and not as a trader.
In the first, place, as has been rightly found by the Tribunal, the assessee was primarily incorporated for the purpose of preservation and management of the family estate of the lessors.
This is clear from cl. 3 (a) of the Memorandum of Association, Article 3 of the Articles of Association and the terms and conditions set forth in the Draft Agreement in accordance with which the Indenture dated July S, 1920 was executed.
That this was the primary object also becomes clear from the facts that a nominal quit rent of Rs. 100/ per year was payable by the assessee to the lessors for the lease of the Zamindari Estate obtained by it for 999 years and that alongwith the lease the assessee also obtained an assignment of moveables including Government promissory notes and jewellery belonging to the members of the lessors ' family; assignment of Government promissory notes and jewellery could only be for preservation and better management.
The High 721 Court felt what militated against the concept of the assessee being purely a family concern incorporated for the purpose of preservation and management of family assets for the maintenance of lessors ' family was that no provision has been made in its Memorandum of Association and Articles of Association conferring any right or share on new members that may be born in the Mitakshara Joint Family of the lessors but it is difficult to appreciate this view.
On the other hand, allotment of shares of the assessee to a few members of the lessors ' family and absence of a provision conferring any right or interest in the shares on the new arrivals in the family would be more conducive to preservation and proper management of the family assets.
Secondly, admittedly since 1920 up to date the assessee had not taken lease of any other property from any one else except the lease of the Zamindari Estate under the Indenture dated July S, 1920, a pointer to the fact that the assessee did not indulge in any business of acquiring other lands.
Thirdly, and this is vital the manner in which the assessee dealt with the leasehold interest in Zamindari Estate obtained under the Indenture dated July 5, 1920, over the years clearly shows that the transactions of granting sub leases of coal bearing lands and mines ere by way of management of the Estate as land owner.
The Tribunal in its earlier order dated June 7, 1960 for the assessment years 1946 47, 1947 48 and 1948 49 a copy of which had been made a part or the record of the case, has brought out certain relevant facts in that behalf.
The Tribunal has pointed out that during the first 11 years of its incorporation the assessee did not grant any sub lease of land to any one.
In 1339 B.S. the assessee received a sum of Rs. 7,500/ on account of salami or premia from Burrakur Coal Co. Ltd., a party who was already a lessee under the predecessors of the assessee in respect of coal mining right in mouza Bankola; in 1340 B.S. there was another lease granted to the said coal company where the premium was 2,893 7 0.
Thereafter for several years there was no lease granted to anybody.
In 1349 B.S. another lease was granted to the same Burrakur Coal., the premium being Rs. 2268 12 0.
In 1350 B.S. there was no lease granted to anybody.
Then between 1351 B.S. and 1354 B.S. several sub leases of different parcels of coal bearing lands and mines were granted by the assessee to well known companies for varying terms of long duration extending over 900 years for which the assessee received salami and premium but the fact that such sub leases were for long duration extending to over 900 years dearly shows that the same parcel of land had been dealt with only once for granting the sub leases.
In the three accounting years relet to the assessment years in question in the instant case also sub 722 leases had been granted of different parcels for long duration of over 900 years.
Such manner of dealing with lease hold interest by the assessee over the years clearly shows that these transaction of granting sub leases were in the nature of acts done in the management of the Estate.
The object in granting such sub leases was not to deal with the lease hold interest as a stock in trade or trading asset.
The dealings cannot be regarded as business transactions in real property.
Fourthly, though the Memorandum of Association empowered the assessee to do business in collieries, admittedly it did not in fact run or work any colliery on its own nor did any business as miners or coal dealers or coke manufacturers, mica dealers, etc.
Having regard to the above facts it seems to us clear that the receipts on account of salami, and premia received by the assessee during the accounting years in question, must be regarded as receipts of a capital nature.
So far as the amounts of compensation received by the assessee for compulsory acquisition or portions of land are concerned, the same would obviously partake the character of capital receipt inasmuch as compulsory acquisition could not be said to be a voluntary transaction or a voluntary deal entered into by the assessee with the Land Acquisition Collector and the compensation would be a substitute for the capital asset lost by the assessee.
In our view, therefore, the High Court had erred in answering the question in favour of the Revenue and the Tribunal 's view that the receipts in question were receipts of a capital nature and.
therefore, not includible in total income of the assessee, was correct.
In the results the appeals are allowed and the Revenue will pay the costs of the appeals to the assessee.
P.B.R. Appeal allowed.
| The appellant, a dissolved firm as originally constituted on April 1, 1959, consisted of four partners and carried on different business in different names and styles.
The firm was dissolved on March 31, 1963 and under the deed of dissolution executed by and between the partners, the first business concern was taken over by one of the partners, the remaining concerns by two of the other partners and the fourth partner received, a sum of money in lieu of his respective shares in the assets of all the businesses of the firm.
During the four assessment years 1960 61 to 1963 64 the firm had installed various items of machinery in respect of which it received development rebate in its respective tax assessments under section 33 of the Act.
On dissolution of the firm on March 31, 1963, the Income tax officer took the view that section 34(3)(b) of the Act applied on the ground that there was a sale or transfer of the machinery by the firm within the period mentioned in that section and accordingly acting under section 155(5) of the Act he withdrew the development rebate allowed to the firm for the said assessment years, the amending orders being passed against the dissolved firm.
The appeals preferred by the dissolved firm through one of its erstwhile partners, were dismissed by the Appellate Assistant Commissioner who held that section 155(5) was rightly resorted to since section 34(3)(b) of the Act applied to the case.
The Income tax Appellate Tribunal allowed the appeals by the dissolved firm holding that there was no question of any sale or transfer within the meaning of section 34(3)(b) in a transaction involving the adjustment of the rights of the partners of a dissolved firm, but at the instance of the Revenue (Respondent) referred two questions of law to the, 'High Court viz. (a) whether there was only an adjustment of the mutual rights of the partners and the provisions of section 34(3) were not applicable and (b) whether there was a transfer of assets with in the meaning of the words 'otherwise transferred ' occurring in section 34(3) (b) of the Act.
The High Court answered the second question in the affirmative and against the assessee holding that a dissolution of a firm amounted to extinguishment of the rights of the firm in the assets of the partnership and accordingly was a transfer within the meaning of section 2(47) of the Act and that, therefore the provisions of section 34(3)(b) applied to the case.
697 Allowing the appeals to this Court, ^ HELD: 1.
There is no transfer of assets involved even in the sense of any extinguishment of the firm 's rights in the partnership assets when distribution takes place upon dissolution.
[709 F] 2.
Section 34(3) (b) of the Act is not applicable to the case an(l the view of the Tribunal is upheld.
[710 E] 3.
The firm as such has no separate rights of its own in the partnership assets but it is the partners who own jointly in common the assets of the partner ship and, therefore, the consequence of the distribution, division or allotment of assets to the partners which flows upon dissolution after discharge of liabilities is nothing but a mutual adjustment of rights between the partners and, there is no question of any extinguishment of the firm 's rights in the partnership assets amounting to a transfer of assets within the meaning of section 2(47) of the Act.
[709 E] 4.
On a plain reading of section 34(3) (b) it will appear clear that before that provision can be invoked or applied three conditions are required to be satisfied: (a) that the ship, machinery or plant must have been sold or otherwise transferred, (b) that such a sale or transfer must be by the assessee and (c) that the same must be before they expiry of eight years from the end of the previous year in which it was acquired or installed.
It is only when these three conditions are satisfied that any allowance made under section 33 shall be deemed to have been wrongly made and the Income tax officer acting under section 155(5) will be entitled to withdraw such allowance.
[703 C D] 5.
Section 2(47) gives an artificial extended meaning to the expression 'transfer ' for, it not merely includes transactions of 'sale ' and 'exchange ' which in ordinary parlance would mean transfers but also 'relinquishment ' or 'extinguishment of rights ' which are ordinarily not included in that concept.
[703 E] 6.
In Commissioner of Income Tax vs Dewas Cine Corporation, , the concept of distribution of assets consequent upon the dissolution of the firm was considered in the context of the balancing charge arising under the second proviso to section 10(2) (vii) of the 1922 Act.
This Court held that the expression "sale or sold" when used in section 10(2)(vii) and the second proviso thereto must be understood in their ordinary meaning and that "sale" according to its ordinary meaning meant a transfer of property for a price, and further enunciated the proposition that the distribution of surplus upon dissolution of a partnership after discharging debts and obligations was always by way of adjustment of rights of partners in the assets of the partnership and did not amount to a transfer such less for a price.
The question of raising a balancing charge against the dissolved firm, a separate taxable entity which had been allowed depreciation in the earlier years, was also considered by the Court and it took the view that no balancing charge arose against the firm inasmuch as no sale or transfer was involved in the transaction of distribution of the assets to erstwhile partners of the firm consequent upon its dissolution.
[703G, 704 E G] 7.
In Bankey Lal Vaidya 's case, , the concept of distribution of assets to the partners of a firm consequent upon its dissolution was considered in the context of the charge on capital gains arising under section 128(1) of the 1922 Act.
This Court observed that the rights of the parties were adjusted by handing 698 over to one of the partners the entire assets and to the other partner the money value of his share and such a transaction was neither a sale nor exchange nor transfer of the assets of the firm.
[704 H, 705 D] 8.
(i) It is well known that commercial men and accountants on the one hand and lawyers on the other have different notions respecting the nature of the firm.
[705 H] (ii) Commercial men and accountants are apt to look upon a film in the light in which lawyers look upon a corporation i.e. as a body distinct from the members composing it, and having rights and obligations distinct from those of its members.
[706 B] (iii) The firm is not recognised by English lawyers as distinct from the members composing it.
What is called the property of the firm is their property, and what are called the debts and liabilities of the firm are their debts and their liabilities.
[706 G, H] Lindley on Partnership 12th Edn.
27 and 28; referred to.
In English jurisprudence a firm is only a compendious name for certain persons who carry on business or have authorised one or more of their number to carry it on, in such a way that they are jointly entitled to the profits and jointly liable for the debts and losses of the business.
Further, partnership property is regarded as belonging to the firm, but this is only for the purpose of distinguishing the same from the separate property of the partners.
But, in law the partnership property is jointly owned by all the partners composing the firm.
[707 B C] 10.
The position as regards the nature of a firm and its property in Indian Law under the is almost the same as in English law.
Here also a partnership firm is not a distinct legal entity and the partner ship property in law belongs to all the partners constituting the firm.
The Indian Act, like the English Act avoids making a firm a corporate body enjoying the right of perpetual succession, [708 B, E] Bhagwanji Morarji Goculdas vs Alembic Chemical Works Co. Ltd. and Ors., ; referred to.
A partnership firm under the is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm 's property or firm 's assets all that is meant is property in which all partners have a joint or common interest.
[709 C] Addanki Narayannappa and Anr.
vs Bhaskara Krishnappa and 12 Ors., , referred to.
Every dissolution must in point of time he anterior to the actual distribution; division or allotment of the assets that takes place after making accounts and discharging the debts and liabilities due by the firm.
Upon dissolution the firm ceases to exist; then follows the making of accounts, then the discharge of debts and liabilities and thereupon distribution, division or allotment of assets takes place inter se between the erstwhile partners by way of mutual adjustment.
of rights between them.
The distribution, division or allotment of assets to the 699 erstwhile partners, is not done by the dissolved firm.
In this sense there is no transfer of assets by the assessee (dissolved firm) to any person.
[710 C] 13.
The view Of the High Court that thy.
distribution of assets effected by a deed takes Place eo instanti with the dissolution or that it is effected by the dissolved firm not accepted.
[710 D]
|
ivil Appeal Nos.
537 539 of 1970.
Appeals by Special Leave from the Judgment and Order dated 20 8 1968 of the Madhya Pradesh High Court in Misc.
Petition Nos. 282, 283 and 293 of 1968.
section K. Gambhir for the Appellant.
section section Khanduja for the Respondents.
787 The Judgment of the Court was delivered by UNTWALIA, J.
These three appeals by special leave are from the common judgment of the Madhya Pradesh High Court allowing the Writ Petitions filed by the six respondents and quashing the orders of their transfer made by the State Government in exercise of their power under section 94(7) of the Madhya Pradesh Municipalities Act, 1961, hereinafter called the Act.
The respondents were employees of the Municipal Council, Sagar.
They were employed as lecturers and teachers in the various Municipal Higher Secondary Schools run and managed by the said Municipal Council.
Three orders were issued by the State Government on various dates in June, 1968 transferring certain lecturers and teachers serving under a particular Municipal Council to the schools run and managed by another Municipal Council.
The six respondents were transferred by the said orders to various places.
They challenged the order of transfer in the High Court on the ground that the State Government had no power to transfer them under section 94(7) of the Act.
The High Court has accepted their contention and hence these appeals.
We shall quote the relevant provisions of section 94 of the Act as they stood at the relevant time from the judgment of the High Court.
There have been some amendments in the year 1973 with which we are not concerned.
They read as follows: "94.
Appointment of staff: (1) Every Council having an annual income of five lakhs of rupees or more shall, subject to rules framed under section 95, appoint a Revenue Officer and an Accounts Officer and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties.
(2) Every Council not falling under sub section (1) shall, subject to rules framed under section 95, appoint a Sanitary Inspector, an Overseer, a Revenue Inspector, and an Accountant and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties: . . . . . . . . (7) The State Government may transfer any officer or servant of a council mentioned in sub sections (1) & (2) and in receipt of total emoluments exceeding one hundred rupees to any other Council.
" 788 The High Court has taken the view that the words "any officer or servant of a Council mentioned in sub sections (1) and (2)" occurring in sub section
(7) mean "any officer or servant as enumerated or specified in sub sections
(1) and (2): that is to say, the officers who can be transferred under sub section
(7) are only Revenue Officer, Accounts Officer, Sanitary Inspector and an Overseer, a Revenue Inspector or an Accountant.
No other officer or servant can be transferred.
We do not think that the High Court is right in putting this restricted interpretation to sub section
(7) of section 94.
Other officers and servants who can be appointed by the Municipal Councils either under sub section
(1) or under sub section
(2) are also the officers and servants mentioned in these sub sections for the purposes of sub section
Theoretically, therefore, the power does exist in the State Government to transfer them.
We must, however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine.
If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Municipal employees getting small salaries.
There may be hardly an employee serving under any Municipal Council who cannot be theoretically and literally covered by sub sections
(1) and (2) and subjected to the exercise of power of transfer under sub section
The High Court in support of its view has referred to sub section
(4) of section 94 wherein only the officers enumerated in sub sections
(1) and (2) are specified.
Obviously the said sub section does not cover the cases of other officers and servants as mentioned in sub sections
(1) and (2).
The language of sub sec.
(7) is in contrast to that of sub section
(4) and, instead of lending support to the view of the High Court, goes against it.
It was argued for the respondents that they are employees of the Schools run and managed by the Municipal Councils but not of the Councils themselves.
We do not think that this argument has got any substance.
Education department is one of the departments of a Municipal Council.
Duties of the Council are enumerated in sub section
(1) of section 123, clause (v) which provides for "establishing and maintaining primary schools".
Under section 124 "a Council may, at its discretion, provide, either wholly or partly out of the Municipal property and fund, for all or any of the following matters, namely (c) furthering educational objects." Thus establishment and running of Higher Secondary Schools by Municipal Councils are envisaged under the Act and the lecturers and teachers appointed in the various schools 789 are undoubtedly the officers and servants of the Municipal Councils.
For the reasons stated above we hold that the State Government had the power to transfer the respondents.
But it is not clear why the power was exercised in the case of the respondents.
In any event, learned counsel for the appellant assured us that the State is more anxious for the correct interpretation of the law engrafted in section 94(7) of the Act than to enforce the order of transfer against the respondents.
In the result while clarifying the position of law, we dismiss the appeals but make no order as to costs.
N.K.A. Appeals dismissed.
| The respondents were employed as lecturers and teachers in the various Municipal Higher Secondary Schools run and managed by a Municipal Council in the State.
The State Government transferred certain lecturers and teachers serving under a particular Municipal Council to the Schools run and managed by another Municipal Council.
The respondents writ petition challenging the order of their transfers was allowed by the High Court on the ground that no officer other than those mentioned in section 94(7) namely Revenue Officer, Accounts Officer etc.
could be transferred.
In the State 's appeal the respondents contended that they were employees of schools run and managed by Municipal Councils but not of the Councils.
^ HELD: 1.
The High Court was not right in putting a restricted interpretation on section 94(7) of the Act.
The other officers and servants who can be appointed by the Municipal Councils under sub section (1) or sub section (2) of Section 97 are also officers and servants mentioned in these sub sections for the purposes of sub section (7).
Theoretically, therefore, the power does exist in the State Government to transfer them.
[788 B C] 2.
The argument that the respondents are the employees of schools run and managed by the Municipal Councils but not of the councils themselves has no substance.
Education department is one of the departments of a Municipal Council.
Section 124 envisages the establishment and running of Higher Secondary Schools by Municipal Councils and therefore the lecturers and teachers appointed in the various schools are officers and servants of the Municipal Councils.
[788 G H, 789 A] 3.
In case of employees getting small emoluments the power to transfer should be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine.
[788 C D]
|
Appeals Nos. 279 and 280 of 1955.
Appeal from the Judgment and Order dated July 7 1953, of the Assam High Court in Civil Rules Nos. 147 and 148 of 1952, 47 360 C. K. Dophtary, Solicitor General of India, P. K. Goswami, section N. Mukherji and B. N. Ghosh, for the appellants in both appeals.
Purshottam Tricumdas and Naunit Lal, for respondent No. 2 in C.A. No. 280/56.
Naunit Lal, for respondent No. I in both Appeals.
December 21.
The Judgment of the Court was delivered by BHAGWATI J.
,These two appeals with certificates under article 133 (1) (c) of the Constitution are directed against a judgment of the High Court of Judicature in Assam dismissing the appellants ' application under article 226 challenging the orders of the first respondent Shri B. L. Sen, Deputy Commissioner, Sibsagar, whereby he allowed the applications filed on behalf of the labourers employed in the Teok Tea Estate and the Dalim Tea Estate under section 20 of the (Act XI of 1948), hereinafter referred to as the Act.
On March 11, 1952, the Government of Assam, in exercise of the powers conferred by section 3 read with sub section
(2) of section 5 of the Act issued the following notification: " No. GLR.
352/51/56.
In exercise of the powers conferred by section 3 read with sub section (2) of section 5 of the (XI of 1948), as amended, the Governor of Assam, having considered the advice of the committee appointed under clause (a) of sub section (1) of section 5 of the said Act, is pleased to fix minimum wages, which will come into force with effect from the 30th March, 1952, consisting of basic wages and dearness allowance in terms of clause (1) of sub section 1 of section 4 of the said Act, at the rates as specified in the schedule hereto annexed payable to employees employed in tea plantations in the different districts of Assam.
These rates are exclusive of concessions enjoyed by the workers in respect of supplies of foodstuffs and other essential commodities and other amenities which will continue unaffected.
The existing 361 tasks and hours of work may continue until further orders.
SCHEDULE.
ORDINARY UNSKILLED LABOUR Adult male.
Adult female.
(16 years & above) (16 years & above) Basic D.A. Total.
BasicD.A.Total.
(p.d.) (p.d.) (p.d.)(p.d.)(p.d.)(p.d.
Rest Rs. Rs. of Assam As.12/ As.6/ 1 /21 As.
11/ As.
5 Valley.
By notification No. GLR. 44/51, dated the 16th April, 1952, the said Government introduced the Minimum Wages Rules which, inter alia, provided: "Rule 24.
Number of hours of work which shall constitute a normal working day. (1) The number of hours which shall constitute normal working day shall be (a)in the case of an adult, 9 hours; subject to a maximum of 48 hours in a week; . . . . . . . . . " By another notification No. GLR. 352/51 dated May 12, 1952, the said Government explained that the word " may " mentioned in the notification dated March 11, 1952, will have the force of " shall ".
The result was that in cl.
(2) of the said notification, the last sentence ran as: "The existing tasks and hours of work shall continue until further orders.
Prior to the fixation of the minimum wages (consisting of basic wages and dearness allowance as aforesaid, the labourers engaged in plucking tea leave,% in these tea estates used to be paid basic wages for male labourers at as.
8/ per day for plucking 16 seers of green leaves and for female labourers at as.
6/ per day for plucking 12 seers of green leaves.
This was the work load or task in respect of which the basic wages of as.
8/ and as.
6/ respectively were paid to these labourers apart from the dearness allowance in addition to such basic wages.
If the labourers plucked larger quantities of green leaves they used to be 362 paid by way of ticca extra wages at the rate of 6 ps.
per seer in excess of 16 seers and 12 seers respectively.
It may be noted that the payment of basic wages on the above computation also worked out at the rate of 6 ps.
per seer of green leaves plucked by the labourers.
Even after the fixation of the minimum wages by the said notification, the managers of these tea estates continued to pay to the labourers wages at the rate of 6 ps.
per seer of green leaves plucked by them.
They, however, in view of the fact that as.
12/ per day were fixed as the basic wages for the male labourers and as.
II / per day as the basic wages for the female labourers, refused to make any extra payment to them on the basis of 6 ps.
per seer unless the green leaves plucked by them exceeded 24 seers and 22 seers respectively, thus maintaining their old standard of payment on the basis of 6 ps.
per seer.
The labourers contended that the existing work load or task at the date of the said notification was 16 seers for male labourers and 12 seers for female labourers and they were entitled to such extra payment at the rate of 6 ps.
per seer for leaves plucked by them in excess of the 16 seers and 12 seers respectively.
There was a difference thus in payment, of as.
4/ per day in the case of male labourers and as.
51 per day in the case of female labourers and they claimed that the managers of the tea estates should pay them the basic wages of as.
12/per day and as.
I I/ per day respectively for the work load or task of 16 seers for male labourers and 12 seers for female labourers and extra wages at the rate of 6 ps.
per seer of leaves plucked by them in excess of those quantities.
This claim of theirs was the subject matter of the applications filed on their behalf before the Deputy Commissioner, Sibsagar, under section 20(2) of the Act.
The applicants asked for directions under a. 20(3) to the managers, of the tea estates for payment of the difference between the minimum wages fixed by the Government and the wages actually paid to them from March 30, 1952, which was the date from which the notification came into force.
The managers of the 363 estates contested these applications mainly on two grounds; viz., (1) that the applications were not maintainable under section 20 of the Act, and (2) that there was no fixed workload or task in respect of plucking for earning daily basic wages before the introduction of the minimum wages.
The Deputy Commissioner, Sibsagar, who was the authority appointed under the Act to hear the claims arising out of the payment of less than the minimum rates of wages to these labourers, entertained the applications, recorded evidence and heard arguments addressed to him by both the parties.
As regards the first objection, he held that, if the applicants ' version was true there was a clear case of payment of less than the minimum wages fixed by the Government and the applications were maintainable under section 20 of the Act.
As regards the second objection, he came to the conclusion on the evidence recorded before him that there was a work load or task of 16 seers for male labourers and 12 seers for female labourers in respect of the daily basic wages of as.
8/ and as.
6/ respectively earned by them before the fixation of the minimum wages by the said notification, that such work load or task was the basis of the fixation of the minimum wages consisting, inter alia, of the basic wages of as.
12/ per day for male labourers and as.
II/ per day for female labourers and that the labourers were, therefore, entitled to extra payment for green leaves plucked by them in excess of 16 seers and 12 seers respectively at the rate of 6 ps.
per seer.
He accordingly ordered that the managers must pay the labourers engaged in plucking tea leaves the minimum basic wages at the rate of as.
12/ per day to the male labourers for 16 seers of green leaves and as.
11/ per day to the female labourers for 12 seers of green leaves and extra wages at the rate of 6 ps.
per seer for green leaves plucked in excess of those quantities.
The managers of the estates thereupon filed applications under article 226 of the Constitution before the High Court of Judicature in Assam raising the same contentions which had been negatived by the Deputy Commissioner, Sibsagar.
The High Court dismissed 364 these applications and granted the certificates under article 133(1)(c) and that is how these appeals come before us.
It is urged in the first instance that the notification dated March 11, 1952, fixed only I a minimum time rate ' and no more.
Under section 3 (2) of the Act it was competent to the Government to fix (a) a minimum rate of wages for time work (called " a minimum time rate"), (b) a minimum rate of wages for piece work (called " a minimum piece rate ") or (c) a minimum rate to be applied in the case of employees employed on piece work for the purpose of securing to such, employees a minimum rate of wages on a time work basis (called " a guaranteed time rate ") and what was done by the Government was to fix " a minimum time rate" within the meaning of section 3 (2) (a) so that the labourers were to be paid the basic wages mentioned in the Schedule regardless of their out turn of work.
If this contention is correct, the labourers would not be entitled to any extra wages for the quantities of green leaves plucked by them in excess of the 16 seers or 12 seers per day which was alleged to be the existing work load or task at the date of the notification.
It is, therefore ', urged that prior to such fixation of minimum wages there was no work load or task for the labourers engaged in plucking tea leaves.
This contention is obviously unsound.
Both the Deputy Commissioner, Sibsagar, and the High Court found as a fact that before the fixation of the minimum 'wages as above, there was a basic work load or task of 16 seers of leaves for the male labourers and 12 seers of leaves for the female labourers.
This was proved by the evidence of the Hazira Moharers of these estates and this was recognized by the Government itself when it stated in the notification that " the existing tasks and hours of work shall continue until further orders.
" If the minimum basic wages were fixed irrespective of existing work load or task and what was fixed was " a minimum time rate " as contended by the appellants there was no need whatever to mention this in the notification.
The direction that the existing workload or task was to continue until further orders on the 365 contrary goes to show that the basic wages mentioned in the Schedule were correlated to the existing workload or task and as.
12/ for the male labourers and as.
11/ for the female labourers were fixed in regard to the existing work load or task of 16 seers of tea leaves to be plucked by the male labourers and 12 seers of tea leaves to be plucked by the female labourers.
It is argued that the continuance of the existing work load or task which was thus provided for had no relation to the basic wages which were fixed for the male and female labourers respectively but was only intended to prevent the employers from increasing the existing work load or task with a view to make up for the increase in basic wages.
This argument, however, does not take count of the fact that there was existing at the date of the notification a work load or task which was the basis of the payments used to be made to the labourers, the basic wages paid to them being calculated at the rate of 6 ps.
per seer of tea leaves plucked by them.
The labourers were thus being paid the basic wages of as.
8/ for male labourers and as.
6/for female labourers for the work load or task of plucking 16 seers and 12 seers of tea leaves respectively and the sole intention of the Government in issuing the notification was to increase these basic wages of as. 8/and as.
6/ to as.
12/ and as.
II/ respectively while maintaining the same basic work load or task assigned to the male and female labourers.
If the intention was not to correlate these basic wages to the basic work load or task which already existed and if the same state of affairs was to continue, viz., that the labourers would continue to be paid the basic wages on the computation of 6 ps.
per seer of green leaves plucked by them, there was no sense whatever in increasing the basic wages from as.
8/ to as.
12/ for male labourers and from as.
6/ to as.
II/ for female labourers as was sought to be done by issuing the notification in question.
The acceptance of the contention of the appellants would mean that no advantage whatever was sought to be conferred by the Government on the labourers engaged in plucking leaves in these tea estates which intention can scarcely be 366 attributed to the Government.
We are, therefore, of opinion that what was fixed by the notification was not merely " a minimum time rate" irrespective of the existing work load or task which used to be performed by the labourers but was a ' minimum wage which, though fixed for time work, was necessarily correlated to the work load or task then being performed by these labourers so that whatever extra work was done by the labourers in excess of the existing work load or task of plucking 16 seers of tea leaves in the case of male labourers and 12 seers of tea leaves in the case of female labourers had to be paid for in accordance with the practice then prevailing, whether it was based on agreement or ticca or custom, at the rate of 6 ps.
per seer.
The conclusions reached in this behalf both by the Deputy Commissioner, Sibsagar, and the High Court are, therefore, correct and cannot be challenged.
The appellants, however, contend that this is not a case of payment of less than the minimum rates of wages and the claims, if any, of the labourers do not fall within section 20 of the Act.
The tea estates in question have never refused to pay and are in fact paying to the labourers the basic wages of as.
12/ per day for male labourers and as.
II / per day for female labourers and the grievance, if any, of the labourers is that they have not been paid the extra wages calculated on the basis of 6 ps.
per seer for tea leaves plucked by them in excess of the basic work load or task of 16 seers for male labourers and 12 seers for female labourers.
This claim of the labourers, therefore, amounts to a claim for extra wages over and above the basic wages of as.
12/ and as.
II/ per day respectively which are being paid to them and, therefore, is not a claim arising out of the payment of less than the minimum rates of wages within the meaning of section 20(1) of the Act and the Deputy Commissioner, Sibsagar, had no jurisdiction to entertain such claim.
Section 20 so far as is material for our purposes provides: " 20.
Claims. (1)The appropriate Government may, by notification in the official Gazette, appoint any Commissioner 367 for Workmen 's Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages to employees employed or paid in.
that area.
(2)Where an employee is paid less than the minimum rates of wages fixed for his class of work under this Act, the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority appointed under sub section (1), may apply to such Authority for a direction under sub.
section (3):. . . (3)When any application under sub section (2) is entertained, the Authority shall hear the applicant and the employer or give them an opportunity of being heard, and after such further enquiry if any as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid,, together with the payment of such compensation as the Authority may think fit, not exceeding ten times the amount of such excess and the Authority may direct payment of such compensation in cases where the excess is paid by the employer to the employee before the disposal of the application.
(6) Every direction of the Authority under this section shall be final.
It is argued that the authority appointed under section 20(1) of the Act is invested with the powers of hearing and deciding claims arising out of the payment of less than the minimum rates of wages and is authorised to hear the applicant and the employer or give them an opportunity of being heard, and, after such further enquiry, as it may consider necessary, to give directions under section 20(3) of the Act which directions are final and not subject to any appeal or 368 revision by any higher authority.
Such drastic powers could not have been meant to be exercised when there are complicated questions of law or fact but could be exercised only in cases where the, quantum of minimum wages fixed by the notification in question could be determined by the authority on a plain reading of the terms, thereof.
Then and then only would the authority have jurisdiction to entertain such claims and give the necessary direction,% having the attribute of finality.
In the instant cases before us, not only did the matters involve complicated questions of fact which required recording of evidence by the authority but they also involved the construction of the notification which was by no means felicitously worded.
The existing tasks which were to continue until further orders were not at all patent and if the determination thereof had to be made by the authority appointed under section 20(1) of the Act, it would involve, in cases of dispute, recording of considerable evidence and an adjudication of the same after a consideration of the arguments advanced before the authority by both the parties.
There is in the instant cases moreover a further difficulty and it is that there are two rival contentions which can, with equal force, be urged by the respective parties.
The appellants contend that they have all throughout been paying to the laborers, after the date of the notification in question, basic wages at the rate of as.
12/ per day for male labourers and as.
1 1 / per day for the female labourers and there is no instance which has been cited on behalf of the respondents where, anything less then the minimum basic wages thus fixed by the Government has ever been paid.
The claim of the labourers comes to this that they have not been paid the extra wages for plucking green leaves in excess of the basic work load or task of 16 seers and 12 seers respectively.
Such claim for extra wages certainly does not amount to a claim arising out of the payment of less than the minimum rates of wages.
It is, on the other hand, contended on behalf of the respondents that the basic wages of as.
12/. per day for male labourers and as.
II/ per 369 day for female labourers fixed under the notification are correlated to the existing work load, or task of plucking green leaves weighing 16 Beers and 12 seers respectively and if they are entitled to the payment of these basic wages on their putting forward that much quantity of work, the non payment by the managers.of these tea ' estates to them of any extra wages on the computation of 6 ps.
per extra seer un less they plucked 24 seers and 22 seers of green leaves respectively is tantamount to nonpayment of the; minimum basic wages of as.
12/ and as.
11/ respectively as fixed in the notification.
"We do not, propose to decide this question of jurisdiction as in the instant cases we have, in addition to the determination of the Deputy Commissioner, Sibsagar, the adjudication of the main disputes between the parties by the High Court itself.
I Whatever infirmities might possibly have attached to the orders passed by the Deputy Commissioner, Sibsagar, on the score of want of jurisdiction, we feel that having regard to the circumstance that the matters have been pending since September, 1952, right up to the end of the year 1956, no useful purpose will be served by our interfering at this stage, as the Deputy Commissioner, Sibsagar, and the High Court both came to the same conclusion, a conclusion which we also have endorsed above, that the labourers are entitled to be paid the basic wages of as.
12/ per day,for male labourers and as.
11/ per day for female labourers for the work.:load or task of plucking 16 seers and 12 seers of green leaves respectively and they are entitled to extra wages for every seer of green leaves plucked by.
them I over and above these quantities of 16 seers and 12 ,seers respectively, at the.
computation of 6 Ps.
per seer.
There are moreover special reasons why we should not interfere with the orders of the Deputy Commissioner, Sibsagar, in these appeals.
The matters do not come to us by way of appeal directly from the orders of the Deputy Commissioner, Sibsagar.
They were the subject, in the first instance, of proceedings under article 226 of the Constitution in the High Court 370 of Assam.
Proceedings by way of certiorari are not of course ".
(Vide Halsbury 's Laws of England ', Hailsham Edition, Vol. 9, para 1480 and 1481, pp. 877 878).
The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed, against the orders of the High.
Court in applications under article 226, we could refuse to interfere unless we are satisfied that the justice of the, case requires it.
But we are not so satisfied.
We are of opinion that, having regard to the merits which have been concurrently foundint favour of the respondents both by the De Duty Commissioner,, Sibsagar, and the High (Court, we should decline to interfere.
This being the point of substance which has been decided in favour of the respondents, we are of the opinion that the appeals are liable to be dismissed.
We accordingly dismiss them but having regard to the particular circumstances which we have adverted to before, we order that each party will bear and pay its own costs of these appeals.
Appeals dismissed.
| The labourers were being paid the basic wages of as.
8/ for male labourers and as.
6/ for female labourers for the work load or task of plucking 16 seers and 12 seers of green tea leaves respectively each day.
If the labourers plucked larger quantities of leaves they were paid extra wages at the rate of 6 Ps.
per seer in excess of 16 seers and 12 seers respectively.
The Government issued a notification under section 3 read with section 5 (2) of the , increasing the rates of basic wages to as.
I2/and as.
11/ respectively.
The management thereafter refused to make any extra payment to the labourers at the rate of 6 Ps.
per seer unless the leaves plucked by them exceeded 24 seers and 22 seers respectively.
Held, that the sole intention of the Government in issuing the notification was to increase the basic wages while maintaining the same basic work load or task assigned to the labourers, so that whatever extra work was done by the labourers in excess of the existing work load or task of plucking 16 seers and 12 seers of tea leaves by the male and female labourers respectively, bad still to be paid for at the rate of 6 Ps.
per seer.
Quaere: Whether the claim for the extra wages amounts to a claim arising out of the payment of less than the minimum rates of wages within the meaning of section 20 (2) of the .
A writ of certiorari cannot be had as a matter of course.
The High Court is entitled to refuse the writ if it is satisfied that there was no failure of justice.
The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference.
|
: Criminal Appeal No. 126 of 1977.
Appeal by Special Leave from the Judgment and Order dated the 12 1 1976 of the Punjab and Haryana High Court in Crl.
A. No. 583/ 72 R.N. Sachthey and H.S. Marwah for the Appellant.
595 Hardyal Hardy and S.K. Sabbarwal for Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by the State is directed against a judgment of the Punjab and Haryana High Court setting aside the conviction of the respondent herein in respect of offences under ss.5(2) read with s.5(1)(d) of the Prevention of Corruption Act, 1947 and 161, Penal Code on the sole ground that the sanction for his prosecution had not been accorded by a competent authority.
N.C. Tandon, respondent Was a civilian in the defence service in the rank of temporary Superintendent Building and Roads, Grade I.
It was alleged that he had accepted illegal gratification of Rs. 300/ from one Brij Bhushan Lal, Con tractor on 11 3 1971 as a motive or reward for doing an official act.
The Contractor was at the material time doing the construction of main sewers in Chandigarh Cantonment near Panchkula.
The respondent 's duty was to supervise that construction.
The respondent, it is alleged, demanded the bribe as a reward for recording correct measurements.
Brij Bhushan Lal did not, in fact, want to pay the gratifi cation.
He therefore informed the Special Police Establish ment authorities who on 10 11 1971 trapped the accused and allegedly recovered the tainted money from his possession.
The sanction for the prosecution of the accused was accorded by Brig.
Naresh Prasad, Chief Engineer, North Western Zone, Chandigarh on 24 6 1971.
The Special Judge, Ambala tried and convicted the accused on the aforesaid charges and sentenced him to one year 's rigorous imprison ment and a fine of Rs. 1,000/ .
Tandon appealed to the High Court.
The appeal was heard by a learned Single Judge who held that on 24 6 1971, when Brig.
Naresh Prasad Chief Engineer, North Western Zone passed the order of sanction for prosecution, he had under the relevant Rules, no plenary or delegated power to appoint to a post in Class III Service and that such a power was delegated to Chief Engineers of Zones for the first time on 14 1 1972.
The learned Judge noted that the authority competent to appoint the accused respondent on 24 6 71, was the Chief Engineer Western Command, Simla, and not the Zonal Chief Engineer.
He therefore concluded that the sanction for prosecution of the accused had not been given by the compe tent authority.
On this short ground, the High Court al lowed Tandon 's appeal, without going into the merits of the case.
At the outset, we may notice the general principles which govern the sanction for prosecution in such cases.
Sub section(1) of section 6 of the Prevention of Corruption Act says: "No court shall take cognizance of an offence punishable under section 161 (or sec.
164) or section 165 of the Indian Penal Code, or under sub section (2) (or sub section (3A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction of the authorities enumerat ed in clauses (a) (b) and (c) of that section.
" 596 Sub section (2) of the section provides: "Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section (1) should be given by the Central or State Government or any other authority, such sanction ' shall be given by that Government or authority "which would have been competent to remove the public servant from his office at the time when the Offence was alleged.to have been committed." (emphasis added) Thus the test as indicated in this sub section, for judging the competency of the authority giving the sanction is, whether at the time of the alleged commission of the offence, it had the power to remove the public servant from his office.
Another principle to be borne in mind is, that unless a different intention appears, the power to appoint to an office includes the power to dismiss or remove from that office (vide section 16, General Clauses Act).
We may further clear the ground and have a short, swift look at the relevant statutory rules.
It is common ground that the post of Superintendent, Grade I (B & R) which the accused was temporarily holding, is a post of Class Iii Services, and the members of this Service are governed by Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, hereinafter called 1965 Rules).
The 1965 Rules were promulgated on November 20, 1965.
Rule 34 of the 1965 Rules repealed the earlier Rules of 1952 and any notification or orders issued thereunder "in so far as they are inconsistent with (the 1965 Rules)".
One of the provisions of the 1952 Rules, which is relevant for our purpose, and which has substantially been repro duced in the 1965 Rules, is Rule 10.
It reads as under: "10.
All first appointments to Class I and Class II Services shall be made by the Govern ment.
All first appointments to Class III and Class IV services shall be made by the author ities specified in column 3 of Schedule IV in respect of posts mentioned against them or by officers empowered in this behalf by such authorities." (emphasis added).
schedule IV reffered to in the rule ran as follows: "Schedule IV (Vide Rules, 10, 11, 12, 14 and 19).
Posts Appointing Auth Authority em No. orities in respect powered to im of Class III and pose penalties Class IV posts (i),(ii),(iv) (vide rule 10) and (v) of rule 13 for Class II officers (Vide r. 14) 1 to 7 . .
Posts in lower for E in C C. Es.
of the mation under E in C 's Commands.
Branch X X X." 597 The former Rule 10 as recast into Rule 9 of the 1965 Rules reads as below: "9(1) All appointments to Central Civil Services (other than General Civil Service) Class II, Class.
III and Class IV shall be made by the authorities specified in this behalf in the Schedule.
Provided that in respect of Class III and Class IV Civilian Services, or civil ian posts in the Defence Services appointments may be made by officers powered in this behalf by the aforesaid authorities.
(emphasis added) (2) All appointments to the Central Civil Posts,Class II, Class III and Class IV includ ed in the General Central Civil Service shall be made by the authorities specified in this behalf by a general or special order made, by the authorities specified in this behalf in the Schedule.
" It may be noted that both under the old Rule 10 and the Proviso to new Rule 9(1), the appointing authority is compe tent to delegate the power of appointment in respect of Class III Service.
Rule 13 enumerated these penalties which could be im posed upon the servants subject to the Rules: (i) Censure.
(ii) Withholding of increments or promotion.
(iii) Reduction to a lower post or time scale or to a lower stage in a time scale.
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders (v) Suspension.
(vi) Removal from the civil service of the Government, which does not disqualify from future employment.
(Vii) Dismissal from the civil service of the Government which ordinarily disqualifies from future employment.
(viii) Compulsory retirement . " Rule 14 of 1952 Rules specified who could impose these penalties.
It provided : "14(1) Any of the penalties specified in rule 13 may be imposed on any person subject to these rules by the Government or by the appointing authority.
598 (2) Without prejudice to the provisions of sub rule (1), any of the penalties specified in clauses (i), (ii), (iv) or (v) of rule 13 may be imposed.
(a) . . (b) in the case of members of Class III and IV services by the authority empowered in this behalf by the appointing authority.
Explanation.
In this rule the expression "appointing authority" includes an officer empowered under Rule 10 to make first appoint ments to Class III and Class IV Services.
" Rules 11 and 12 of the 1965 Rules correspond to Rules 13 and 14 of 1952 in all material aspects, excepting two, namely, (1) Suspension has been taken out of the category of penalties, and (2) the Explanation appended to Rule 14 has been omitted because in the 1965 Rules, the subject matter of that Explanation has been made a part of the definition of "Appointing Authority" given in Rule 2(a).
The main submission of Mr. Sachthey learned Counsel for the appellant is that by an order communicated per letter, dated 27 4 1956, made under Rule 10 of the 1956 Rules, (.subsequently reiterated in letter dated 23 1 1963) the Engineer in Chief had empowered all Chief Engineers in Military Engineering Service to make first appointments, inter alia, to posts in Class III Service, and that the operation of the aforesaid order was preserved and contin ued by the saving clause in Rule 34(1) of the 1965 Rules.
On these premises, it is maintained, that the High Court was wrong in holding that the Chief Engineer of the North Western Zone, Chandigarh.
was not the 'appointing authority competent to remove the accused from service.
As against this, Mr. Hardyal Hardy, learned Counsel for the respondent submits that the order, dated 27 4 56, ex pressly delegates the power of making first appointments.
only to the Chief Engineers of the three Commands, then in existence, and to the other authorities specified therein.
It is pointed out that in 1956 when this order was made, there were no Zonal Chief Engineers which came into exist ence on reorganization in December 1962, as a class apart, working under the orerail administrative control of the Chief Engineers of Commands.
The point pressed into argu ments is that a general delegation of the power in favour of Chief Engineers of Commands, as a class, cannot, by any reckoning, amount to a delegation in favour of the Zonal Chief Engineers, also, working under the control of the Chief Engineers of Commands.
Mr. Hardy has further submitted that the letter dated 23 1 1963 has not been issued under the signature of the Engineer in Chief, nor can it, by any stretch of language, be construed as a delegation of the power of appointment under Rule 10.
In the alternative, it is submitted the power delegated by the Engineer in Chief to the Chief Engineers was a qualified one inasmuch as no power was given to them to dismiss 599 or remove a Government servant of Class III Service.
It is maintained that by the aforesaid letter, the Chief Engineers were empowered to impose only minor penalties other than that of dismissal and removal.
It is urged, in view of this restricted delegation in the matter of inflicting.
penalties, it cannot be said that on the principle underly ing Sec.
16 of the General Clauses Act power of appointment will automatically include the power to remove the person appointed from his office.
In reply, Mr. Sachthey has pointed out that the fetter placed on the power given to the Chief Engineers by the letter dated 27 4 56, in the matter of removal or dismissal of Class III servants, operates only in case of persons appointed by the Engineer in Chief, and not where he was appointed by the Chief Engineer of a Command.
It is pointed out that in the instant case, the accused was appointed not by E in C but by the Chief Engineer, Western Command, Simla.
The main question that falls to be considered is whether the E in C 's order communicated through letter, dated 27 4 1956, can be construed as a valid delegation of the power of appointment tO posts in Class III Service to Zonal Chief Engineers, which came into existence on re organization in December, 1962 ? The material part of this letter reads as under: "TO The Chief Engineer, Southern Command, Poona Eastern Command, Lucknow Western Command, Simla X X X Subject: Civilians in DefenCe Services (Classification, Control and Appeal Rules, 1962).
With reference to Rule 10 of the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1962, I hereby authorise the authorities mentioned hereunder to make first appointments to Class III and IV Services to the extent indicated below: Authority Posts (a) Chief Engineers . .
All posts with the excepetion of per (b) CWO, NDES . .
manent appointments to the following categories: (i) Superintendent, B/R Grade I. * * * 2.
Under Rule 14(b) of CDS (CC&A) Rules, 1952 the under mentioned authorities are empowered to impose penalties referred to in Rule 13 ibid, to the extent indicated below : (a) Chief Engineers and Penalties at (i), (ii), (iv) and (v) of Rule 13 on Class III employees in respect of whom E in C is the appoint ing authority," 600 A perusal of this letter will show that it is (among others) addressed to the Chief Engineers, Southern Command, Eastern Command, Lucknow, and Western Command, Simla.
On the date of this letter there were only three Commands; two commands were created subsequently.
There were no Zones or Zonal Chief Engineers at that time.
Therefore, the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands, as a class.
Since the delegation has been to the Chief Engi neers of the Commands, as a class, it will cover the Chief Engineers of these Commands, also, which were subsequently created.
But, the question is will it take in Chief Engi neer of Zones and amount to a delegation of power in their favour, too, on their creation six years later in 1962 ? Answer to this question will depend on whether the Chief Engineers of Zones belong to the same class holding the same rank and exercising same administrative powers and control as the Chief Engineers of Commands ? At the final hearing, we had asked Shri Sachthey, to make available to us the official order, regulations and like material throwing light on this aspect of the problem From the material furnished by him, it appears that the decision to reorganize the Military Engineering Service was taken by the Government in December, 1962.
Pursuant to that deci sion, the Zones were created and Engineering Services in each Zone were placed under the charge of a Chief Engineer, of that Zone.
Chandigarh area was also made North Western Zone, for this purpose.
This reorganisation took effect from January 1, 1963.
The main object of creation of Zonal Chief Engineers as stated in C in C 's letter No. 66161/II/E2A, dated 13 12 1962, was to "effect maximum possible decentralisation and thereby achieve speed and efficiency in the planning and execution of work services.
" As is apparent from the letter dated 22/26 12 1962 from the Engineer in Chief, the Zonal Chief Engineers have to work "under the command and technical control of CEs Com mands for the planning and execution of works.
" E in C 's letter, No. 6161/II/E2A, dated December 13, 1962 addressed to the Chief Engineers, Commands and others, also, makes it clear that under the re organized set up, "C.E. located at each Command H.Q. will be responsible for all engineer matters in the Command, administration and training of engineer troops and for the coordination of works.
Under the Command and technical control of this Chief Engineer there will be number of CEs/CSWE. on zonal basis.
" These two letters unmistakably show that the zonal Chief Engineers are a class apart from the Chief Engineers of Com mands.
Although extensive financial powers have been dele gated to the Zonal Chief Engineers, which are almost the same as that of the Chief Engineers of the Commands, the fact remains that they are under the overall administrative control of the Chief Engineer of the Commands concerned.
601 In this view of the matter the scope of the delegation of the powers made under the letter dated 27 4 1956, must be construed as a delegation only to the Chief Engineers of Commands, as distinguished from the Chief Engineers of Zones which were then not even in embryo.
This takes us to the letter dated January 23, 1963 from the Army H.Qrs., E in C 's Branch.
In the first place, this letter is not signed by the E in C.
It appears to have been signed by some other person "for E in Chief"; secondly it does not purport to have been issued pursuant to any sepa rately passed order of the E in C expressly delegating under Rule 10, the powers of appointment to posts in Class III Service.
The opening sentence of this letter, no doubt, refers to HQ Letters No. 66161/II E2A, dated 8 Dec. 1962, para 4 and even No. of 22 Dec. 1962, which we have already noticed.
There is nothing in them which delegates the powers of appointment to any posts to the Zonal Chief Engi neers.
On the contrary, para 8 of this letter says "All Class III and IV personnel will be provided by the Command CE and will continue to be borne on the strength of that Command for purposes of (a) All documentation (b) Temporary promotion (c) Permanency (d) Retrenchment and reversion (e) Pension progress by the Unit but overall control by the Command CE." (Emphasis added) Mr. Sachthey has placed great stress on para 12 of this letter which says: "The normal powers of Chief Engineer in all matters relating to appointments, punish ments etc.
vest with each Zonal Chief Engi neer in accordance with this HQ letter No. 27304/ELD(2) dated 27th April 1956.
In exer cising these powers it will be necessary to consult CE Command prior to recruitment and replacements.
" The argument advanced on behalf of the appellant is that the very authority that had issued the letter dated April 27, 1956 has construed it as delegating the powers of ap pointment, punishment etc.
to the Zonal CEs.
also, and therefore, the Court should accept that interpretation.
We are unable to accept this argument.
We have already pointed out that this letter, dated 23 1 63, has not been issued under the signature of the same authority from which the order, dated 27 4 56, had emanated.
It does not ex facie show that any order, apart from that dated 27 4 56, had been passed by the Engineer in Chief under Rule 10.
For reasons given earlier, we have no hesitation in holding that the assumption made in Paragraph 12 of this letter ex tracted above, to the effect that the Zonal Chief Engineers were vested with powers of appointments, punishments etc.
in accordance with H.Q. letter dated 27 April 1956 was clearly incorrect, Perhaps, that was why on 14 1 1972, the necessity of making a proper order delegating such powers to Zonal Chief Engineers and others, under Rule 9 was felt by the Engineer in Chief.
602 No other order of the Engineer in Chief made prior to 24 6 1971 under Rule 10 of 1952 Rules or under Rule 9(1) of the 1965 Rules delegating the power of appointment to posts in Class III Services, has been placed before us.
We have therefore no alternative but to hold that on 24 6 1971, Brig.
Naresh Prasad, Zonal Chief Engineer, North Western Zone, Chandigarh, was not competent to remove the accused respondent, Tandon, from the post of Superintendent, B&R Grade I, Chandigarh and as such, the order sanctioning the prosecution of the respondent was bad in law.
In view of this finding, we do not think it necessary to examine the alternative contention advanced by Shri Hardy.
The case fails because there is no valid sanction, as re quired by the law.
Obviously, this does not preclude a fresh prosecution for the same offence but it is a matter for the State, in the circumstances of the case, to consider whether prosecution should be launched against the respond ent or not.
We make this observation only to remove a possible misapprehension.
In the result, the appeal fails and is dismissed.
P.H.P. Appeal dismissed.
| The appellant, though charged with offences sections 323 and 302 I.P.C., was convicted only section 323 and sentenced to suffer 6 months ' rigorous imprisonment.
The appeal preferred by the State against acquittal section 302, I.P.C. was accepted by the High Court and the appellant was convicted under that charge and sentenced to life imprisonment.
As required under Rule 6, Order XXI of the Supreme Court Rules, the appellant surrendered before the trial court and preferred special leave which was granted on 28 2 1974; but the application for bail, preferred subsequently, was rejected on 10 1 1975.
Since the appeal did not come up for hearing for a long time, the appellant preferred another application for bail.
Allowing the application, the Court, HELD : No practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice.
Every practice of the court must find its ultimate justification in the interest of justice.
The practice not to release on bail a person who has been sentenced to life imprisonment was evolved on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose so long as his conviction and sentence are not set aside; but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period.
The rationale of this practice can have no application where the court is not in a position to dispose of the appeal for five or six years.
It would, indeed, be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him.
So long as this court is not in a position to hear the appeal of an accused within a reasonable period of time, the court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.
In the instant case, the very fact that this court has granted to the appellant special leave to appeal against his conviction shows that, in the opinion of this court, he has, prima facie, a good case to consider and in the circum stances, namely, that he has been in jail and the total period he has spent in jail so far is about 4 1/2 years, it would be highly unjust to detain him in jail any longer during the hearing of the appeal and he should be released on bail.
[386 D G, 387 A D]
|
l Appeals Nos. 1752 to 1769 of 1970 From the Judgment and Order dated the 24th April, 1970 of the Mardas High Court in Writ Petitions Nos. 239, 346, 999, 1000, 1007, 1030, 1071, 1101, 1102, 1223, 1242, 1270, 1271, 1724, 1725, 1748, 2640 and 3252 of 1969.
Y. section Chitle, V. M. Ganpule, K. R. Choudhury and K. Rajendra Choudhury, for the appellants.
L. N. Sinha, Solicitor General of India, section P. Nayar, and M. N. Shroff, for the respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The core of the contention urged by the appellants in these various appeals filed by certificate under article 133(1)(a) & (c) of the Constitution is that the excise duty on matches sought to be levied on these medium sized manufacturers of Shivakashi wears the mask of equality but in its true face bears the marks of unequal justice violative of article 14 of the Constitution of India.
Shri Chitale, learned counsel for the appellants, has focused his arguments on one grievance only and, we think, with good reason that the discriminatory fiscal treatment of his clients is unconstitutional, the vice being treatment of dissimilar categories similarly.
To compress his whole argument in a single sentence, it is that the appellants, small manufacturers of matches, have been subjected by the impugned notification to excise duty at the same onerus rate as has been applied to larger producers, wilfully indifferent to a historically well recognised classification between the smaller and the larger group of, match manufacturers, and the injury sustained flows from this failure to classify and deal differentially with sets of producers who are unequal in their economic capabilities in the matter of production and marketing a sort of traumatic egality.
In brief, equal treatment of unequal groups may spell invisible yet substantial discrimination with consequences of unconstitutionality.
That dissimilar things Should not be treated similarly in the name of equal justice is of Aristotelian vintage and has been, by implication, enshrined in our Constitution.
The facts which unfold the case of the appellants may now be set out.
The match industry in India has grown over the decades and Shivakashi occupies an important place in the production geography of matches.
From the point of view of manufacturing techniques, the safety match industry in our country comprises two distinct categories the mechanised sector occupied by a few big whales and the non 123 mechanised sector comprising varying sizes of production units ranging from the small fry organised on a cottage industry basis to considerable producers who have developed manufacturing and marketing muscles sufficient to compete with the power using big four the WIMCO, the AMCO, the ESAVI, and the Pioneer.
The Tariff commission, Report on this industry has stated "Unlike units in the mechanised sector which have powerdriven equipment for carrying out all the important operations including manufacture of splints and veneers, frame filling dipping, box making, etc.
, those in categories 'B ' and 'C ' follow almost identical manufacturing process, obtaining their splints and veneers from outside suppliers and getting such important.
operations as box making and frame filling done by outside domestic labour on piece rate basis.
Only such of the processes, as dipping, box filling, banderolling and packing which under Excise or Explosive Act regulations cannot be entrusted to outside labour are carried out in the factory sheds of the units and the workers employed for these also are mostly paid on piece rate basis.
All the operations, whether, undertaken in the factory premises or passed on to outside piece work labour to be carried out in the homes of the latter conjointly with other members of the family, are done by manual process.
The same system is followed by 'D ' category units as well, except those sponsored by K. & V. 1.
C. some of which manufacture their own splints and veneers," Classified on the basis of quantity turn out and other germane factors, a fourfold categorisation into 'A ', 'B ', 'C ' and 'D ' was extent in the industry roughly corresponding to the techniques of production and the use of power adopted by each.
The Tariff Commission explained this aspect and reported on the operation of the differential excise levy system on production and trade practices.
Counsel for the appellants has rested his case of discrimination by subversive equality or rather non discrimination where a deserving differentiation is the desideratum, on the findings of the Tariff Commission report.
We might as well give copious but relevant excerpts from it to discern the foundation.
of the argument.
The Report runs on to state "As indicated in Appendix 11, according to the excise tariff classification units in the match industry now stand grouped into four classes, namely 'X, 'B ', 'C 'and 'D ' not on any tech nological differentiation but on the basis of output 'A ' class comprising factories whose annual output exceeds 4,000 million match sticks, 'B ' class comprising factories whose annual output exceeds 500 million match sticks but does not exceed 4,000 million match sticks, 'C ' class comprising factories whose annual output exceeds 50 million match sticks but does not exceed 500 million match sticks and 'D ' class comprising factories whose arm, all output does not exceed 50 million match sticks.
According to this classification the factories belonging to WIMCO, AMCO and ESAVI fall under category 'A, the rest comprising the units 124 in the non mechanised sector fall under the other three categories, namely 'B ', 'C ', and 'D ', . . . . . . "selling system (iv) Small producers.
The system of selling adopted by these manufacturers varied according to their status and financial resources.
The system almost universally followed by such producers is to make outright sales, without any discount or commission to wholesalers, both out station and local.
The bigger, among such producers belonging to category 'B ' are reported in some case s to sell as well through dealers and sole selling agents.
Many of them have also got their own depots and regular stockists in a limited number of out station centres.
As regards 'C ' and 'B ' class producers, the system of sales covert the following variants according to facilities available to them : (i) outright ,sales to wholesale merchants, local or out station; (ii) sales through joints schemes of depots which stock different brands from several producers; (iii) sales by sending goods in their own vans in bulk to distributors and dealers in nearby states; and (iv) .sales through their own salesman who deliver goods in local markets on the shopkeepers on bicycles (a special feature of 'D ' class units).
From the replies received by us from units in the small scale sector it would appear that those in category 'B ' situated in the Shivakasi/Sattur/Kovilpatti area have over some years in the past established contacts and developed a fairly wide selling system enabling them to cater to the markets in distant States including West Benga l, U.P., Delhi, Gujarat and practically all the States in the South.
The size of their operations has all along ,enabled them to undertake supply in wagon loads at the concessional rates, which is an important consideration for developing distant markets to be served by rail transport." "Although they are not comparable to WIMCO in having a country wide distributive Organisation, these units evinced till recently all the symptoms of a steady and healthy development, some of them having reached the maximum limit (4,000 million sticks) of Category 'D ' with a reputation for their brands in far off markets.
They had the resources to support this progressive development and a few of them have represented that with an improvement of the climate of the trade which has been completely vitiated by the slab system of excise duties (see para graph 11) and given necessary facilities they would be able to reestablish the markets they had assiduously built up and even initiate a scheme of gradual mechanisation of important processes in their factories for the betterment of the quality of their products.
In the present context, it is worth taking note of the fact that the credit for an expanding market for matches produced in the non mechanised sector is attributable largely to the sales endeavours of factories which had grown to be 'B 'class units that had necessary resources for the purpose and were able the maintain quality.
" * * * * 125 "In contrast to the 'B ' class units, the selling system of those in category 'C ' betokens a position of serious weakness.
Except the C ' class units which have been brought into existence by fragmentation of bigger units and still operate under the protecting wing of the sponsor (see paragraph 11), the new comers in this class who have no tradition, functions mostly with meagre financial resources and have no comparable advantage.
Unable to sell their output in wagon loads they are compelled to dispose of it to local financing cum trading agencies at rock bottom prices dictated by the latter for what has now come to be called consignments of "assorted labels".
This, in effect, involves a complete surrender by the 'C ' class producers to the benefit of differential excise rebate allowed to them to the detriment of others as well.
The low purchase prices of the goods enable such agencies to send consignments of mixed brands to distant places in wagon loads and find a market by of fering to the wholesalers there extremely competitive rates vis a vis the usual rates charged by 'B 'class units, the retail selling prices being the same for both.
Our examination of the problem of the small scale units in category 'C ' indicates that basically their problem is not different from other small industries suffering similar exploitation by middlemen.
As in other cases they can best be extricated from the grip of the middlemen by the establishment of suitable sales co operatives.
We draw the attention of the State Governments to this problem for initiating necessary measures for the purpose, particularly of the Government of Madras, as the concentration of such units is in that State where the problem presents itself in the most acute form, but offers favourable prospects for the establishment of several full fledged sales cooperatives with adequate membership." * * * * "There is sufficient evidence to indicate that the effects have been quite widespread and recourse has been taken to fragmentation on a fairly extensive scale." * * * * The Sivakasi Chamber has stated as follows "In the face of such unhealthy competition from 'C ' factories and the disadvantages over 'A ', the 'B ' is unable to market its production resulting in heavy accumulation of stocks.
It is now felt by 'B ' class factories that there is no other salvation for them except to convert 'B ' into 'C ' class factories in benami names, as few have since done.
It may be pointed out that 16 long established 'B ' factories have reduced themselves to 'C ' class with effect from 1st April, 1963 in this Division alone in addition to the numerous factories who have already converted from 'B 'to 'C '."As regards similar fragmentation of the larger units in category 'C ' almost identical views have been expressed by the Tirunelevely Match Association, representing 150 'C ' class match factories,in the following words : "In view of the vast difference of excise duty between.
1st and 3rd slab of excise duty in 'C '.Class there is a tendency and practice among the manufacturers to work in the first slab only and to stop therewith.
In this way starting of small new units with the motive to enjoy rebate in the first slab 126 of excise duty has become common and this has clearly resulted in loss of revenue, as well as working of units in less than the permitted Capacity.
It has been brought to our.
notice that the situation has deteriorated to such an extent as a result of the slab system that some erstwhile 'B ' units have suspended their manufacturing activities altogether and instead found it more profitable to patronise a number of newly established 'C ' class units.
Their taking over the products of the latter in their new role as a trading cum financing agency has been facilitated by their established market connections and resourcefulness.
Instances of 'B ' category units owned by individual proprietors downgrading themselves into category 'C ' and having a number of 'C ' class units set up in the name of near relations have also been noticed by us in the course of our visits to factories in the Sivakasi/Sattur/ Kovilpatti area.
The allegations about extensive fragmentation were not denied by anybody at the public inquiry.
" * * * * * "The volume of evidence, both direct and indirect, that we have received in this connection fully testifies to the fact that 'large scale fragmentation of 'B ' and 'C ' class units has taken place directly as a result of the slab system all motivated by the attraction offered by the large duty differential of 65 np for the lowest slab rate under category 'C" '.
* * * * * "From the evidence received by us "B" and "C" class units 'have to offer their match boxes generally at a discount of Rs. 2 to Rs. 3 per bundle of 5 gross boxes, i.e. at about 40 to 60 nP. per gross less than the price charged by WIMCO.
While the quality of matches produced by 'B ' class manufacturers has the reputation of being generally good and comparable to WIMCO 's matches, the 'C ' class units do not have such reputation in the market.
The 'C ' class manufacturers are handicapped by a further disadvantage on account of the lower scale of their produc tion, inasmuch as they cannot usually offer a wagon load of matches at a time for despatch to the upcountry markets for sale and have generally to bear the central sales tax.
After carefully considering all aspects of the case including estimates of costs of the manufacturers, we are of opinion that a differential of 20 nP. in the rates of excise duty per gross of match boxes between 'A ' and 'B ' class units and a differential of 30 nP. between 'B ' and 'C ' class manufacturers would be quite adequate to safeguard their respective interests.
On similar considerations a differential of 35 nP. between 'C ' and 'D ' class units would also be justified.
For reasons stated in paragraph 11 and as stressed therein, we are definitely against continuance of the slabs introduced in classes 'A ' 'B ' and 'C ' carrying dif ferential rates of excise duty, which have entailed serious repressions on the entire industry.
We, therefore, recommend the following scales of excise duty to be levied for the four classes respectively : 'For 'A ' class. . .
Rs 4.60 per gross boxes 'For 'B ' class. . .
Rs.4.40 per gross boxes For 'C ' class. . . .Rs.4.10 per gross boxes 'For 'D ' class. . .
Rs.3.75 per gross boxes 127 The Tariff Commission recommended the abolition of sub classification for the purposes of excise duty and suggested separate scales of excise duty to be levied for the four classes of units, namely, 'A ', 'B ' ' C ' and 'D '.
Based on these recommendations, the slab system of excise duty was abandoned by Government and the category wise rate was adopted.
The impact on production of the differential duty scheme was a process of splintering of the 'B ' group to inhale the advantages offered to the 'C ' group resulting in a reduction in total production, thanks to the thinning tendency in the 'B ' group.
Indeed, the fiscal misdirection, by showing concessional rates to the 'C ' category as against 'B ' category, generated pseudo 'C ' category producers from out of the erstwhile 'B ' category so that the bona fide small scale manufacturers falling in the C ' category were flooded out.
Moreover, the genuine C ' category manufacturers were exploited by the middlemen who snapped up the margin of tax concession for themselves, defeating the object of concessional duty for the small producer.
This dilemma induced Government to revise its fiscal thinking and led to the impugned notification which withdrew the tax concession to the C ' category and equated it with the 'B ' category.
Section 3 of the Central Excise and salt Act, 1944 empowers the levy and collection of duties on goods produced or manufactured in the State, the rate being set forth in the First schedule to the Act.
Item 38 in the First Schedule relates to matches.
Section 37 contains the rulemaking power and section 37(1) confers power on the Central Government by rules to exempt any goods from the whole or any part of the duty imposed by the Act.
Under this power the Central Government issued a notification adopting a "classification" approach for extending concessional rates.
Originally, a broad classification was made as between matches manufactured by use of machinery and those by other means.
Among the second category a sub classification was made as 'B ', C ' and ID ' for the purposes of concessional rates.
In 1966, a uniform leavy of Rs. 4.15 per gross of match boxes was made doing away with 'B ' to ID ' classes.
In 1967 this position was revised by notification No. 162 of 1967, which is challenged before us.
It reads "In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1955, and in supersession of the Notification of the Government of India in the Ministry of Finance (Department of Rev enue and Insurance) No. 115/67 Central Excise, dated the 8th June, 1967, the Central Government hereby exempts matches specified in column (2) of the Table below, falling "under Item No. 38 of the First Schedule to the Central Excise and Salt Act, 1944 (1 of 1944) and cleared by any manufacturer for home consumption, from so much of the duty of excise leviable thereon as is in excess of the rate specified in the corresponding entry in column (3) of the said table: 128 TABLE Category Description of matches Rate (Rs per gross of boxes 50 mat ches each) 1.
Matches in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power . 4 .60 2.
Matches in or in relation to the manufacture of which no process is ordinarily carried on with the aid of power . 4 .30
Provided that (1) Matches referred to in category 2 and cleared for home consumption during the financial year from a factory from which the total clearance of matches during that year is not, as per declaration made by the manufacturer under this notification ' estimated to exceed 75 million matches, shall be allowed to be cleared at the rate of Rs. 3.75 per gross of boxes 5O matches each, upto 75 million matches and the quantity of matches, if any, cleared in excess, and upto 100 million matches shall be allowed to be cleared at the rate of Rs. 4.30 per gross of boxes of 50 matches each; and if the clearance in such factory exceeds 100 million matches during the financial year, the manufacturer shall be required to pay at the rate of Rs. 4 30 per gross of boxes of 50 matches each, on the entire quantity cleared during the financial year. . " The upshot of this system of duty is that 'B ' and 'C ' categories of old will now be treated equally and the grievance of the petitioners, who are 'C ' category manufacturers is that clubbing them together with the far stronger 'B ' type manufacturers is virtually condemning them to gradual extinction.
Treating unequals as equals and compelling both to bear equal burdens is to show the 'C ' type manufacturers the way out.
It is urged that the test of capacity of each group in the industry to bear the levy, recognised in the past and approved in the Tariff Commission Report, is given the go bye now.
The contention, in reply, by the State is that at present the classification of the manufacturers is based on the use of power which in turn has a rational relation to the techniques and processes of production and their ability to bear the burden of the levy.
It is further argued that the Government did give effect to the recommendations of the Tariff Commission regarding the four fold classification but, finding certain evils developing, the Central Excise Re organisation Committee went into the subject and suggested methods to re orient the scale and scope of excise duty.
This Committee 's report led to the current noti fication and the dichotomy between mechanised and non mechanised industry proceeds on a rational differentia which has a substantial relation to the legislative end.
There is no doubt that in the past among the non mechanised manufacturers of matches a further classification based on viability 129 had been made.
It is also true that the financial resources, the capacity to command a market on their own without depending on intermediaries, etc., marked off the 'B ' category from the 'C ' category.
But then experience gathered subsequently disclosed certain evils which the State took note of and endeavoured to set right.
Ulitmately the present notification was issued obliterating the distinction which gave a concessional edge to the 'C ' group over the 'B ' group.
The learned counsel for the appellants persuasively pleaded that this unsocialistic step has left the small producers like his clients in the cold and virtually compelled them to retire from the industry.
May be, there is force in this grievance.
Instead of protecting the tiny manufacturer from the injurious intermediary and inhibiting the larger pro ducer from resorting to the device of self division and other make believe tactics, the State has resorted to a policy of equal levy from both which, according to the counsel, hits the poor and helps the better off.
This is a criticism of legislative judgment, not a ground of judicial review.
We agree that bare equality of treatment regardless of the inequality of realities is neither justice nor homage to the constitutional principle.
Anatole France 's cynical statement comes to our mind in this context "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
" The forensic focus turns on unconstitutional non classification of the 'B ' and 'C ' categories and the vice of lugging all non mechanised 'Producers together into one mass.
The Court is being invited to compel the legislative and executive wings to classify, but we feel that from the judicial inspection tower the Court may only search for arbitrary and irrational classification and its obverse, namely, capricious uniformity of treatment where a crying dissimilarity exists in reality.
Right at the threshold we must warn ourselves of the limitations of judicial power in this jurisdiction.
Mr. Justice Stone of the Supreme Court of the United States has delineated these limitations in United States vs Butler(1) thus : "The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness.
One is that courts are concerned only with the power to enact statutes, not with their wisdom.
The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self restraint For the removal of unwise laws from the statute books appeal lies not to the courts but to the bellot and to the processes of democratic government.
" In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review.
In the present case unconstitu (1) ; Sup.
Ct.312=80 L. ed.477 (1936)=American Constitutional Law hird edn.
by Tresolini and Shapiro.
130 tionality is alleged as springing from.
lugging together two dissimilar categories of match manufacturers into one compartment for like treatment.
Certain principles which bear upon classification may be mentioned here.
It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects.
Every differentiation is not a discrimination.
But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevent and artificial ones.
The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured, has been repeatedly stated by the courts.
If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional.
To put it differently, the means must have nexus with the ends.
Even So, a. large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the court will be reluctant and perhaps ill equipped to investigate.
In this imperfect world perfection even in grouping is an ambition hardly ever accomplished.
In this contest, we have to remember the relationship between the legislative and judicial departments of government in the determination of the validity of classification.
Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal, At the same time, the question of classification is primarily for legislative judgment .and ordinarily does not become a judicial question.
A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads.
All these operational restraints on judicial power must weigh more emphatically where the subject is taxation.
One facet of the equal protection clause, upheld by the Indian Courts and relevant to the present case, is that while similar things must be treated similarly, dissimilar things should not be treated similarly.
There can be hostile discrimination while maintaining a facede of equality.
Procrustean cruelty cannot be equated with guarantee of constitutional equality, and we have to examine whether such is the lot of the appellants.
This Court has in several rulings highlighted this sensitive under side of equal protection.
Indeed, the complaint of the petitioners is that by abolition of the difference in fiscal burden between categories 'B ' and 'C ' an insidious subversion of equal treatment has been effected.
Another proposition which is equally settled is that merely because there is room for classification it does not follow that legislation without classification is always unconstitutional.
The court cannot strike down a law because it has not made the classification which commends to the court as proper.
Nor can the legislative power be said to have been unconstitutionally exercised because within the class a sub classification was reasonable but has not been made.
131 It is well established that the modern State, in exercising its sovereign power of taxation, has to deal with complex factors relating to the objects to be taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not.
In the famous words of Holmes, J., in Bain Peanut Co. vs Pinson(1) : "We must remember that the machinery of Government would not work if it were not allowed a little play in its joints." In the present case, a pertinent principle of differentiation, which is visibly linked to productive prowess, has been adopted in the broad classification of power users and manual manufacturers.
It is irrational to castigate this basis as unreal.
Indeed, the soundness of this distinction is not denied.
The challenge is founded on the failure to miniclassify between large and small sections of manual match manufacturers.
But ours is not to reason why, that being a policy decision of Government dependent on pragmatic wisdom playing on imponderable forces at work.
Our jurisdiction halts where the constitutional touchstone of a rational differentia having a just relation to the legislative and of revenue raising is satisfied.
Gratuitous judicial advice on the socialistic direction of fiscal policy is de trop.
We desist from that enterprise and leave the petitioners and men of his ilk to seek other democratic remedies in that behalf, it being beyond our area normally to demolish the tax structure because micro classification among a large group has not been done by the State.
Absolute justice to every producer is a self defeating adventure for any administration and genera I direction, not minute classification, is all that can be attempted.
For these reasons we find ourselves in agreement with the High Court in its refusal to strike down the notification under section 3 of the Central Excise and Salt Act, 1944.
Before concluding we may make a passing reference to the few decisions cited by appellants ' counsel.
In K. T. Moopil Nair vs State of Kerala(2), Sinha, C.J., emphasized that article 14 may be violated even though the law may, on the face, be equal if in substance unequal things are treated equally.
In State of Kerala vs Haji K. Haji Kutty Nahia(3), Shah J., observed : "There objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality.
A similar view has been taken in Khandige Sham Bhat vs The Agricultural Income Tax Officer (4).
it is sound law that refusal to make rational classification where grossly dissimilar subjects are treated by the law violates the mandate of article 14.
Even so, where the limited classification adopted in the present case is based upon a relevent differentia which has a nexus to the (1) ; ; 501.
(2) ; (3) C.As.
1052 etc.
of 1968; judgment dated August 13, 1968.
(4) ; ,817.
132 legislative and of taxation, the. court cannot strike down the law on the score that there is room for further classification.
Refusal to classify is one thing and it bears on constitutionality, not launching on micro classification to work out perfect justice is left to executive expediency and legislative judgment and not for forensic wisdom.
"The relationship between the legislative and judicial departments of government in the.
determination of the validity of classification is wellsettled. the authorities state with unanimity that the question of classification is primarily for the legislature and that it can never become a judicial question except for the purpose of determining, in any given situation, whether the legislative action is clearly unreasonable.
The legislative classification is subject to judicial revision only to the extent of seeing that it is founded on real distinctions the subjects classified, and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition." (American Jurisprudence 2d : vol. 16; para 496).
"In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things.
The constitutional command for a state to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula.
Classification in law as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars, and differ from other things in those particulars.
It is almost impossible in some matters to foresee and provide for every imaginable and exceptional case, and a legislature ought not to be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general classification, and thereby denies to any person the equal protection of the laws.
Hence, a large latitude is allowed to the states for classification upon any reasonable basis, and what is reasonable is a question of practical details into which fiction cannot enter." (ibid para 504).
We have said enough to delineate the finer frontiers of the jurisdiction of the court and the legislature.
Having sensitive regard to the obligation of the State to bring the law, including the tax law, into pulsing relationship with life, including the life of the country 's economy, we see nothing so grossly unfair as to attract the lethal power of the court to strike down the notification under challenge.
We dismiss the appeals but in the circumstances without costs to the respondents.
| The first part of section 81 (3) of the Representation of the People Act, 1951, provider that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and section 96 (1) provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81.
The appellant filed an election petition challenging the respondent 's election to the State Legislative Assembly, but did not file the requisite number of spare copies within the period of limitation.
The High Court dismissed the petition on the ground of non compliance with the mandatory requirement of section 81 (3).
Dismissing the appeal to this Court, HELD: (Per P. Jaganmohan Reddy and P. K.Goswami, JJ.) Whether a particular provision in a statute is mandatory or directory has to be construed from the scheme and object of the provisions.[25H] The right to challenge an election is conferred under the Representation of the people Act, which is made in conformity with the provisions of article 329 (b) of the Constitution.
It is a special right conferred under a self contained special law and the Court will have to seek answers to the questions raised within the four corners of the Act.
The power of the court are circumscribed by the provisions.
it is not a common law right and an election petition cannot be equated with a plaint in a civil suit.
Since the principal object of the Act is purity of elections, when an election is challenged under the Act, expeditious trial of the dispute is sought to be enforced by the Legislature making all safeguards against delay in getting rid of any taint in the result of the election.
But the very object of expeditious trial will be defeated if the presentation of the election petition should be treated casually and lightly, permitting all kinds of devices to delay the trial.
The purpose of enclosing the copies of the election petition for all the respondents is to enable quick dispatch of the notice with the contents of the allegations for service on the respondents.
if there is any halt or arrest in the progress of the case, the object of the Act will be completely.
frustrated.
Therefore, the first part of section 81 (3) is a peremptory provision and total non compliance with it will entail dismissal of the election petition under section 86.
[27H; 99E G] Jagat Kishore Prasad Narain Singh vs Rajindra Kumar Poddar and Others, [1971] 1 S.C.R. 821, Raza Buland Sugar Co. Ltd. V. Municipal Board Rampur , Montreal Street Railway Company vs Normandin, ; Charan Lal Sahu vs Nand Kishore Bhatt and Others, ; , Ch Subba Rao vs Member, Election Tribunal ; and Dr. Anup Singh vs Abdul Ghani ; , referred to.
Per Dwivedi J: The election petition is liable to be dismissed in view of the decision of this Court in Jagat Kishore Prasad Narain Singh vs Rajindra Kullar poddar and others, (19711 1 S.C.R. 821.
But this makes section 86 (1) a tyrannical master giving primacy to procedure over justice.
But it is for Parliament to make a just choice between the social interest in the Supply of copies for expeditious disposal and the social interest in the Purity of election by excluding section 81 (3) from the purview of section 96 (1).
|
Appeal No. 5434 of 1985.
From the Judgment and Order dated 11.8.1987 of the Punjab and Haryana High Court in Civil Revision No. 1048 of 1986, A.K Gupta for the Appellants.
Vikram Mahajan, Gopi Chand and K.K. Gupta for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
The suit premises in Chandigarh was let out by the appellant to the respondent, Smt.
Satya Bhalla on 1.11.1974 on a monthly rent of Rs. 550 solely for residential purpose.
However, the respondent 's husband, a lawyer established his office in a part of the suit premises and started using the same for that purpose.
The appellant landlord filed a petition before the Rent Controller in February, 1983 seeking eviction of the respondent tenant on several grounds including the ground contained in section 13(2) (ii) (b) of the East Punjab Urban Rent Restriction Act, 1949 i.e. the use of the building for a purpose other than that for which it was leased.
The Rent Controller made an order of eviction of the respondent tenant on the ground of change of user contained in section 13(2)(ii) (b).
The tenant 's appeal was dismissed by the appellate authority which affirmed the order of eviction made by the Rent Controller.
A further revision to the High Court has been allowed by the learned single Judge and the order of eviction has been set aside.
The High Court has held that the building let out as a 'residential building became a 'scheduled building by use of a part thereof as lawyer 's office by the tenant 's husband; and therefore, the ground of eviction was not available.
The order of eviction made in the landlord 's favour was, therefore, set aside.
Hence this appeal by the landlord by special leave.
The learned counsel for the appellant contended that the ground of change of user contained in section 13(2) (ii) (b) is clearly made out from the facts and the High Court has erred in setting aside the order of eviction.
174 In reply Shri V.C. Mahajan, learned counsel for the respondent tenant, advanced several arguments.
He submitted that the landlord had waived the ground of change of user by acquiescence to use of a part of the premises as lawyer 's office.
His next submission is that the ground in section 13(3) (ii) (b) is not available unless the change of user is of substantial if not the entire building and, therefore, mere use of a small part of the residential building as lawyer 's office does not constitute such change, learned counsel also submitted that this is not a fit case for interference with the High Court 's order under Article 136 of the Constitution.
Having heard both sides, we are satisfied that this appeal has to be allowed.
The High Court 's interference in revision with the order of eviction made by the Rent Controller and affirmed by the appellate authority, was wholly unjustified.
There is no merit in Shri Mahajan 's argument of waiver or acquiescence by the landlord.
Before the Rent Controller the tenant had pleaded estoppel against the landlord, which after due consideration was rightly rejected by the Rent Controller.
That finding of the Rent Controller was not assailed by the tenant either before the appellate authority or in the High Court.
On merits also, this plea is untenable since no such conduct of the landlord is shown.
The argument is, therefore, rejected.
We also do not find any substance in the contention that interference under Article 136 is not warranted, in case it is found that the High Court set aside the order of eviction on a misconstruction of the law applicable in the present case.
The only question, therefore, is whether on the proved facts, no longer in controversy, the ground in section 13(2) (ii) (b) is made out.
The material provisions in the East Punjab Urban Rent Restrictions Act, 1949 with reference to which the contention of Shri Mahajan has to be considered, are the following "2.
Definitions. . . . (a) 'building ' means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns, outhouses, or furniture let therewith but does not include a room in a hotel, hostel or 175 boarding house; xxx xxx xxx (d) 'non residential building" means a building being used solely for the purpose of business or trade: Provided that residence in a building only for the purpose of guarding it shall not be deemed to convert a "non residential ' building ' to a 'residential building": xxx xxx xxx (g) 'residential building" means any building which is not a non residential building; (h) 'scheduled building" means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this act, partly for his business and partly for his residence; xxx xxx xxx 13.
Eviction of tenant (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencemen t of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this sec tion.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (ii) that the tenant has after the commencement of this Act without the written consent of the landlord (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or 176 (b) used the building or rented land for a purpose other than that for which it was leased, or the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application: Provided that the Controller may give 'the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate." Shri Mahajan contended that to constitute the ground under section 13(2) (ii) (b), the change in user should be in respect of at least a substantial part of the building if not the entire building.
The comparison of sub clause (b) with sub clause (a) shows that the omission of the word 'entire ' before the word 'building ' in sub clause (b) when the word 'entire ' has been used before the word 'building ' in sub clause (a) is deliberate.
For this reason, the change in user of the building required to constitute the ground under sub clause (b) need not be of the entire building, the word 'entire ' being deliberately omitted in sub clause (b).
Faced with this difficulty, Shri Mahajan submitted that the change of user should be of a substantial part of the building let out even though not of the entire building.
This argument also cannot be accepted in this context.
The definitions in section 2 of the Act show that even though a 'scheduled building ' continues to be a residential building as defined in section 2(g), a residential building of which even a part is used for a scheduled purpose, becomes and is called a 'scheduled building ' when user of the building is significant or the criterion.
Thus, where user of a building is of significance, a distinction is made in the Act between residential building which is not a scheduled building and that which is a scheduled building.
This is so in section 4 of the Act dealing with determination of fair rent wherein fixation of rent is made on the basis of user and for that purpose a 'scheduled building ' is treated differently from a residential building which is not a scheduled building.
Same is the position with regard to the ground of eviction contained in section 13(2) (ii) (b) wherein change in user of the building is alone significant for constituting the ground.
177 Accordingly, use of the building for a purpose other than that for which it was leased, without the written consent of the landlord is a ground of eviction.
The object clearly is that the parties must remain bound by the terms on which the building is let out, including the condition relating to its use for the purpose for which it was leased.
In other words, breach of the covenant regarding the kind of user of the building let out is the ground of eviction contained in section 13(2) (ii) (b).
It is clear that if the change in user of the building is of the kind that it makes the residential building let out for residential purpose alone change its character and become a 'scheduled building ' as defined in section 2(h) of the Act without the written consent of the landlord, the ground of eviction under section 13(2) (ii) (b) is made out.
This test is fully satisfied in the present case and the order of eviction was made by the Rent Controller and affirmed by the appellate authority on this basis. 'The High Court misconstrued the provisions to take the contrary view.
A Division Bench of the Punjab and Haryana High Court in Telu Ram vs Om Parkash Garg while dealing with section 13(i) (ii) (b) at the Act mentioned one of its conclusion in para 21 as under '(b) that if the result of the use of even a small portion of a building is such that the category of the premises is changed from residential, non residential and scheduled, and it becomes a category different from the one for which the same had been let, the clause would be attracted;" This is how this provision appears to have been understood at least eversince than and the people in the State have arranged their affairs on that basis.
Apart from the fact that this view commends to us as the correct view, the desirability of continuing the settled view is also a reason in its favour.
Shri Mahajan referred to the decision of this Court in Sant Ram vs Rajinder Lal and Ors., 1978(2) RCR 601.
That case is distinguishable.
In that decision the purpose of the lease was not spelt out precisely while letting out a small premises to a cobbler for his business where he sometimes stayed overnight after the day 's work while he went to his home on 178 holidays.
It was on these facts that the tenant staying overnight in the shop on some working days was not found to constitute the ground of change of user under section 13(2) (ii) (b) of the Act.
That decision does not assist the respondent tenant in this case.
Reference was also made to Dr. Sewa Singh vs Smt.
Ravinder Kaur and another, [1971] '3 SCC 981.
That judgment did not consider this question as it was not raised.
The ground therein was that the High Court was not justified in taking the view in revision for the first time that the user of a part of the premises for a particular purpose was casual.
No doubt, the user of a part of the residential building for the profession of a medical practitioner was involved and the definition of 'scheduled building ' in section 2(h) of the Act was referred, but this point was neither raised nor considered.
The decision in Dr. Sewa Singh cannot be treated as an authority for the view that change of user of a part of a residential building let out for use solely as a residence, for a scheduled purpose without the written consent of the landlord does not constitute the ground for eviction under section 13(2) (ii) (b) or that the ground of eviction based on personal need of the landlord contained in section 13(3) (i) (a) is not available to the landlord for that reason.
If the logical inference from Dr. Sewa Singh appears to be that, then, with respect, we are unable to agree with the same.
As a result of the above discussion, this appeal is allowed and the impugned order passed by the High Court is set aside resulting in restoration of the order of eviction made by the Rent Controller and affirmed by the appellate authority.
The respondent will also pay cost to the appellant.
Counsel 's fee Rs. 3,000.
V.P.R. Appeal allowed.
| The appellant who was an Assistant Engineer in Public Works Department was transferred on deputation to the Bangalore City Corporation under the City Bangalore (Cadre and Recruitment) Regulation, 1971 which permitted 75% of vacancies in the cadre to be filed in by deputation from P.W.D.
In 1977, the Karnataka Municipal Corporation Rules were framed and the appellant was absorbed in the Corporation.
On being challenged in a Writ Petition the High Court struck down the Rules and set aside the absorption of the appellant in the Corporation.
The Government issued an ordinance removing the infirmity in the Rules.
It was replaced by the Karnataka Municipal Corporation Amendment Act, 1981.
In course of time the appellant was promoted as Executive Engineer, Superintending Engineer and Addl.
Chief Engineer.
Ile earlier Writ Petitioners approached the High Court by way of a Contempt Petition against the non implementation of its order.
Faced with this situation, the Government repatriated the appellant to his parent department,just a few months before his retirement.
The appellant approached the Administrative Tribunal, which dismissed his application as infructuous in view of the fact that the matter was pending before the High Court and in any case the appellant would get his pension either from the State Government or the Corporation.
Hence these appeals.
55 Allowing the appeals, this Court, HELD: Under the Karnataka Municipal Corporation Amendment Act, 1981 the basis on which the Karnataka Municipal Rules, 1977 were declared void was removed and appointments made or continued before the commencement of the Amendment Act were declared to be valid and were always be deemed to have been validly made for all purposes as if the said appointments had been made under the Principal Act as amended by the Act.
It is not in dispute that the State Legislature is competent to make the Act.
When the Act was made and it validated past acts done or proceedings taken, it was valid Act and removed the defects declared by the Court.
It must be deemed and shall always be deemed that the appointment of the appellant as Addl.
Chief Engineer is legal and valid.
Unfortunately, the Act was not brought to the notice of the High Court when the direction to repatriate the appellant was made by the High Court.
But the failure to bring to the notice of the court does not have the effect of nullifying the valid action legislatively taken.
Consequently the appellant must be deemed to have been retired from service as Addl.
Chief Engineer of the Corporation.
The appellant is entitled to all the consequential benefits, all pensionary benefits etc.
from the Corporation.
[58H; 59 A D] Shri Prithvi Cotton Mills Ltd. & Anr.
vs Broach Borough Municipality & Ors.
, ; Janapada Sabha, Chhindwara, etc.
vs Central Provinces Syndicate Ltd. & Anr., etc.
; , and Yadlapati Venkateswarlu vs State of Anadhra Pradesh & Anr., [19901 Suppl.
1 SCR 381, relied on.
|
Civil Appeal No. 1763 (NT) of 1974 From the Judgment and Order dated 2.2.1973 of the Andhra Pradesh High Court in Case Reference No. 67 of 1971.
Y. Ratnakar, Mrs, A.K. Verma and D.N. Misra for the Appellant.
S.C. Manchanda, Ms. A. Subhashini and B.B. Ahuja for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by Special leave arises from the decision of the High Court of Andhra Pradesh and it seeks answers to two questions: 1079 "(i) Whether, on the facts and in the circumstances of the case, the properties in respect of which registered sale deeds had not been executed, but consideration had been received, belonged to the assessee for the purpose of inclusion in his net wealth within the meaning of section 2(m) of the ? (ii) Whether, on the facts and in the circumstances of the case, the assessee 's right to receive the sum of Rs.25 lakhs O.S. from the State Government was an asset for the purposes of inclusion in his net wealth under the ?" The year involved in this case is the assessment year 1957 58 under the (hereinafter called the 'Act ').
It may be mentioned that the valuation date is the first valuation date after coming into operation of the Act which came into force on 1st April, 1957.
The assessee was the Nizam of Hyderabad, an individual.
There were several questions involved in the assessment with all of which the present appeal is not concerned.
So far as the first question indicated hereinbefore which was really question No. (ii) in the statement of case before the High Court, it may be mentioned that the Wealth tax Officer had included a total sum of Rs.4,90,775 representing the market value of certain immovable properties in respect of which, although the assessee had received full consideration money, he had not executed any registered sale deeds in favour of the vendees.
The Wealth tax Officer held that the assessee still owned those properties and consequently the value of the same was included in his net wealth.
On appeal the Appellate Assistant Commissioner sustained the order with certain deductions in value.
On further appeal the Tribunal held that the assessee had ceased to be the owner of the properties.
The Tribunal was of the opinion that the assessee having received the consideration money from the purchasers and the purchasers having been put into possession were protected in terms of section 53A of the Transfer of Property Act and the term 'owner ' not only included the legal ownership but also the beneficial ownership.
The first question arises in the context of that situation.
The High Court following the ratio of Commissioner of Income Tax, A.P., Hyderabad vs Nawab Mir Barkat Ali Khan, (infra) answered the question in favour of the revenue.
1080 The second question set out before, which was question No. (v) before the High Court, has to be understood in the context of the facts of this case.
The right of the assessee to get the amount in question i.e. Rs.25 lakhs a year, arose in the wake of accession of the Hyderabad State to the Union of India.
Several communications followed between the Military Governor of Hyderabad,.
Gen. Chaudhuri and the Nizam of Hyderabad as well as other officers.
It has to be borne in mind that the assessee was a paramount ruler owning certain private properties called Sarf e khas.
He surrendered his paramountcy and acceded to the Union of India.
His private properties were taken over by the Government and it was agreed by the Government that in lieu of his income from the said properties, he would be paid Rs.25 lakhs in Osmania currency annually.
The communication between Major General Chaudhuri, the Military Governor and the Nizam about this particular sum in contained in the letter dated 1st February, 1949.
It stated inter alia as follows: "After this merger H.E.H. will be paid annually a total sum of Rs. 1 crore distributed as follows: (a) Rs.50 lacs as a privy purse, (b) Rs.25 lacs in lieu of his previous income from the Sarf e khas, and (c) Rs.25 lacs and for the upkeep of Palaces etc.
" The letter which appears in the Paper Book of this appeal from Military Governor of Hyderabad, Major General Chaudhuri to the Nizam of Hyderabad, states, inter alia, that Nizam 's Sarf e khas estates should not continue as an entirely separate administration independent of the Diwani administrative structure.
The Sarf e khas, it was stated in that letter, should therefore be completely taken over by the Diwani, its revenue and expenditure being merged with the revenues and expenditure of the State.
Thereafter we have extracted the relevant portion of the letter which stipulated for the payment of Rs.25 lakhs.
The other parts of the agreement contained in that letter are not relevant for the present purpose.
The Wealth tax Officer treating the said sum as an annuity and secondly as an asset or property, capitalised the same to Rs.99,78,572 1081 and included that amount as an asset of the assessee.
The appellate Assistant Commissioner agreed with the view taken by the Wealth tax Officer.
The Tribunal, however, refused to call it as an annuity and characterised it as an annual payment for surrender of life interest.
The Tribunal therefore held that the capitalised value of such life interest be added to the net wealth and taxed.
The High Court in the judgment under appeal agreed with the view taken by the Tribunal that it was only an annual payment made in compensation for the property which had been taken over by the Government.
It was, therefore, a part of the wealth, according to the High Court.
The High Court was of the view that it was possible to commute the annual payment of Rs.25 lakhs.
The High Court found that there was neither any express preclusion nor any circumstances from which legitimately an inference could be drawn precluding commutation of the said amount into a lumpsum grant.
The High Court, therefore, was of the view that the Wealth tax Tribunal had rightly rejected the contention of the assessee.
The question was accordingly answered by the High Court in the affirmative and against the assessee and in favour of the revenue.
The first question involved in this case is whether the properties in respect of which registered sale deeds had not been executed, but full consideration had been received by the assessee, belonged to the assessee for the purposes of inclusion in his net wealth in terms of section 2(m) of the Act.
Under section 3 of the Act, the charge of wealth tax is on the net wealth of the assessee on the relevant valuation date.
Net wealth is defined under section 2(m) of the Act.
The relevant portion of section 2(m) is as follows: "(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date. ." The material expression with which we are concerned in this appeal is 'belonging to the assessee on the valuation date '.
Did the assets in the circumstances mentioned hereinbefore namely, the properties in respect of which registered sale deeds had not been 1082 executed but consideration for sale of which had been received and possession in respect of which had been handed over to the purchasers belonged to the assessee for the purpose of inclusion in his net wealth? Section 53A of the Transfer of Property Act gives the party in possession in those circumstances the right to retain possession.
Where a contract has been executed in terms mentioned hereinbefore and full consideration has been paid by the purchasers to the vendor and where the purchasers have been put in the possession by the vendor, the vendees have right to retain that possession and resist suit for specific performance.
The purchasers can also enforce suit for specific performance for execution of formal registered deed if the vendor was unwilling to do so.
But in the eye of law, the purchasers cannot and are not treated as legal owners of the property in question.
It is not necessary in our opinion, for the purpose of this case to be tied down with the controversy whether in India there is any concept of legal ownership apart from equitable ownership or not or whether under sections 9 and 10 of the Indian Income tax Act, 1922 and sections 22 to 24 of the Indian Income tax Act, 1961, where 'owner ' is spoken in respect of the house properties, the legal owner is meant and not the equitable or beneficial owner.
Salmond On Jurisprudence, Twelfth Edition, discusses the different ingredients of 'ownership ' from pages 246 to 264. 'Ownership ', according to Salmond, denotes the relation between a person and an object forming the subject matter of his ownership.
It consists of a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons.
Firstly, Salmond says, the owner will have a right to possess the thing which he owns.
He may not necessarily have possession.
Secondly, the owner normally has the right to use and enjoy the thing owned: the right to manage it, i.e., the right to decide how it shall be used; and the right to the income from it.
Thirdly, the owner has the right to consume, destroy or alienate the thing.
Fourthly, ownership has the characteristic of being indeterminate in duration.
The position of an owner differes from that of a non owner in possession in that the latter 's interest is subject to be determined at some future time.
Fifthly, ownership has a residuary character.
Salmond also notes the distinction between legal and equitable ownership.
Legal ownership is that which has its origin in the rules of the common law, while equitable ownership is that which proceeds from rules of equity different from the common law.
The courts of common law in England refused to recognize equitable ownership and denied the equitable owner as an owner at all.
All the rights embedded in the concept of ownership of Salmond 1083 cannot strictly be applied either to the purchasers or the assessee in the instant case.
In the instant appeal, however, we are concerned with the expression 'belonging to ' and not with the expression 'owner '.
This question had come up before this Court before a bench of five learned judges in Commissioner of Wealth tax, West Bengal, vs Bishwanath Chatterjee and others, At page 539 of the report, this Court referred to the definition of the expression 'belong ' in the Oxford English Dictionary "To be the property or rightful possession of".
So it is the property of a person, or that which is in his possession as of right, which is liable to wealth tax.
In other words, the liability to wealth tax arises because of the belonging of the asset, and not otherwise.
Mere possession, or joint possession unaccompanied by the right to be in possession, or ownership of property would therefore not bring the property within the definition of "net wealth" for it would not then be an asset "belonging" to the assessee.
The first limb of the definition indicated in the Oxford Dictionary may not be applicable to these properties in the instant appeal because these lands were not legally the properties of the vendees and the assessee was the lawful owner of these properties.
The vendees were, however, in rightful possession of the properties as against the vendor in view of the provisions of section 53A of the Transfer of Property Act, 1908.
The scheme of the Act has to be borne in mind.
It has also to be borne in mind that unlike the provisions of Income Tax Act, section 2(m) of the Act uses the expression 'belonging to ' and as such indicates something over which a person has dominion and lawful dominion should be the person assessable to wealth tax for this purpose.
In Commissioner of Wealth tax, A.P. vs Trustees of H.E.H. Nizam 's family (Remainder Wealth) Trust, 108 I.T.R. 555, the question as to what is the meaning of the expression 'belonging to ' was raised (page 594 of the report) but this Court did not decide whether the trust property belonged to the trustee and whether the trustee was liable under section 3 of the Act apart from or without reference to section 21 of the Act.
The case was disposed of in terms of sections 21 of the Act.
In Commissioner of Income tax, A.P. Hyderabad vs Nwab Mir Barkat Ali Khan, , it was held by the Andhra Pradesh High Court that when a vendor had agreed to sell his property as in the instant case and had received consideration thereof but had 1084 not executed a registered sale deed, his liability to pay tax on income from that property did not cease.
His position as 'owner ' of the property within the meaning of section 9 of the Indian Income tax Act, 1922 and section 22 of the Income tax Act, 1961 did not thereby change.
According to the said decision, the agreement to sell and the receipt of consideration by the assessee, the Nizam of Hyderabad did not create any beneficial ownership according to Indian law in the purchaser neither did it create any equitable ownership in him.
The ownership did not change until registered sale deed was executed by the vendor.
The term 'owner ' in section 9 of the 1922 Act or section 22 of the 1961 Act did not mean beneficial or equitable owner which concept was not recognised in India.
In the instant case as we have noticed the position is different.
We are not concerned with the expression 'owner '.
We are concerned whether the assets in the facts and circumstances of the case belonged to the assessee any more.
This Court had occasion to discuss section 9 of the Income tax Act, 1922 and the meaning of the expression 'owner ' in the case of R.B. Jodha Mal Kuthiala vs Commissioner of Income tax, Punjab, Jammu & Kashmir and Himachal Pradesh, There it was held that for the purpose of section 9 of the Indian Income tax Act, 1922, the owner must be the person who can exercise the rights of the owner, not on behalf of the owner but in his own right.
As assessee whose property remained vested in the Custodian of Evacuee Property was not the owner of the property.
This again as observed dealt with the expression of section 9 of the Indian Income tax Act, 1922.
At page 575 of the report certain observations were relied upon in order to stress the point that these observations were in consonance with the observations of the Gujarat High Court which we shall presently note.
We are, however, not concerned in this controversy at the present moment.
It has to be borne in mind that in interpreting the liability for wealth tax normally the equitable considerations are irrelevant.
But it is well to remember that in the scheme of the administration of justice, tax law like any other laws will have to be interpreted reasonably and whenever possible in consonance with equity and justice.
Therefore, specially in view of the fact that the expression used by the legislature has deliberately and significantly not used the expression 'assets owned by the assessee ' but assets 'belonging to the assessee ', in our opinion, is an aspect which has to be borne in mind.
The bench decision of the Calcutta High Court in Commissioner 1085 of Income tax, West Bengal II vs Ganga Properties Ltd., rested on the terms of section 9 of the Income tax Act, 1922 and the Court reiterated again that in Indian law beneficial ownership was unknown; there was but one owner, namely, the legal owner, both in respect of vendor and purchaser, and trustee and cestui que trust.
The income from house property refers to the legal owner and further that in case of a sale of immovable property a registered document was necessary.
But these propositions as noted hereinbefore rested on the use of the expression in section 9 of the Income tax Act, 1922.
It used the expression 'owner ' unlike 'belonging to '.
The Gujarat High Court in Commissioner of Wealth tax Gujarat I vs Kum Manna G. Sarabhai , held that a spes successionis is a bare and naked possibility such as the chance of a relation obtaining a legacy and that could not form the basis of assessment under section 26 of the Act.
At page 174 of the report, the Gujarat High Court referred to the expression 'belonging to ' and referred to the fact that the expression has been the subject matter in a number of judicial decisions.
The Court observed that the words 'property ' and 'belonging to ' were not technical words.
The Gujarat High Court had occasion to deal with part performance in the case of an agreement of sale in Commissioner of Income tax, Gujarat vs Ashaland Corporation, The Gujarat High Court noted that in case of a person who was a dealer in land, the business transaction would be completed only when the purchase or sale transaction was complete.
In order to decide whether the business transaction was complete, the question of vital importance was whether title in the property had passed.
It was only on the passing of the title that the transaction became complete and unless the transaction was complete, any advance receipt of money towards the transaction would not form part of income or profit.
It was observed by the Gujarat High Court that the doctrine of part performance embodied in section 53A of the , had only a limited application and it afforded only a good defence to the person put in possession under an agreement in writing to protect his possession to the extent provided in section 53A, but an agreement in writing to sell, coupled with the parting of possession would not confer any legal title on the purchaser and take the land out of the stock in trade of the seller if the seller was a dealer in land.
The context in which the Gujarat High Court had to deal this question was entirely different.
The Gujarat High Court had to proceed on the basis that the assessee 1086 under the Income tax Act was the owner and he was dealing in land and therefore whether the land was stock in trade was the question.
In the instant appeal we are concerned with the expression 'belonging to '.
Therefore the observations of the Gujarat High Court would not be quite apposite to the problem of the instant appeal.
This question was again viewed by the Bombay High Court in a slightly different context in Commissioner of Income tax, Bombay City III vs Smt.
T.P. Sidhwa, The Bombay High Court was not concerned with the expression 'belonging to '.
Our attention was drawn to another decision of the Gujarat High Court in Commissioner of Wealth tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad, There the facts were more or less identical with the instant appeal on this aspect of the matter.
The assessee owned two properties and had agreed to sell one property to a company.
The vendees had paid Rs.30 lakhs in January, 1964 and were put in possession of the property.
Thereafter, four instalments of Rs. 17 1/2 lakhs each were paid and the property was conveyed by four deeds executed in 1970 71 and 1972.
It was contended that at the relevant time, the property did not belong to the assessee.
It was held by the Gujarat High Court that receipt of part of the sale price and parting of possession would not divest the vendor of immovable property of his title to the property.
The doctrine of part performance embodied in section 53A of the had limited application and afforded a good defence to the person put in possession.
The legal position and the relevant clauses of the agreement of sale showed that the assessee was the owner of the property at the relevant valuation dates.
Therefore, according to the Gujarat High Court, the property agreed to be sold which had been parted with was includible as an asset of the assessee.
Even in some cases the phrase 'belonging to ' is capable of connoting interest less than absolute perfect legal title.
See in this connection the observations of this Court in Raja Mohammad Amir Ahmed Khan vs Municipal Board of Sitapur and another, A.I.R. 1965 S.C. 1923.
This Court observed in that case that though the expression 'belonging to ' no doubt was capable of denoting an absolute title was nevertheless not confined to connoting that sense.
Full possession of an interest less than that of full ownership could also be signified by that expression.
Before concluding this aspect of the matter, there is certain as 1087 pect which has to be borne in mind.
Reliance was placed as we have mentioned hereinbefore on the decision of the Gujarat High Court in the case of Commissioner of Wealth tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad (supra) It was contended that if the Gujarat High Court 's view was correct, then the assessee 's contention on this aspect in the instant appeal cannot be accepted.
On behalf of the assessee it was submitted that the decision of the Gujarat High Court in Commissioner of Wealth tax, Gujarat I vs Kum.
Manna G. Sarabhai (supra) not having been taken into consideration by the Gujarat High Court in the later decision, the Gujarat High Court the judgment on which revenue relied was not correct.
It is not necessary in the view we have taken on the other aspect of the matter, namely, the use of the expression 'belonging to ' to discuss this point any further.
It was further submitted before us that from the said decision of the Gujarat High Court in Commissioner of Wealth Tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad (supra), a special leave petition was filed by the assessee, which was dismissed by this Court on 17th January, 1983.
(See in this connection 144 I.T.R. Statute page 23).
It is, however, well settled that dismissal of special leave petition in limine does not clothe the decision under appeal in special leave petition with the authority of the decision of this Court.
See in this connection the observations in Daryao & Ors.
vs State of U.P. & Ors.
, ; It may be mentioned as was rightly observed by a full bench of the Allahabad High Court in Sahu Govind Prasad vs Commissioner of Income tax, at 863, special leave is a discretionary jurisdiction and the dismissal of a special leave petition cannot be construed as affirmation by this Court of the decision from which special leave was sought for.
On this aspect, it may also be mentioned that our attention was drawn to some decisions which we shall presently note.
The Punjab and Haryana High Court in the case of Smt.
Kala Rani vs Commissioner of Income tax, Patiala I, had occasion to discuss this aspect of the matter.
But the Punjab and Haryana High Court was construing the meaning of the expression 'owner ' under section 22 of the Income tax Act, 1961.
There, the division bench of the Punjab & Haryana High Court held that the assessee occupied the property after the execution of the agreement of sale deed in his favour and after completion of the building, he was in a position to earn income from the property sold to him, though the registered sale deed was executed subsequently in April, 1969.
It was 1088 held that the assessee was 'owner ' in terms of section 22 of the Income tax Act, 1961.
The Madras High Court had occasion to discuss this aspect in Mrs. M.P. Gnanambal vs Commissioner of Income tax, Madras, There the facts were entirely different and the Madras High Court held that the rights with reference to the properties in question in that case could only be described as a delusion and a snare so long as the sons continued to occupy the property which they were entitled to under the will and to describe the assessee 's right as owner of the property would be a complete misnomer.
There, the court was construing the will and section 22 of Income tax Act, 1961 as to who were the owners in terms of the will.
In all these cases as was reiterated by the Calcutta High Court in S.B. (House & Land) Pvt. Ltd. vs Commissioner of Income tax, West Bengal, the question of ownership had to be considered only in the light of the particular facts of a case.
The Patna High Court in Addl.
Commissioner of Income tax Bihar vs Sahay Properties and Investment Co. (P) Ltd., was concerned with the construction of the expression 'owner ' in section 22 of the Income tax Act, 1961.
There, the assessee had paid the consideration in full and had been in exclusive and absolute possession of the property, and had been empowered to dispose of or even alienate the property.
The assessee had the right to get the conveyance duly registered and ex ecuted in its favour, but had not exercised that option.
The assessee was not entitled to say that because of its own default in having a deed registered in its name, the assessee was not the owner of the property.
In the circumstances, it was held that the assessee must be deemed to be the owner of the property within the meaning of section 22 of Income tax Act, 1961 and was assessable as such on the income from the property.
This is only an illustrative point where in certain circumstances without any registered conveyance in favour of a purchaser, a person can be considered to be 'owner '.
It may incidentally be mentioned that this Court has granted special leave to appeal against this judgment.
See in this connection Salmond 's conception of 'ownership ' has been noted.
The meaning of the expression 'belonging to ' has also been noted.
We have discussed the cases where the distinction between 'belonging to ' and 'ownership ' has been considered.
The following facts emerge here: (1) the assessee has parted with the possession which is one of the essen 1089 tials of ownership, (2) the assessee was disentitled to recover possession from the vendee and assessee alone until the document of title is executed was entitled to sue for possession against others i.e. others than the vendee in possession in this case.
The title in rem vested in the assessee, (3) The vendee was in rightful possession against the vendor, (4) the legal title, however, belonged to the vendor.
(5) The assessee had not the totality of the rights that constitute title but a mere husk of it and a very important element of the husk.
The position is that though all statutes including the statute in question should be equitably interpreted, there is no place of equity as such in taxation laws.
The concept of reality in implementing fiscal provision is relevant and the Legislature in this case has not significantly used the expression 'owner ' but used the expression 'belonging to '.
The property in question legally, however, cannot be said to belong to the vendee.
The vendee is in rightful possession only against the vendor.
Speaking for myself, I have deliberated long on the question whether in interpreting the expression 'belonging to ' in the Act, we should not import the maxim that "equity looks upon a thing as done which ought to have been done" and though the conveyance had not been executed in favour of the vendee, and the legal title vested with the vendor, the property should be treated as belonging to the vendee and not to the assessee.
I had occasion to discuss thoroughly this aspect of the matter with my learned Brother and in view of the position that legal title still vests with the assessee, the authorities we have noted are preponderantly in favour of the view that the property should be treated as belonging to the assessee in such circumstances, I shall not permit my doubts to prevail upon me to take the view that the property belongs to the vendee and not to the assessee.
I am conscious that it will work some amount of injustice in such a situation because the assessees would be made liable to bear the tax burden in such situations without having the enjoyment of the property in question.
But times perhaps are yet not ripe to transmute equity on this aspect in the interpretation of law much as I would have personally liked to do that.
As Benjamin Cardozo has said, "The judge, even when he be free, is not wholly free".
A Judge cannot innovate at pleasure.
It may be said that the legislature having designedly used the expression 'belonging to ' and not the expression 'owned by ' had perhaps expected judicial statesmanship in interpretation of this expression as leading to an interpretation that in a situation like this it should not be treated as belonging to the assessee but as said before 1090 times are not yet ripe and in spite of some hesitation I have persuaded myself to come to the conclusion that for all legal purposes the property must be treated as belonging to the assessee and perhaps legislature would remedy the hardship of assessee in such cases if it wants.
The assessee had a mere husk of title and as against the vendee the assessee had no reality of title but as against the world, he was still the legal owner and real owner.
As has been observed by this Court in Commissioner of Wealth tax, West Bengal vs Bishwanath Chatterjee and Others (supra) the property is owned by one to whom it legally belongs.
The property does not legally belong to the vendee as against the vendor, the assessee.
In Webstor 's Dictionary 'belonging to ' is explained as meaning, inter alia, to be owned by, be in possession of.
The precise sense in which the words were used, therefore, must be gathered only by reading the instrument or the document as a whole.
Section 53A of the Transfer of Property Act, 1908 is only a shield and not a sword.
In Aiyar 's Law Laxicon of British India, [1940] Edition page 128, it has been said that the property belonging to a person has two meanings (1) ownership; (2) the absolute right of the user.
The same view is reiterated in Stroud 's Judicial Dictionary 4th Edn.
page 260.
The expression: 'property belonging to ' might convey absolute right of the user as well as of the ownership.
A road might be said, with perfect propriety, to belong to a man who has the right to use it as of right, although the soil does not belong to him.
Under section 53A of the Transfer of Property Act, 1908 where possession has been handed over to the purchasers and the purchasers are in rightfuly possession of the same as against the assessee and the occupation of the property in question, and secondly that the entire consideration has been paid, and thirdly the purchasers were entitled to resist eviction from the property by the assessee in whose favour the legal title vested because conveyance has not yet been executed by him and when the purchasers were in possession had right to call upon the assessee to execute the conveyance, it cannot be said that the property legally belonged to the assessee in terms of section 2(m) of the Act in the facts and circumstances of the case even though the statute must be read justly and equitably and with the object of the section in view.
We are conscious that if a person has the user and is in the enjoyment of 1091 the property it is he who should be made liable for the property in question under the Act yet the legal title is important and the legislature might consider the suitability of an amendment if it is so inclined.
This question therefore must be answered in favour of the revenue and in the affirmative.
The appeal in this aspect must therefore fail.
For the second question it is necessary to refer to section 2(e) which provides for the definition of assets by stating that "assets" includes property of every description, movable or immovable, but does not include, ". . . (iv) a right to any annuity in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant;" Therefore, in order to be excluded from the assets of the assessee, the right being the sum which was annually to be paid under the agreement or letter mentioned hereinbefore must be by the terms and conditions precluded commutation of any portion thereof into a lumpsum grant.
The question therefore is could this lumpsum grant of Rs.25 lakhs be commuted by the Nizam and the capital value of the commutation be received? Furthermore, the next question that arises was whether that commutation was precluded by the terms and conditions relating to that right.
It may be that preclusion might be either by express terms and conditions of the right or as an inference from the terms and conditions of the payment.
We need not go into the rights of the erstwhile princes before the abolition of the privy purses whether the privy purses could be commuted or not.
The term 'annuity ' is not defined in the Act.
According to the Oxford Dictionary, 'annuity ' means sums payable in respect of a particular year; yearly grant.
An annuity is a certain sum of money payable.
yearly either as a personal obligation of the grantor or out of property.
The hall mark of an annuity, according to Jarman On Wills (page 1113) is: (1) it is a money; (2) paid annually; (3) in fixed sum; and (4) usually it is a charge personally on the grantor.
1092 Whether a particular sum is an annuity or not has been considered in various cases.
It is not necessary in the facts and circumstances of the case and in view of the terms of the payment indicated to examine all these cases.
In Ahmed G.H. Ariff and Others vs Commissioner of Wealth tax, Calcutta, , this Court held that the word 'annuity ' in clause (iv) of section 2(e) of the Act must be given the signification which it has assumed as a legal term owing to judicial interpretation and not its popular and dictionary meaning.
In Commissioner of Wealth tax Gujarat vs Arundhati Balkrishna, , there were two deeds of trust.
The assessee 's father had settled certain shares in trust for the benefit of the assessee and her two brothers.
The trustees were to pay the residue of the income from the trusts in equal shares to the beneficiaries after deducting all costs and expenses.
The assessee had a right after she had attained majority and after the birth of her first child to require the trustees to pay her shares out of the corpus of the trust fund absolutely up to one half thereof.
Under another trust created by her mother in law of certain sums of money and certain shares the trustees were required to pay the income of the trust funds after deducting expenses to the assessee during her lifetime.
It was held that the payments to the assessee under the trust deeds were not 'annuities ' within the meaning of section 2(e) (iv) of the Act.
In Commissioner of Wealth tax, Rajasthan vs Her Highness Maharani Gayatri Devi of Jaipur, , this question arose again.
The Maharaja of Jaipur had executed a deed of irrevocable trust whereunder the properties mentioned in the schedule thereto stood transferred to the trustee.
The trust fund was to include the assets mentioned in the schedule and also such additions thereto and other capital moneys which might be received by the trustee.
The assessee was one of the beneficiaries under the trust to whom the trustee was to pay during her lifetime 50 per cent of the income of the trust fund.
The question was whether the assessee had a life interest in the corpus of the trust fund and her interest was therefore an 'asset ' liable to wealth tax or whether the assessee had only a right to an annuity and as such her right was exempt from wealth tax in view of section 2(e) (iv) of the Act.
It was held by this Court that since neither the trust fund nor the amount payable to the assessee was fixed and the only thing certain was that she was entitled to 50 per cent of the income of the trust fund, 1093 what the assessee was entitled to was not an annuity but an aliquot share in the income of the trust fund.
The assessee had a life interest in the trust fund and the right of the assessee under the trust deed was not exempt from wealth tax by virtue of the provisions of section 2(e) (iv).
In Commissioner of Wealth tax, Lucknow vs P.K. Banerjee, , it was held that the right of the assessee in the trust fund in that case was not an 'annuity ' and was not exempt from the wealth tax under section 2(e) (iv) of the Act.
It was further observed that in order to constitute an 'annuity ' the payment to be made periodically should be a fixed or predetermined one and it should not be liable to variation depending upon or on any ground relating to the general income of the fund or estate which was charged for such payment.
In this case, in view of the background of the terms of payment and the circumstances why the payment was made, there cannot be any doubt that Rs.25 lakhs annually was an 'annuity '.
It was a fixed sum to be paid out of the property of the Government of India in lieu of the previous income of the assessee from Sarf e khas.
Therefore, it was an annuity.
The only question that arises, was there any express provision which prevented commutation of this annuity into a lumpsum? Counsel for the revenue contended that there must be an express provision which must preclude commutation.
In this case indeed there is no express provision from the document itself.
The question is: can, from the circumstances of the case, such an express provision precluding commutation be inferred in the facts and circumstances of this case? The background of the facts and circumstances of the payment has to be kept in mind.
The Nizam had certain income.
He was being given three sums one was the privy purse which was not commutable; the other was payment of Rs.25 lakhs for the upkeep of palaces etc.
and the third of Rs.25 lakhs in lieu of his previous income from the Sarf e khas.
Income is normally meant for expenditure.
The Nizam had to incur various expenditures.
Commutation is often made when one is not certain as to whether the source from which that income comes for example, when a man retires from service, he normally commutes in order to ensure for himself and after his death for his family a certain income which he can ensure by getting the commuted amount invested in his private bank or otherwise which he may not be sure because upon his death the pension will cease.
1094 In this case this being an aggrement between erstwhile ruler and the Government of India, there is no such motivation and this payment of Rs.25 lakhs in lieu of the previous income of Sarf e khas must be read in conjunction with two other sums namely Rs.50 lakhs as privy purse and Rs.25 lakhs for upkeep of palaces.
This bears the same character.
As privy purses were not commutable, we are of the opinion that from the circumstances and keeping in background of the payment, there was an express provision flowing from the circumstances precluding the commutation of this amount of Rs.25 lakhs.
If that is the position, then, in our opinion, it was exempt under section 2(e) (iv) of the Act.
There was no right granted and can be gathered from the terms of the grant of payment for the assessee to claim commutation of the amount of Rs.25 lakhs.
That would defeat the purpose and the set up of the arrangement under which the payment of the amount was made.
The nature of privy purses have been discussed in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors.
vs Union of India, ; We are, however, not concerned with the controversy of the privy purse.
But it is quite evident from the nature of the sum stipulated in the letter, the assessee had no right to claim commutation.
Taking that fact in conjunction with the circumstances under which the payment of Rs.25 lakhs was agreed to, we are of the opinion that it must be held that from the terms of the agreement, there was an express stipulation precluding commutation.
If that is so then it comes within clause (iv) of section 2(e) of the Act and the assessee was entitled to exemption.
The question therefore must also be answered in the negative and in favour of the assessee.
The appeal is disposed of in the aforesaid terms.
The judgment and order of the High Court are modified accordingly.
In view of the divided success, there will be no order as to costs.
A.P.J. Appeal allowed in part.
| In the assessment year 1957 58, the Wealth Tax Officer had included a sum of Rs.4,90,775 representing the market value of certain immovable properties in respect of which, although the assessee had received full consideration money, he had not executed any registered sale deeds in favour of the vendees.
The question was whether the properties belonged to the assessee even after such sale for the purpose of inclusion of his net wealth within the meaning of section 2(m) of the Wealth Tax Act, 1957.
The Wealth Tax Officer held that the assessee 1073 still owned those properties and consequently the value of the same was included in his net wealth.
On appeal, the Appellate Assistant Commissioner sustained the order of the Wealth Tax Officer with certain deductions in value.
On further appeal, the Tribunal held that the assessee had ceased to be the owner of the properties because the assessee having received the consideration money from the purchasers and the purchasers having been put into possession were protected in terms of section 53A of the and the term 'owner ' not only included the legal ownership but also the beneficial ownership.
The High Court following the ratio of Commissioner of Income Tax, A.P. Hyderabad vs Nawab Mir Barkat Ali Khan, , reversed the order of Tribunal and upheld that of the Wealth Tax Officer and the Assistant Appellate Commissioner.
The Assessee Nizam of Hyderabad, was a paramount ruler owning certain private properties called Sarf e khas.
On surrendering his paramountcy and acceding to the Union of India, his private properties were taken over by the Government and it was agreed to pay him a sum of Rs. 1 crore annually distributed as follows: (a) Rs.50 lakhs as a privy purse; (b) Rs.25 lakhs in lieu of his previous income from the Sarf e khas, and (c) Rs.25 lakhs for the upkeep of palaces etc.
The Government in its letter to the assessee stated that his Sarf e khas estates should not continue as an entirely separate administration independent of the Diwani administrative structure and it should, therefore, be completely taken over by the Diwani, its revenue and expenditure being merged with the revenues and expenditure of the State.
Question was whether the assessee 's right to receive the sum of Rs.25 lakhs O.S. from the State Government was an asset for the purposes of inclusion in his net wealth under the Wealth Tax Act, 1957.
The Wealth Tax Officer treating the said sum as an annuity and as an asset or property, capitalised the same to Rs.99,78,572 and included that amount as an asset of the assessee.
The Appellate Assistant Commissioner agreed with this view.
The Tribunal, however, refused to call it as an annuity, characterised it as an annual payment for surrender of life interest and held that the capitalised value of such life interest be added to the net wealth and taxed.
The High Court agreed with the view taken by the Tribunal that it was only an annual payment made in compensation for the property which had been taken over by the Govern 1074 ment, therefore, it was a part of the wealth and it was possible to commute the annual payment of Rs.25 lakhs.
The High Court found that there was neither any express preclusion nor any circumstances from which legitimately an inference could be drawn precluding commutation of the said amount into a lumpsum grant.
Consequently, the High Court upheld the order of the Wealth Tax Tribunal.
Partly allowing the Appeal, ^ HELD: (1) Under section 3 of the Wealth Tax Act, 1957 the charge of wealth tax is on the 'net wealth ' of the assessee on the relevant valuation date as defined under section 2(m) of the Act.
[1081E F] (2) The material expression for the purposes of this appeal is "belonging to the assessee on the valuation date".
The properties in respect of which registered sale deeds had not been executed but consideration for sale of which had been received and possession in respect of which had been handed over to the purchasers belonged to the assessee for the purpose of inclusion of his net wealth.
[1081G H; 1082A] (3) It is not necessary for the purpose of section 2(m) to be tied down with the controversy whether in India there is any concept of legal ownership apart from equitable ownership or not or whether under sections 9 and 10 of the Indian Income Tax Act, 1922 and sections 22 to 24 of the Indian Income Tax Act, 1961, where 'owner ' is spoken of in respect of house properties, the legal owner is meant and not the equitable or beneficial owner.
All the rights embedded in the concept of ownership of Salmond cannot strictly apply either to the purchasers or the assessee in the instant case.
[1082C D; 1082H; 1083A] (4) The liability to wealth tax arises because of the belonging of the asset, and not otherwise.
Mere possession, or joint possession unaccompanied by the right to be in possession, or ownership of property would, therefore, not bring the property within the definition of "net wealth" for it would not then be an asset "belonging" to the assessee.
Unlike the provisions of Income tax Act, section 2(m) of the Act uses the expression 'belonging to ' to indicate that the person having lawful dominion of the assets would be assessable to wealth tax.
[1083C E] (5) Though the expression 'belonging to ' no doubt was capable of denoting an absolute title was neyertheless not confined to connoting that sense.
Full possession of an interest less than that of full ownership could also be signified by that expression.
[1086G H] 1075 Commissioner of Wealth tax, West Bengal vs Bishwanath Chatterjee and Others, and Raja Mohammad Amir Ahmed Khan vs Municipal Board of Sitapur and another.
A.I.R. , relied upon.
Webster 's Distionary and Aiyar 's Law Lexicon of British India, [1940] edn., p. 128 and Salmond on Jurisprudence, 12th edn., pp. 246 to 264, referred to.
(6) The property is owned by one to whom it legally belongs.
The property does not legally belong to the vendee as against the vendor, the assessee.
The precise sense in which the words 'belonging to ' were used in section 2(m) of the Act must be gathered only by reading the instrument or the document as a whole.
[1090C D] (7) Though all statute including the Wealth Tax Act should be equitably interpreted, there is no place of equity as such in taxation laws.
The concept of reality in implementing fiscal provision is relevant and the Legislature in section 2(m) has not significantly used the expression 'owner ' but used the expression 'belonging to '.
The Legislature having designedly used the expression 'belonging to ' and not the expression 'owned by ' had perhaps expected Judicial statesmanship in interpretation of this expression.
[1089G H] (8) On a distinction being made between 'belonging to ' and 'ownership ' the following facts emerge: (1) the assessee has parted with the possession which is one of the essentials of ownership; (2) the assessee was disentitled to recover possession from the vendee and assessee alone until document of title is executed was entitled to sue for possession against others i.e. others than the vendee in possession in this case.
The title in rem vested in the assessee; (3) the vendee was in rightful possession against the vendor; (4) the legal title, however, belonged to the vendor; and (5) the assessee had not the totality of the rights that constitute title but a mere husk of it and a very important element of the husk.
[1088H; 1089A B] (9) The property in question legally cannot be said to belong to the vendee.
The vendee is in rightful possession only against the world.
Since the legal title still vests with the assessee, the property should be treated as belonging to the assessee.
It will work some amount of injustice in such a situation because the assessees would be made liable to bear the tax burden in such situations without having the enjoyment of the property in question.
But times perhaps are not ripe to transmute equity on this aspect in the interpretation of law.
[1089C F] 1076 (10) Under section 53A of the Transfer of Property Act, 1908 where possession had been handed over to the purchasers and the purchasers are in rightful possession of the same as against the assessee, secondly that the entire consideration has been paid, and thirdly the purchasers were entitled to resist eviction from the property by the assessee in whose favour the legal title vested because conveyance has not yet been executed by him and when the purchasers were in possession had right to call upon the assessee to execute the conveyance, it cannot be said that the property legally belonged to the assessee in terms of section 2(m) of the Act in the facts and circumstances of the case, even though the statute must be read justly and equitably and with the object of the section in view.
If a person has the user and is in the enjoyment of the property it is he who should be made liable for the property in question under the Act, yet the legal title is important and the Legislature might consider the suitability of an amendment if it is so inclined.
[1090F H; 1091A] Commissioner of Wealth tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad, approved.
Commissioner of Income tax, A.P. Hyderabad vs Nwab Mir Barkat Ali Khan, referred to.
Commissioner of Wealth tax, A.P. vs Trustees of H.E.H. Nizam 's family (Remainder Wealth) Trust, , R.B. Jodha Mal Kuthiala vs Commissioner of Income tax, Punjab, Jammu & Kashmir and Himachal Pradesh, , Commissioner of Income tax, West Bengal II vs Ganga Properties Ltd., , Commissioner of Wealth tax Gujarat I vs Kum Manna G. Sarabhai, , Commissioner of Income tax, Gujarat vs Ashaland Corporation, , Commissioner of Income tax, Bombay City III vs Smt.
T.P. Sidhwa, 133 I.T.R.840, Smt.
Kala Rani vs Commissioner of Income Tax, Patiala I, , Mrs. M.P. Gnanambal vs Commissioner of Income tax, Madras, , S.B. (House & Land) Pvt. Ltd. vs Commissioner of Income tax, West Bengal, and Addl.
Commissioner of Income tax Bihar vs Sahay Properties and Investment Co. (P) Ltd., distinguished.
(11) Special leave is a discretionary jurisdiction and the dismissal of a special leave petition cannot be construed as affirmation by the Supreme Court of the decision from which special leave was sought for.
[1087E] Daryao & Ors.
vs State of U.P. & Ors.
, ; relied upon.
1077 Sahu Govind Prasad vs Commissioner of Income tax, at 863 approved.
(12) Section 2(e) (iv) of the Wealth Tax Act, 1957 provides that "assets" includes property of every description, movable or immovable, but does not include a 'right to any annuity ' in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant.
[1091B D] (13) The term 'annuity ' is not defined in the Act.
It must be given the signification which it has assumed as a legal term owing to judicial interpretation and not its popular and dictionary meaning.
An 'annuity ' is a certain sum of money payable yearly either as a personal obligation of the grantor or out of property.
The hall mark of an annuity is: (1) it is a money; (2) paid annually; (3) in fixed sum; and (4) usually it is a charge personally on the grantor.
[1091G H] (14) In this case, in view of the background of the terms of payment and the circumstances why the payment was made, there cannot be any doubt that Rs.25 lakhs annually was an 'annuity '.
It was a fixed sum to be paid out of the property of the Government of India in lieu of the previous income of the assessee from Sarf e khas.
Therefore, it was an 'annuity '.
[1093C D] (15) In the instant case, there is no express provision in the document itself which prevented commutation of this annuity into a lump sum.
For inferring whether such as express provision precluding commutation exists, the background of the facts and circumstances of the payment has to be kept in mind.
The assessee was given Rs.25 lakhs in lieu of his previous income from the Sarf e khas.
Income is normally meant for expenditure.
The assessee had to incur various exenditures.
Commutation is often made when one is not certain as to whether the source from which that income comes.
In this case, this being an agreement between earstwhile ruler and the Government of India, there is no such motivation and this payment of Rs.25 lakhs in lieu of the previous income of Sarf e khas must be read in conjunction with two other sums namely Rs.50 lakhs as privy purse and Rs.25 lakhs for upkeep of palaces.
This bears the same character.
[1093E H; 1094A B] (16) As privy purses were not commutable, from the circumstances and keeping in background of the payment, there was an express provision flowing from the circumstances precluding the 1078 commutation of this amount of Rs.25 lakhs and, therefore, it was exempt under section 2(e) (iv) of the Act.
[1094B C] (17) There was no right granted and can be gathered from the terms of the grant of payment for the assessee to claim commutation of the amount of Rs.25 lakhs.
That would defeat the purpose of the set up of the arrangement under which the payment of the amount was made.
From the nature of the sum stipulated in the letter written by the Government to the assessee, the assessee had no right to claim commutation.
Taking that fact in conjunction with the circumstances under which the payment of Rs.25 lakhs was agreed to, it is held that from the terms of the agreement, there was an express stipulation precluding commutation and, therefore, it comes within cl.
(iv) of section 2(e) of the Act and the assessee was entitled to exemption.
[1094C F] Oxford Dictionary: Jarman on Wills (P. 1113), relied on and Ahmed G.H. Ariff and Others vs Commissioner of Wealth tax, Calcutta, , Commissioner of Wealth tax Gujarat vs Arundhati Balkrishna, , Commissioner of Wealth tax, Rajasthan vs Her Highness Maharani Gayatri Devi of Jaipur, , Commissioner of Wealth tax, Lucknow vs P.K. Banerjee, and H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors.
vs Union of India; , referred to.
|
Special Leave Petition (Civil) No. 15327 of 1989.
From the Judgment and Order dated 18.7.
1989 of the Rajasthan High Court in D.B. Civil Writ Petition No. 2161 of 1988.
C.S. Agarwal, H.R. Parekh, S.K. Jain for the Petitioner.
O.P. Vaish, section Rajappa and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This is a special leave peti tion directed against the judgment and order of the High Court of Rajasthan, dated 18th July, 1989.
The petitioner herein i.e. Smt.
Kusum Lata Singhal carried on, at all relevant times, business under the name and style of M/s. Lata & Company and she claims to be an authorised stockist of Baba Brand Tobacco manufactured by M/s. 495 Dharampal Premchand Ltd., New Delhi.
Mr. R.K. Singhal is the husband of the petitioner.
In the judgment under appeal, it has been stated that Mr. R.K. Singhal owns a house No. E117, Shastri Nagar in Jaipur and the petitioner lived with her husband at all material times.
Mr. Singhal was a partner in Lata Sales Centre and is said to be a sub dealer of M/s. Lata & Company.
A search under section 134 of the Income Tax Act, (hereinafter called 'the Act ') was conducted at the said premises on 25/26th November, 1987.
During the search, valuables and books of accounts were seized on 26th Novem ber, 1987, and a notice under rule 112A of the Income Tax Rules, 1962 (hereinafter referred to as 'the Rules ') read with sub section (5) of Section 132 of the Act was issued to the petitioner by the Income Tax Officer.
The notice was served on the husband of the petitioner.
In the application under Article 226 of the Constitution of India filed before the High Court, the petitioner claimed return of account books and other valuables which were seized on 26th November, 1987.
The return was claimed be cause, according to the petitioner, the retention of the books and valuables was in violation of the provisions of section 132 of the Act.
The High Court in the judgment under appeal came to the conclusion that the authorisation for search in the instant case under section 132(1) of the Act was not valid or legal.
Therefore, the High Court held that search was bad.
At the time of search the silver and gold ornaments worth about Rs.4,58,1089 were found and some other silver and gold ornaments were also found but these were not seized.
The High Court had directed return of account books to the petitioner on furnishing photostat copies thereof.
The High Court came to the conclusion that the authorisation under section 132(1) of the Act was not in accordance with law and, therefore, the search and seizure of the assets could not be said to have been in accordance with law.
The High Court noted that in view of the fact that by virtue of the power under section 132(7) and the order made under section 132(5) of the Act against the husband of the peti tioner, the valuables etc. could not be ordered to be re turned to the petitioner.
Aggrieved thereby, the petitioner seeks to challenge the said order under Article 136 of the Constitution of India.
Mr. C.S. Agarwal appearing for the petitioner, contended before us that if search and seizure were illegal then the evidence obtained by such search and seizure could be uti lised in subsequent proceedings, but the items of 386 jewellery and goods worth, according to him, over Rs.2,97,000 were liable to be returned.
We are, however, unable to entertain this appeal.
In the instant case the husband of the wife stayed in the same premises.
The author isation of search and seizure in respect of account books and goods which were seized was against the wife but in the proceedings under section 132(5) of the Act the husband Mr. Singhal has contended and claimed that the ornaments in question or the jewellery belonged to him.
Mr. Vaish, learned counsel appearing for the revenue, has drawn our attention to an authorisation issued against the husband Mr. Singhal under sub section (5) of section 132 of the Act.
Indeed, Mr. R.K. Singhal has stated on oath before the authorised officer at the time of search that the same belonged to him and he has claimed the same to be treated as representing his undisclosed income.
Mr. R.K. Singhal, the husband, as his evidence has recorded in the proceedings against him, has disclosed the same and surren dered a total sum of over Rs.4,00,000 consisting of undis closed cash of Rs. 1,16,550 and excessive jewellery worth Rs.2,97,750 received from his possession as his income for the purpose of income tax assessment for the current year, which he claims to have earned from his business.
Therefore, it appears that there is dispute as to who is the owner of the jewellery and ornaments or in other words, to whom do these belong.
If in such a situation the High Court has declined to direct return of items of jewellery and orna ments, such decision cannot be faulted.
Even though the search and seizure has been declared illegal, it cannot be illegal and the question of, dispute about the items not being urged before the High Court, we cannot say that the High Court has committed any error in this case thereby requiring interference by this Court, or, in other words, that injustice has been caused to any party.
It is well settled that the dispute as to the ownership of jewellery in question cannot be reserved in proceedings under Article 226 of the Constitution in the manner sought for by the petitioner.
Mr. Agarwal drew our attention to the decision in Assaina & Anr.
vs Income Tax Officer, Calicut & Ors., wherein the Kerala High Court has observed that the goods which were seized from the custody of a particular person, should normally be returned to the person from whose custody the same had been seized.
The aforesaid may be the position where there is no dispute as to the ownership of the goods in question.
In such a situa tion, return of the goods to the person from whose custody the same are seized, may be possible but the said decision or the observations therein would be no authority in support of the petitioner 's contention in the instant case where there is a dispute.
397 Our attention was also drawn to certain observations of this Court in J.R. Malhotra & Anr.
vs Addl.
Sessions Judge, Jullundur & Ors., ; in support of the propo sition that revenue could not indirectly keep the money seized on the plea that there would be a demand and that the money may be kept by revenue where surrender and seizure was wrong.
We are afraid that the aforesaid observations of this Court are also of no avail in the light of the perspective that we have mentioned hereinbefore.
The said observations were made entirely in a different context.
Our attention was also drawn to the observations of this Court in Commissioner of Commercial Taxes, Board of Revenue, Madras & Anr.
vs Ramkishan Shrikishan Jhaver etc.
; , in support of the proposition that when a search was found illegal, the goods should be returned.
Normally speak ing, that would be so.
This proposition is unexceptional but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this case.
Mr. Agarwal further contended that if the proceedings under Section 132(5) for the original search were held to be invalid then all proceedings thereafter would be invalid and, therefore, the proceedings initiated as a result of that search even against the husband, would be invalid and such a statement of the husband recorded, cannot be utilised any further.
In the instant controversy we are not concerned whether the proceedings against the husband under section 132(5) of the Act are valid or not but irrespective of the validity of the proceedings, the evidence or testimony as mentioned hereinbefore, wherein he has asserted the orna ments and jewellery to be his, cannot be wiped out and does not become non existent.
After all, we are concerned with the contention of the husband that the jewellery in question belongs to him, in this case.
The aforesaid being the factu al matrix, the High Court, in our opinion, was pre eminently justified in declining to direct return of these identical jewellery and other items to the wife.
If that is the posi tion then it cannot be said that the High Court has commit ted any error in law which requires rectification by this Court.
This application for leave under Article 136 of the Constitution is certainly not entertainable.
In the prem ises, this application must be dismissed without any order as to costs.
Interim orders, if any, are vacated.
R.S.S. Petition dis missed.
| The petitioners are retired railway employees who were covered by the Railway Contributory Provident Fund Scheme.
The Provident Fund Scheme was replaced in the year 1957 by the Pension Scheme.
The employees who entered Railway serv ice on or after 1.4.1957 were automatically covered by the Pension Scheme instead of the Provident Fund Scheme.
The employees who were already in service on 1.4.1957 were given an option either to retain the Provident Fund benefits or to switch over to the pensionary benefits.
The petitioners had opted for Contributory Provident Fund Scheme.
The petitioners ' case is that till 1.4.1957 or even sometime thereafter, the pensionary benefits and the alter native Contributory Provident Fund benefits were considered to be more or less equally beneficial; at the time when the option was given to choose between pension and Provident Fund, the employees had no idea that in future improvements would be made to either of them; and that as a result of the decision of the Railways to implement the judgment of this Court in D.S. Nakara vs Union of India, ; , and to extend the liberalised pension benefits even to those railway employees who had retired long before the liberali sations of pension were introduced, the pension retirees derived manifold benefits while P.F. retirees ' benefits remained stagnant.
The main legal contention of the petitioners is that the Railways had issued twelve notifications giving option to certain Provident Fund retirees after the respective cut off dates, to opt for the Pension Scheme 353 even after their retirement, but the same options were not given to other similarly situated Provident Fund retirees beyond the respective cut off dates, which was discriminato ry and hence violative of article 14 of the Constitution.
It is further contended that the notifications specifying cut off dates were arbitrary and un related to the objects sought to be achieved by giving of the option, and therefore violative of Article 14 and also of the principle laid down in Naka ra 's case.
According to counsel, the principle is that pension retirees could not be divided by such arbitrary cut off dates for the purpose of giving benefits to some and not to other similarly situated employees.
It is submitted that by analogy the principle is equally applicable to the Provident Fund retirees as a class.
On these grounds, it is prayed that applying the law laid down in Nakara 's case this Court should simply strike down or read down paragraph 3.1 of the 12th option dated 8.5.1987.
That paragraph said that all Contributory Provi dent Fund beneficiaries who were in service on 1.1.86 and who were still in service on the date of the order would be deemed to have come over to the pension scheme.
It is sub mitted that once this limiting requirement is removed all the Contributory Provident Fund beneficiaries shall be eligible and will be deemed to have come over to the pension scheme.
As the basis for striking or reading down paragraph 3.1 on Nakara 's ratio, it is urged that all the Railway employees both in service and pensioners constitute one family and must be treated as one class, and Government 's obligation to look after the retired Railway employees both under the pension scheme and the provident fund scheme being the same, they could not be treated differently, and any differential treatment will be discriminatory and violative of Article 14 of the Constitution of India.
In Nakara 's case the date arbitrarily chosen was struck down and, as a re sult, the revised formula for computing pension was made applicable to all the retired pensioners.
On behalf of the respondents it was contended that the options were meant to give the Provident Fund retirees after the specified dates option to switch over to Pension Scheme and that each specified date had nexus with the reason for granting the particular option.
It is further submitted that the petitioners ' basic assumption is erroneous inasmuch as Nakara 's case did not hold that whenever there was a liber alisation of pension, aH other pension retirees and Provi dent Fund retirees must be given the option, and that the older system of pension or Provident Fund was always insuf ficient.
Dismissing the writ petitions and the Special Leave Petition, this Court, 354 HELD: (1) The doctrine of precedent, that is, being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it.
It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propo sitions wider than the case itself required." [374A B] (2) The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent.
The ratio decidendi is the underly ing principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision.
[382A; 374D] Caledonian Railway Co. vs Walker 's Trustees, and Quin vs Leathern; , (502), referred to.
(3) Apart from Article 141 of the Constitution the policy of courts is to stand by precedent and not to disturb settled point.
When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same.
[381F G] (4).
In Nakara 's case it was never required to be decid ed that all the retirees formed a class and no further classification was permissible.
At the same time it was never held in that case that both the pension retirees and the Provident Fund retirees formed a homogeneous class and that any further classification among them could be viola tive of Article 14.
On the other hand, the Court had clearly observed that it was not dealing with the problem of a "fund".
[380H] (5) The Railway Contributory Provident Fund is by defi nition a fund.
Besides, the Government 's obligation towards an employee under Contributory Provident Fund Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystalized, and thereafter no statutory obligation contin ues.
Whether there still remained a moral obligation is a different matter.
On the other hand, under the Pension Scheme the Government 's obligation does not begin until the employee retires when only it begins and it continues till the death of the employee.
Thus, on the retirement of an employee Government 's legal obligation under the Provident Fund account ends while under the Pension Scheme it begins.
Therefore, the provident fund retirees could not be treated at par with the living 355 pensioners.
There was, therefore, no discrimination, and the question of striking down or reading down clause 3.1 of the 12th option does not arise.
[380H; 381A B; 382F] Union of India vs Ghansham Das & Ors., S.L.P. No. 5973 of 1988 and Union of India vs Bidhubhushan Malik, ; , distinguished.
(6) The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension.
It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to Provident Fund retirees.
[381C] (7) An imaginary definition of obligation to include all the Government retirees in a class was not decided and could not form the basis for any classification for the purpose of this case.
Nakara cannot, therefore, be an authority for this case.
[381E] D.S. Nakara vs Union of India, , explained.
(8) The argument is that the State 's obligation towards pension retirees is the same as that towards Provident Fund retirees.
That may be morally so.
But that was not the ratio decidendi of Nakara.
Legislation has not said so.
To say so legally would amount to legislation by enlarging the circum ference of the obligation and converting a moral obligation into a legal obligation.
[380C D] (9) The statements made on behalf of the respondents to the effect that cut off dates had nexus with the reason for granting the particular option, has been substantiated by facts.
The cut off dates were not arbitrarily chosen but had nexus with the purpose for which the option was given.
[382B D] (10) That the Pension Scheme and the Provident Fund Scheme are structurally different is also the view of the Central Pay Commissions, and hence ex gratia benefits have been recommended, which may be suitably increased.
[383E]
|
Appeal No. 311 of 1959.
Appeal from the judgment and order dated October 31, 1955, of the Travancore Cochin High Court, Ernakulam, in Original Petition No. 75 of 1955.
A. N. Kripal and D. Gupta, for the appellant.
Sardar Bahadur, for the respondent.
December 13.
The Judgment of the Court was delivered by 238 KAPUR, J.
This is an appeal pursuant to a certificate of the High Court of Kerala against the judgment and order of that court and the question for decision is the applicability of section 35 of the Indian Income tax Act (hereinafter termed the 'Act ').
The facts which have given rise to the appeal are these: The respondent is a limited company which owns a spinning mills at Alwaye.
It commenced business in January, 1951, and its first accounting year ended on December 31, 1951, and the relevant assessment year is 1952 53.
It filed its return showing an income Rs. 3,21,284 without taking into account the amount allowable under section 15C of the Act.
On February 2, 1953, the net assessable income of the respondent was determined at Rs. 1,47,083 after deducting Rs. 1,79,081 under section 15C.
The respondent however declared a dividend of Rs. 4,72,415 which attracted the application of section 2 of the Finance Act, 1952, read with Part B, proviso (ii) of First Schedule and thus it became liable to the payment of additional income tax and this fact was overlooked by the Income tax Officer.
After giving notice under section 35 of the Act, the Income tax Officer by an order dated January 25, 1954, rectified this error and imposed an additional tax at the rate of one anna in the rupee.
He later discovered that this was also erroneous and the rate should have been 5 annas in a rupee.
By an order dated August 12, 1954, he rectified the error.
Under section 18A, advance income tax had to be paid and the respondent company had deposited only Rs. 5,000 and therefore became liable to penal interest under section 18A(8) of the Act.
By the same order this omission to impose penal interest was ' corrected and this error was thus rectified.
Against this order the respondent company went in revision under section 33A(2) to the Commissioner of Income tax but the revision was dismissed.
Thereupon the respondent company filed a petition in the High Court of Kerala under article 226 of the Constitution on the ground that section 35 of the Act did not apply and that on the merits additional tax could not be imposed.
The High Court by its judgment dated October 31, 239 1955 held that the orders made were without jurisdiction and therefore granted a writ of certiorari quashing the orders and the Income tax Officer has brought this appeal pursuant to a certificate of that High Court.
According to the High Court, section 35 of the Act was a provision for rectification of "mistakes apparent on the record" and in the opinion of the High Court it was a mistake analogous to O. 47, r. 1 of the Code of Civil Procedure for grant of review on the ground of mistake or error apparent on the face of the record and it construed it in the following words: "i.e. an evident error which does not require any extraneous matter to show its incorrectness.
The error may be one of fact but is not limited to matters of fact and include also errors of law.
But the law must be definite and capable of ascertainment.
An erroneous view of law on a debatable point or a wrong exposition of the law or a wrong application of the law or a failure to apply the appropriate law cannot be considered a mistake or error apparent on the face of the record.
See Chitaley 's C.P.C. Col.
III pp.
3549 50, 5th edition.
" On the ground that the applicability of proviso (ii) of Part B of the First Schedule of the Finance Act was a complex question which could not be said to be "apparent on the face of the record", the High Court held that the necessary foundation for the exercise of the powers under section 35 had not been laid and therefore the Income tax Officer had no jurisdiction to make the order that he did.
The High Court also held that the levy of penal interest under section 18A(8) of the Act for failure to make advance deposit under section 18A(3) was also without jurisdiction.
The learned Judges of the High Court seem to have fallen into an error in equating the language and scope of section 35 of the Act with that of O. 47, r. 1, Civil Procedure Code.
The language of the two is different because according to section 35 of the Act which provides for rectification of mistakes the power is given to the various income tax authorities within four years from the date of any assessment passed by them to rectify 240 any mistake "apparent from the record" and in the Civil Procedure Code the words are "an error apparent on the face of the record" and the two provisions do not mean the same thing.
This court in Maharana Mills (Private) Ltd. vs Income tax Officer, Porbandar (1) has laid down the scope of section 35 at p. 358 in the following words: "The power under section 35 is no doubt limited to rectification of mistakes which are apparent from the record.
A mistake contemplated by this section is not one which is to be discovered as a result of an argument but it is open to the Income tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.
" In that case the error arose because of an initial mistake in determining the written down value which was subsequently rectified.
In an earlier case M. K. Venkatachalam vs Bombay Dyeing & Manufacturing Co. Ltd. (2) where as a consequence of a subsequent amendment of the law having retrospective effect, the Income tax Officer reduced the amount of interest under section 18A(5) of the Act and the assessee obtained from the High Court a writ of prohibition against the Income tax Officer on the ground that the mistake contemplated had to be apparent on the face of the order and not a mistake resulting from an amendment of the law even though it was retrospective in its effect, it was held that it was a case of error apparent from the record.
Gajendragadkar, J. in his judgment said: "At the time when the Income tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952.
" Thus this court has held that discovery of an error on (1) (2) ; 241 the basis of assessment due to an initial mistake in determining the written down value is a mistake from the record and so is a misapplication of the law even though the law came into operation retrospectively.
The Income tax Officer, can, under section 35 of the Act, examine the record and if he discovers that he has made a mistake he can rectify the error and the error which can be corrected may be an error of fact or of law.
The restrictive operation of the power of review under 0.
47 R. 1, Civil Procedure Code is not applicable in the case of section 35 of the Act and in our opinion it cannot be said that the order of the Income tax Officer in regard to assessment in dispute was without jurisdiction.
In regard to section 18A (8) also the learned Judges have misdirected themselves because that section is mandatory.
It provides: section 18A(8) "Where, on making the regular assessment, the Income tax Officer finds that no payment of tax has been made in accordance with the foregoing provisions of this section, interest calculated in the manner laid down in sub section (6) shall be added to the tax as determined on the basis of the regular assessment.
" Therefore the Income tax Officer was required to calculate the interest in the manner provided under the provisions of that sub section and had to add it to the assessment.
Counsel for the respondent sought to raise the question as to the applicability of proviso (ii) of Part B of First Schedule of the Finance Act 1952 and relied upon the judgments of this Court in Commissioner of Income tax vs Elphinstone Spinning & Weaving Mills Co. Ltd. (1) and similar cases reported as Commissioner of Income tax, Bombay City vs Jalgaon Electric Supply Co. Ltd.(1) and Commissioner of Income tax, Bombay City vs Khatau Makanji Spinning and Weaving Co. Ltd. (3); but the facts of those cases were different.
In the first case there was no total income and the (1) (2) (3) [1960] 40 I.T.A. 189.
31 242 Finance Act was not applicable in that case.
In the second there was no profit in any preceding year and therefore the fiction failed because it postulates that there should be undistributed profits of one or more years immediately preceding the previous year.
In the third case also the Finance Act was inapplicable because the additional tax was not properly laid upon the total income and what was actually taxed was never a part of the total income of the previous year.
In our opinion the order of the High Court was erroneous.
We therefore allow this appeal and set aside the judgment and order of the High Court with costs in this court and in the High Court.
Appeal allowed.
| After the respondents net assessable income for the years ,952 53 was determined, it declared dividends which attracted provisions of the Finance Act, 1952, and became liable to the 237 payment of additional income tax, which fact was overlooked by the Income tax Officer, who, after giving notice under section 35 of the Income tax Act, rectified the error and imposed an additional tax at the rate of one anna in the rupee.
He later discovered that this was also erroneous and the rate should have been five anmas in a rupee and rectified the error; by the same order the omission to impose penal interest under section 18A(8) was rectified and penal interest was imposed.
The respondent 's case before the High Court was that section 35.of the Act did not apply and that on the merits the additional tax could not be imposed.
The High Court held that the necessary foundation for the exercise of the powers under section 35 bad not been laid and therefore the Income tax Officer had no jurisdiction to make the order; and also that the penal interest under section 18A(8) of the Act for failure to make advance deposit was also without jurisdiction.
Held, that the language and scope of section 35 of the Indian Income tax Act, 1922, could not be equated with that of O. 47, r. 1 of the Code of Civil Procedure.
The Income tax Officer could under section 35 of the Act examine the record and if he discovered that a mistake had been made, could rectify the error both of law and fact.
The restrictive operation of the powers of review under 0.
47, r. of the Code of Civil Procedure was not applicable in the case of section 35 of the Income tax Act.
Held, further, that the section 18A(8) was a mandatory one and the Income tax Officer was required to calculate the interest in the manner provided under the provisions of that sub section and had to add it to the assessment.
Maharana Mills (P.) Ltd. vs Income tax Officer, and M. K. Venkatachalam vs Bombay Dyeing & Manu facturing Co. Ltd.; , , discussed.
Commissioner of Income tax vs Elphinstone Spinning & Weaving Mills Co. Ltd. , Commissioner of Income tax, Bombay City vs Jalgaon Electric Supply Co. Ltd., and Commissioner of Income tax, Bombay City vs Khatau Makanji Spng.
& Weavg to.
Ltd., not applicable.
|
Appeals Nos. 481 and 482 of 1966.
Appeals by special leave from the judgment and order, dated April 15, 1963 of the Patna High Court in Misc.
Judicial Cases Nos. 342 and 346 of 1954.
165 S.T. Desai and D.N. Mukherjee, for the appellant (in both the appeals).
Jagadish Swarup, Solicitor General, S.K. Aiyar, R.N. Sachthey and B.D. Sharma, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Shelat, J.
These two appeals, under special leave, arise from two References to the High Court of Patna under section 66(2) of the Income Tax Act, 1922 and relate to the assessment years 1.945 46 and 1947.
In the first appeal, the question arising for determination is whether, on the facts and circumstances of the case, the surplus receipt of Rs. 13,43,469/ , realised as a result of the side of gold, is assessable as income, or profits or gains for the assessment year 1945 46 under section 4(3) (vii) of the Act.
In the 2nd appeal, two questions arise for determination; one relates to the surplus receipt of Rs. 33,481/ arising out of the sale of some more gold, and the second relates to the receipt of Rs. 88,522/ realised by the assessee as a receipt as a result of sale of certain shares.
All the three questions raise the common problem whether the said transactions in gold and shares were by way of realisation of investment or were adventures in the nature of trade or business.
The assessee was at all material times a landholder deriving large income from agriculture, royalties of minerals and income from forests forming part of his estate.
Prior to 1937, when he was a minor, his estate was under the management of a Court of Wards.
On attaining majority, the estate, which included Government securities of the value of about Rs. 40 lacs, was handed over to him on August 19, 1937.
During the account year 1938 39 he sold the whole.
lot of these securities and realised Rs. 44,25,088/ , the sale thus resulting in an excess of Rs. 4,55,305/ .
This excess amount was assessed as profit by the income tax officer for the assessment year 1939 40.
But on appeal against the assessment order, the Appellate Tribunal set side that order on a finding that the said sale was by way of a change in investment, and therefore, was not a transaction in the nature of trade or business.
On March 23, 1939, the assessee opened an account in the Imperial Bank of India initially with Rs. 46 lacs, which included the said sale proceeds of Rs. 44 lacs 'and odd and to which on March 27, 1939 he added Rs. 2.60 lacs.
The account was opened in the name of his wife and was called "Account of Rs. 48 lacs floating in the share market ' ' ' In September 1939, the assessee purchased shares and debentures of the value of Rs. 34.14 lacs from out of the funds in the said account.
He, however, sold certain shares for Rs. 5,75,723/ in October 1939, and then the rest of them in 1940 and 1941 realising Rs. 29,58,677/ and 166 Rs. 64,201/ respectively.
The first sale fetched a proFit of Rs. 1,17,064/ the second a profit of Rs. 25,133 and the third a loss of Rs. 1,642/ .
The income tax officer brought to tax the two surpluses in the assessments for the assessment years 1940 41 and 1941 42.
But the department was again unsuccessful as the Tribunal once again held, on the strength of the correspondence which had passed between the assessee, his bankers axed his brokers in Calcutta, that the only possible conclusion emerging from that correspondence was that the assessee 's intention was not to deal in shares and debentures, and that the said transactions were a mere change in investment carried out of a single scheme of earning a better yield from investments.
The Tribunal 's orders in respect of these assessments for the assessment years 1939 40 to 1941 42 were made part of the Statement of Case filed by the Tribunal be,fore the High Court in the present References.
Between June 28, 1940 and November 9, 1940 the assessee purchased 68,109 tolas of gold for Rs. 28,47,380/ from out of the sale proceeds of the said shares.
The gold so purchased was kept in his family vaults at Padma, the seat of his estate, for nearly 4 years.
Between October 9, 1944 and October 20, 1944, he disposed of the bulk of the gold, i.e. 55,494 tolas, for Rs. 36,80,174/ , the sale resulting in a surplus of Rs. 13,43,469/ , which is the subject matter of the first appeal.
The remaining quantity of gold was sold of October 19, 1945, and that sale brought_ him an excess of Rs. 33,481/ , which is part of the subject matter of the second appeal.
In respect of these two surplus amounts, the assessee contended that they were the result of a change in investment and could not be said to be transactions in the nature of trade or business.
His case was that neither the Government securities, nor the shares and debentures purchased out of their sale proceeds, nor the gold were sold and purchased by way of dealing in them, that at no time they became his stock in trade for any business or adventures in the nature of trade or business therein, that the transactions were mere conversions from one investment to another, depending upon the circumstances which prevailed during the respective periods and that the sale of gold in 1944 and 1945 was occasioned partly due to the tide in the second world war turning in favour of the ,allies and partly due (a) to his having to pay Rs. 7 lacs by way of income tax, (b) expenses for the marriage of his younger brother, (c) for payment of Rs. 6 lacs debt to one Gupta and (d) for purchase of Victory Bonds worth Rs. 14 lacs and odd 'at the instance of the Government authorities as contribution of his estate to the war effort.
The Tribunal rejected the case that gold had been sold for the reasons given by the assessee or as a change in investment and 167 held that: (1 ) conversion of shares into gold was not due to any panic resulting from the war, (2) that there was no pressing necessity for the sale of gold as alleged by him, (3) that Victory Bonds were not by way of any war effort since the assessee sold them away within a short time after their purchase, and (4) that he sale proceeds of gold were utilised in purchasing shares for which he borrowed an additional amount of Rs. 5.10 lacs in 1945 46 against gold.
in this view the Tribunal confirmed the I.T.O. 's decision that the two excess amounts were liable to income tax in the two assessment years.
The sale proceeds of gold sold as aforesaid were utilised by the assessee in purchasing 7(325 shares of Karanpura Development Co. Ltd. for Rs. 2,37,267/ during the period from December 8, 1944 to April 20, 1945 and shares of Bokaro Ramgur Co. for Rs. 39,81,663/ purchased in 1945 46.
Part of the sale proceeds were 'also.
utilised in purchasing the said Victory Bonds.
between November 8, 1945 and February 21, 1946, he sold 6950 of the Karanpura shares realising a net surplus of Rs. 88,522/ , which the Income Tax Officer treated as business profit and brought to tax for the assessment year 1946 47.
As the Statement of Case by the Tribunal shows, the Tribunal examined the assessee 's dealings since the time he took over the said estate.
The Tribunal noted that the said shares were purchased from the said Rs. 48 lacs in the Bank reserved ,for that purpose and that they were sold and purchased at very short intervals.
From these facts it held that he must be considered to have launched a scheme in dealing in shares, which conclusion, it thought, was strengthened by the fact of the assessee having borrowed Rs. 5.10 lacs for the said purpose.
The Tribunal further held that the complete picture of the said transactions over a length of time had not 'been before the preceding Tribunal when it passed the earlier orders for the assessment years 1939 40 to 1941 42, and therefore, its conclusions were not applicable to the transactions in question.
It consequently held the assessee to be a dealer in shares.
As regards the gold ,also, the Tribunal confirmed the orders of the I.T.O. rejecting the assessee 's case that the gold was purchased by him owing to the war crisis and sold by him on account of the pressing necessities alleged by him and the change in the war situation then.
By an order dated April 2, 1959, the High Court referred that statement of Case back to the Tribunal under section 66(4) directing it to consider further all the materials before it and file a supplementary Statement of Case as the High Court found the Statement factually incorrect in certain respects.
The Tribunal accordingly sent a supplementary Statement of Case on April 23, 1960.
After setting out the assessees transactions of the sale of Government securities in 1938 39, the purchase of shares from 168 their sale proceeds, their sale in 1939 40 and 1940 41, the purchase of gold 'and its sale, the Tribunal once again rejected the assessee 's claim that those transactions were conversions of one investment to another made for a better return or that the gold was sold in October 1944 for pressing necessities alleged by the assessee.
Regarding the purchase and sale of shares, the Tribunal stated that the assessee purchased shares of the value of Rs. 37 lacs and odd in1945 46, that those were shares of two, concerns only, Bokaro, and Ramgur Co. Ltd. and Karanpura Development Co. Ltd. and that as the latter company 's shares were of the value of Rs. 2,37,267/ only, the 'bulk of the amount of Rs. 37 lacs and odd went into the purchase of the shares of Bokaro: and Ramgur Co. Ltd. The Tribunal noted that the sale of Karanpura shares resulted in a net profit of Rs. 88,522/ , that in respect of the Karanpura shares there was correspondence showing that his brokers had advised him to acquire 51% of the company 's share holding as he desired to obtain control over its management, that for doing so he wanted to obtain founders ' shares (each of which shares carried 3 votes per share), that a compromise was proposed in a suit he had filed as the lessor of the mines leased out to the company, that M/s. Bird & Co., the managing agents of that company, were not willing to.
sell him shares representing the unissued capital of the company on terms proposed by the assessee and that ultimately he failed to obtain majority of shares which only could have enabled him to obtain control over the company 's management.
But the Tribunal found that "the assessee was attempting to obtain control of the company not by purchasing of shares in the market, but by issue of shares by the company in order to settle the dispute between the company and the assesses These negotiations finally failed.
" It finally held that having perused the correspondence and having regard to the circumstances, the purchase of Karanpura shares was not in pursuance of a scheme to obtain control over the company by acquiring 51% of the votes therein.
The High Court, after hearing the: References, held that though the Tribunal had in the earlier assessments held that the assessee 's transactions in shares, securities and gold did not amount to transactions in the nature of trade or business, and therefore, the assessee could not be treated as a dealer in those articles.
There was no bar to the revenue coming to a different conclusion, though to do so it must have some new materials and facts before it.
It further held that the present Tribunal could a/so arrive at such a conclusion having regard to: (a) the frequency of transactions of purchase and sale of shares, (b) the short interval between purchase and sale of shares, (c) the fact of Rs. 48 lacs in the assessee 's wife 's account having been ear marked for shares transactions, (d) his borrowing Rs. 5.10 lacs 'against gold for purchase 169 of shares, and lastly, the fact that the Tribunal this time had before it a more complete picture of the assessee 's transactions over a length of period which its predecessor had not when it dealt with the assessments for the assessment years 1939 40 to 1941 42.
The High Court further held that there was fresh material, namely, that when the gold was sold, its sale proceeds were again invested in shares and the fact that though Victory Bonds were purchased in January 1945 they were sold after an interval of two months only.
The High Court, in this view, concluded that "the Appellate.
Tribunal, therefore had before it fresh materials for coming to a conclusion contrary to the one come by its predecessors in the previous orders.
" It rejected the assessee 's case: (a) that he had converted one investment into another, i.e. from shares and securities to gold, because of the worsening of the war situation after the fall of France in 1940, (b) that when the war situation improved in 1944 and with that the price of gold began to fail he once again converted his investment from gold to shares, i.e., from an unproductive investment into one which could give him an adequate yield, and (c) that he had sold gold because of pressing necessities.
The first contention was held unsustainable because even after purchasing gold the assessee had retained considerable cash; the second was rejected on the ground that the assessee had sold gold not because of the allied victory in sight but because he found the gold unprofitabIe by reason of the fall in its price and the third was rejected as the assessee had failed to make_good the pressing necessities alleged ' by him.
The High Court further held that the findings given by the Appellate Tribunal were all findings of fact and as they could not be said to have been arrived at without any evidence they could not be interfered with in a Reference under section 66(2), and answered the questions as to the two surplus amounts of Rs. 13 lacs and odd and Rs. 33 thousand 'and odd as liable to assessment.
In regard to the excess of Rs. 88,522/_ resulting from the sale of ' Karanpura shares, the High Court agreed with the Tribunal that that amount also was rightly brought to tax.
It held that the finding of the Tribunal that the purchase of these shares was not in pursuance of a scheme to obtain control in the company and that the assessee 's scheme for that purpose was to acquire shares representing the unissued capital of the company was one of fact with which also it had no jurisdiction to interfere.
Counsel for the appellant disputed the correctness of the High Court 's judgment and contended: (1 ) that it was in error in declining to go into the correctness of the findings of the Tribunal by merely stating that they were findings of fact, (2) that the question whether a particular item was a trading profit or capital accretion depended on the intention on the part of the assessee at the time of the transaction in question and which had Sup CI/70 12 170 to be arrived at by an inference from established facts and was, therefore, a mixed question of fact and law, (3) that on the facts and circumstances, the Tribunal, and following it the High Court, was in error in treating the gold and the Karanpura shares as the stock in trade of the assessee for his alleged trading activities, (4) that the onus of proving that the activities of the assessee amounted to activities in the nature of trade or business was on the department and particularly so,, as the Tribunal in the earlier assessments had come to a contrary conclusion, and (5) that the facts and circumstances as accepted by the Tribunal in its Statement of Case showed that the purchases of gold and share were made without any intention at that time to resell them at profit, and that therefore, the subsequent sales thereof would not stamp those transactions with the character of trade or business in them.
Since these appeals arise out of References under section 66(2), we cannot exercise any wider power of interference than that permitted to the High Court under the Act.
That was not disputed by Mr. Desai.
But in support of his contention that this was a case ' where the High Court could and should have interfered with the Tribunal 's findings he cited a number of decisions.
It is not necessary to go into all these decisions as the principles on which such interference can be made and the scope of power under section 66 to do so are by now well established.
That the question, whether an assessee carries on business or whether certain transactions are in the course of business or whether they amount to adventures in the nature of trade or business, is a mixed question of fact and law is well settled.
The decision in Venkataswami Naidu & Co. vs
T.(1) is an instance in point where this Court observed that the expression 'adventure in the nature of trade ' appearing in the definition of 'business ' implies the existence of certain elements in the .adventure which in law would invest it with the character of trade and that renders the question whether a transaction 'is in the nature of trade a mixed question of law and fact and the High Court in such a case would interfere if the Tribunal had misdirected itself in law of 'also Liquidators of Pursa Ltd. rs.
C.I.T.)(2).
But to distinguish a question of fact and a question of law is not always easy, for, sometimes there is a common area between the two and though a mere question of fact can be turned into one of law, care should be taken against a finding of a mixed question of fact and law being given the unassailability which the Act confers on a pure finding of fact.
The case of Sree Menakshi Mills Ltd. vs
T.(3) holds that where an ultimate finding on an issue is an inference to be drawn from facts found, on application of a principle of law, there is a mixed question of law and fact and such an inference in such a (1) at 603 to 604.
(2) (3) 171 case is a question of law open to review by the court.
On the other hand, when the final determination of the issue does not involve any application of a principle of law, an inference is a pure inference of fact drawn from the other basic facts.
Such an inference can be attacked only if there is no evidence to support it, or, if it is perverse.
Since the expression 'adventure in the nature of trade ' implies the existence of certain elements in the transactions which in law would invest them with the character of trade or business and the question on that account becomes a mixed question of law and fact, the Court can review the Tribunal 's finding if it has misdirected itself in law.
It is fairly clear that where a person in selling his investment realises an enhanced price, the excess over his purchase price is not profit assessable to tax But it would be so, if what is done is not a mere realisation of the investment but an act done for making profits.
The distinction between the two types of transactions is not always easy to make The distinction whether the transaction is of one kind or the other depends on the question whether the excess was an enhancement of the value by realising a security or a gain in an operation of profit making.
If the transaction is in the ordinary line of the 'assessee 's business there would hardly be any difficulty in concluding that it was a trading transaction, but where it is not, the facts must be properly assessed to discover whether it was in the nature of trade.
The surplus realised on the sale of shares, for instance, would be capital if the assessee is an ordinary investor realising his holding; but it would be revenue, if he deals with them as an adventure in the nature of trade.
The fact that the original purchase was made with the intention to resell if an enhanced price could be obtained is by itself not enough but in conjunction with the conduct of the assessee and other circumstances it may point to the trading character of the transaction.
For instance, an 'assessee may invest his capital in shares with the intention to resell them if in future their sale may bring in higher price.
Such an investment, though motivated by a possibilty of enhanced value, does not render the investment a transaction in the nature of trade.
The test often applied is, has the assessee made his shares and securities the stock in trade of a business.
Though the assessee was at the material time a landholder of a large estate, that fact by itself would not mean that his transactions in shares, securities and bullion cannot be transactions in the nature of trade.
They had, therefore, to be examined in the light of all the facts and circumstances to ascertain whether they had been entered into in pursuit of a trading activity.
The first relevant ,fact iS that the assessees occupation was that of a landholder, having, on attaining majority, a considerable amount of money available for raising income therefrom.
The transactions 172 in question were obviously not in the line of any business or trade carried on by him.
Since the Tribunal came to a conclusion as regards the nature of the assessee 's transactions different from that arrived at earlier, it would be useful to tabulate them at one place.
So tabulated, they are as follows: (1) Sale of Government securities in 1938 39 which realised Rs. 44.25 lacs; (2) Opening of an account with this and certain other amounts totaling Rs. 48 lacs in the Imperial Bank; (3) Purchase out of these funds, shares and debentures of the value of Rs. 34.14 lacs in September 1939; (4) Sale in October 1939, i.e., within a month, of some of these shares bringing him Rs. 5.75 lacs; (5) Sale of the bulk of the shares in 1940 bringing in Rs. 29.58 lacs; (6) Sale of the remaining shares in 1941 resulting in a small deficit; (7) Purchase of 68,109 tolas of gold in June 1940 for Rs. 28.47 lacs; (8) Sale of the bulk of the gold, i.e., 55,495 tolas in October 1944 resulting in a surplus of Rs. 13 lacs and odd; (9) Sale of the remaining gold in October 1945 resulting in a surplus cf Rs. 33,481/ ; (10) Purchase of Karanpura shares between December 1944 and April 1945 of the value of Rs. 2,37,267/ ; (11 ) Purchase of Victory Bonds in January 1945 of Rs. 14 lacs, and sale thereof in March 1945; (12) Borrowing Rs. 5.10 lacs against gold in 1945 46; (13) Purchase of Bokaro Ramgur shares in 1945 46 for Rs. 39.81 lacs and (14) Sale of Karanpura shares in 1945 46 bringing in a surplus of Rs. 88,000 and odd.
As already stated, though these transactions were not in the line of any trade of business carried on by the assessee, nonetheless, if they possess the characteristics of adventures in the nature of trade, the profits resulting therefrom would be liable to tax.
But in an enquiry on the question whether these transactions were in the nature of trade or business, it would not be altogether irrelevant 173 to notice that in 1938 39, when the assessee sold the Government securities, he sold the entire lot and invested the bulk of their sale proceeds in shares and debentures, i.e., as much as Rs. 34 lacs.
The same features is present also in his purchase of gold in 1940 and its disposal in 1944 and 1945 using its sale proceeds in buying shares, which, it must be remembered, were of two companies only.
The transactions thus are not diversified nor are gradual according to the opportunities offered by fluctuating market prices, but are in bulk and almost at a time, which ordinarily are not the characteristics of the dealings of a person carrying on trade or business in them.
Thus, in 1938 39 all Government securities were sold and the bulk of their sale proceeds, i.e. Rs. 34 lacs and odd, used in the purchase of shares.
The same was the case when gold was bought 'and sold.
Furthermore, when a person trades in shares and debentures, he does not ordinarily buy shares of two companies only, except when a particular script has the possibility of giving an unusual or a certain profit.
There was nothing on record to show, nor did the Tribunal find, that that was the case with the shares of either of the two companies whose shares the assessee purchased in such large quantity.
Prima facie these transactions would appear in the nature of investments and their conversion into what the assessee believed to be better investments as the circumstances changed from time to time.
In support of his contention that these transactions were not in the nature of trade or business, the assessee had relied on the correspondence between him on the one hand and his bankers and brokers on the other, which had satisfied the Tribunal previously with reference to the assessment years 1939 40 to 1941 42.
That correspondence lends support to the assessee 's case inasmuch as he had there in clearly instructed his brokers to invest the sale proceeds of the said Government securities in such a way as to give him an annual yield of net 7%.
There can be no doubt that Government securities were sold accordingly and shares of certain companies were purchased from their sale proceeds in accordance with the advice of his brokers and bankers.
When it was found that certain shares so purchased were not Likely to yield the percentage he desired, they were sold within hardly a month from their purchase.
The circumstances in which these transactions were brought 'about, would disclose, as was held by the previous Tribunal in the case of the earlier assessments, that the assessee 's intention then was to change his investments from Government securities into shares and debentures which, he was advised, would procure him a better yield.
This conclusion is consistent with his sale of the entire lot of Government securities 'at 'a time, his going in for shares with their sale proceeds and the sale in October 1939 of certain shares which were found incapable of giving the return he desired.
174 Since the present Tribunal had the advantage of examining the assessee 's transactions during the whole of the period, i.e., right from 1938 39 to 1944 45 and thus have a more comprehensive picture of all the transactions, there would be no bar to its coming to a conclusion different from that arrived at in the earlier years, if the acts and conduct of the assessee taken as a whole throughout the period pointed to ,a different conclusion as both the Tribunal and the High Court have said.
But the only new materials pointed out by the Tribunal from which a different conclusion could be arrived at were (1) the sale of gold in 1944 and 1945, (2) the purchase of the said shares from its sale proceeds, and (3) the sale of Karanpura shares.
The question, therefore, the Tribunal had before it was, whether when the assessee purchased the gold he did so with the intention to deal in it.
The Tribunal held, and the High Court concurred with it, that the assessee 's transactions showed that they were in the nature of trading transactions.
Two facts, however, throw considerable doubt on the validity of that conclusion and neither the Tribunal nor the High Court seems to have weighed them with the consideration which they demand.
The first fact is that in 1940 he converted his entire share holding into gold, a fact consistent with his case that he did so because of the nervousness engendered by the breaking out of the Second World War, the initial German victories and the fall of France.
The Tribunal did not countenance this case for it thought that if that was so, the assessee would have invested the other cash lying with him also in gold, and secondly because according to it the war panic started in 1942 and not in 1940.
We do not think that this was an accurate 'approach.
The fact that the assessee did not invest all his cash cannot mean, as the Tribunal thought, that his case about the purchase of gold was not correct.
The war had commenced in 1939 and it is a notorious fact that in 1940 the fortunes of the allies were none too bright.
The fact was that the assessee sold his entire share holding and applied their sale proceeds and also a further amount of Rs. 13 lacs and odd obtained ,from his lessees, M/s Anderson Wright & Co., into.
The second fact, whose significance does not also seem to have been adequately apprehended, was that the assessee, who started with the plan of getting at least net 7% yield, put a very Large part of his funds into gold, an altogether sterile security, and retained that gold in his family vaults ,for nearly 4 years.
The Tribunal had before it the gold prices current during the years 1940 to 1944.
These indicate that the gold price remain steady at Rs. 42 per tola all throughout 1940.
There was, however, an upward trend noticeable from about the end of 1941 which went up to Rs. 65 towards the end of 1942.
By the middle of 1943 the gold price had risen to Rs. 90 and even more.
In October 1944, when the assessee sold 175 a large bulk of his gold holding the price was at Rs. 68 per tolaIf the idea of the assessee in purchasing the gold was to trade in it, he would not have waited for 4 years without disposing of a particle of it.
The price was on the upward trend in 1941 and reached the climax in 1943 when he could have sold the gold and made considerable gain.
The fact that he did not do so and waited until October 1944 the war fortunes were turning in favour of ' the allies, that confidence had gradually been regained by trading circles and that that was why he thought that it was no longer necessary for him to retain the ,gold any further and could safely invest his money in income bearing securties.
The further fact that he sold practically the whole of his stock of gold in October 1944 instead of selling it bit by bit when the price was rising since about the end of 1942 is inconsistent with the hypothesis that the object with which the gold was purchased was to trade in it.
Regarding share transactions, we think that the Tribunal placed undue emphasis on the fact that when he opened the bank account in March 1939 with the sale proceeds of Government securities, he did so, firstly, in the name of his wife 'and, secondly, called that account as one of "Rs. 48 lacs floating in the share ' market".
The first had no particular significance and the second properly viewed only meant that he wanted to set apart this fund for transactions in shares and securities and not mix up his other capital and the income arising from his estate.
The name he gave ' to this account cannot for that reason only render his dealing with that account into trading transactions if otherwise, they were not.
Similarly, the Tribunal was unduly impressed by the fact that he sold away the Victory Bonds within about two months from their purchase.
The correspondence produced by the assessee clearly shows that he had bought those Bonds at the pressure of the then Commissioner.
The Bonds were not likely to fetch him the yield he desired.
His purchase of them had thus served the purpose, viz., his showing to the authorities that his estate had made a war contribution.
The sale by him of those Bonds would not affect the Government or its war effort.
The fact that he sold ' them soon after the purchase would not invest it with the stamp of ' trade or business in Victory Bonds.
As regards the Karanpura shares, the correspondence between him and the company and the advice he had from his brokers referred to in the Statement of Case show that the assessee did at one time entertain the idea of obtaining control over the company 's management by procuring 51% of its total shares.
He could do so by purchasing shares in the open market and also, by other means.
He purchased 7,025 shares in the market but that ,was clearly not enough.
There was at that time litigation going on_ 176 between him and the company and he seems to have hit upon the idea that he would compromise his suit if the managing agents of the company were to sell him shares representing its unissued capital at prices offered by him.
The object of his offer was that he would not have to pay the market price of the shares which was 3 times more than the one offered 'by him.
The company did not agree and his move for compromise ,failed.
According to him, there was, therefore, no useful purpose for retaining those shares and he sold 6,950 shares leaving only 75 shares with him.
On these facts the Tribunal was not right in concluding that the shares which the assessee purchased from the market were not for the purpose of acquiring the major share holding in the company and that the control over the company was to be obtained only by purchasing shares representing the unissued capital.
Both the purchase of shares and the move to obtain shares representing the unissued capital were part of the same design and if the latter 'failed, his purchase of 7,025 shares would obviously not bring him nearer his object.
Furthermore, the bulk of the sale proceeds of gold went into the purchase of Bokaro.
Ramgur shares which remained with him till the assessment years in question.
The profits made on the sale of shares, acquired with the intention of obtaining control over the company 's management and not for dealing in them, would be on the capital and not revenue account.
(see Kishan Prasad & Co. Ltd.
C.I.T.(1) and C.I.T. vs National Finance Ltd. (2).
The Statement of Case itself set out facts which were consistent with the assessee 's case.
In our view the Tribunal misdirected itself in applying the law to the facts ,found by it both in the matter of gold and shares, and the High Court would have been entitled to interfere with its findings instead of holding that it could not do so as the findings were findings of fact.
The questions involved being mixed questions of fact and law, the hypothesis on which the High Court acted that the findings were purely findings of fact and therefore 'were unassailable was in our view not correct.
The appeals, therefore, will have to be allowed and the answers given by the High Court set aside.
We hold that the two questions referred to the High Court should have been answered in assessee 's favour and we do s0 accordingly.
The respondent will pay to the appellant costs of these appeals but only one hearing fee.
(3.C. Appeal allowed.
| The assessee inherited a vast estate consisting of agricultural and other land as also Government securities worth Rs. 40 lacs.
In 1937 he attained majority and control of the estate from the Court of Wards.
In the accounting year 1938 39 he sold some of these securities at a profit.
Thereafter he opened an account in the Imperial Bank of India in the name of his wife and called it "account of 48 lacs floating in the share market.
" In September 1939 he purchased shares worth Rs. 34.14 lacs out of the said fund but sold them, again at a profit in the Years 1939 ', 1940 ' and 1941.
The profits on the said sales of shares were subjected to tax by the Income tax Officer in the years 1939 40, 1940 41 and 1941 42.
The Tribunal however held that the asessee was not a dealer in shares anti ' held the profits not to be taxable.
Between June.
and November 1940 the assessee purchased gold for Rs. 28.47,380/ from out of the sale proceeds of the aforesaid shares.
This gold was sold 'at a profit in the accounting periods relevant t0 the 1945 46 and 1946 47 assessment years.
With the sale proceeds certain shares including 7,025 shares of Karanpura Development Co. Ltd. were purchased, most of which were sold at a profit.
Certain Victory Bonds were purchased and resold within two months.
The Income tax Officer subjected the profits from the sales of gold and Karanpur shares to tax in the assessment years 1945 46 and 1946 47.
The Tribunal on ,considering the whole pattern of transactions from 1938 onwards came to the conclusion that the said ' profits were rightly taxed.
The High Court upheld the view of the Tribunal holding inter alia, that the findings were of fact and not arrived at without evidence so that no interference was warranted in reference proceedings.
The assessee appealed.
HELD: (1) When a transaction is not in the ordinary lines of an assessee 's business the facts must be properly assessed to discover whether it was in the nature of trade.
The test often applied ' is has the assessee made his shares and securities the stock in trade of a business ? [171 G; 172 H] (ii) Since in the present case the Tribunal had the advantage of examining the assessee 's transactions during the whole period i.e. right from 1938 39 to 1944 45 and thus had more comprehensive picture of all the transactions, there would be no bar to its coming to a conclusion different from that arrived at in the earlier years.
if the acts and conduct of the assessee taken as a whole throughout the period pointed to a different conclusion.
[174 A B] (iii) On the facts and circumstances of the case, however the finding of the Tribunal, concurred in by the High Court, that the transactions in question were in the nature of trading transactions, was not justified.
[174 C D] 164 (a) It is a notorious fact that in 1940 the fortunes of the allies were none too bright.
The conversion by the assessee of his entire share holding into gold in that year was consistent with his case that he did so because of the nervousness engendered by the breaking out of the war, the initial German victories, and the fall of France.
The fact that the assessee did not invest all his cash would not mean, 'as the Tribunal thought, that his case about the purchases of go1d was not correct.
[174 D F] The Tribunal also failed to give due significance.
to the fact that the assessee who started with the plan of getting 'at least net 7% yield, put a very large part of his funds into gold, an altogether sterile security, and retained it for 4 years.
The price of gold began to rise in 1941 and was at its peak in 1943.
The fact that the assessee did not sell his gold then but only in October 1944 when the price had fallen showed that it was only after the: fortunes of war had turned in favour of the allies and confidence restored that he felt it safe to invest his money in income beating securities.
The further fact that he sold practically the whole of his stock of gold in October 1944 instead of reselling it bit by bit after the price was rising since 1942 was inconsistent with the hypothesis that the object with which the go1d was purchased was to trade in it.
[174 G H; 175 A D] (b) The fact that the account in the Imperial Bank opened in 1939 was called "Rs. 48 lacs floating in the share market" was given undue significance by the Tribunal.
Properly viewed it only meant that the assessee wanted to set apart this fund for transactions in shares and securities and not mix up his other capital and the income arising from his estate.
[175 D E] (c) The sale of the.
Victory Bonds within two months of their purchase would not invest the transaction with the stamp of trade or business they were only purchased to show to the authorities that his estate had made a contribution to the war effort.
[175] (d) The Karanpur shares were purchased by the assessee with a view to getting control over the company 's management by procuring 51% of its total shares.
When that plan failed he sold these shares.
In these circumstances the transaction could not be considered to be on revenue account.
[175 G H; 176 D] Kishan Prasad & Co. Ltd.
C.I.T., and C.I.T.v.
National Finance Ltd. , 'applied.
(e) The expression 'adventure in the nature of trade ' implies the existence of certain elements in the transactions which in law would invest them with the character of trade or business.
The question therefore whether a particular transaction is an adventure.
in the nature of trade is a mixed question of law and fact and the court can review the Tribunal 's finding thereon.
Therefore in the present case the High Court was wrong in treating the Tribunal 's decision as a finding of fact and refusing to interfere on that ground.
[171 A C] Venkataswami Naidu & Co.
C.I.T., , 603, 604 and Liquidators of Pursa Ltd. vs
C.I.T., , referred to.
|
Appeal No. 1718 of 1984.
From the Order dated 17.11.83 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED (SB) (T) 338/78 D (Order No. 698/83 D).
A.K. Ganguli, B. Sen, A.K. Chitale, B.R.L. Iyengar J. Ramamurti, Mrs. Radha Rangaswami, P. Parmeswaran, C.V. Subba Rao, C. Ramesh, Virender Kaushal, Praveen Kumar, Vivek Gambhir, S.K. Gambhir, P.H. Parekh, B.N. Agarwal, A.V. Phadnis, Kh.
Nobin Singh, M. Veerappa, Ashok Sagar, Ravinder Narain, D.N. Misra (For JBD & Co.,) E.C. Vidyasagar for L.R. Singh, R. Vaigai and R.K. Maheshwari for the appearing parties.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
With a view to induce the Sugar Factories in the country to produce more and also to commence their operations early in the year, the Government of India have been issuing notifications, from time to time, providing for rebate in the Excise Duty in certain circumstances.
These notifications were issued by the Central Government 763 in exercise of the power conferred by Sub Rule (1) of Rule 8 of the Central Excise Rules, 1944.
We are concerned in these appeals with four such notifications namely (1) the Notification dated 28.9.72 (applicable to the Sugar Year 1972 73), (2) Notification dated 4.10.73 (applicable to the Sugar Year 1973 74), (3) Notification dated 12.10.74 (applicable to the Sugar Year 1974 75) and (4) the Notification dated 30.9.76 (applicable to the Sugar Year 1976 77). 'Sugar year ' means the year commencing on and with 1st October and ending with the 30th of September of the following year.
The interpretation of these notifications is involved in this batch of appeals.
In so far as it is material, the notification dated 28.9.72 and the notification dated 4.10.73 are similar.
So are the notifications dated 12.10.74 and 30.9.76.
It would be appropriate if we set out the notification dated 28.9.72 in its entirety "Notification No. 203172 dated 28.9.1972 In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts sugar, described in column(2) of the Table below and failing under sub item (1) of Item No.1 of the First Schedule to the (1 of 1944), from so much of the duty of excise leviable thereon as is specified in the corresponding entry in column (3) of the said Table.
TABLE section No. Description of Sugar Duty of Excise (1) (2) (3) 1.
Sugar produced in a factory during the Rupees period commencing from the 1st day of forty per October, 1972 and ending with the 30th quintal day of November, 1972 which is in excess of the quantity of sugar produced during the corresponding period in 1971.
764 2.Sugar produced in a factory during the period commencing from the 1st day of December, 1972 and ending with the 30th day of April, 1973 Rupees which is in excess of 115% of the quantity twenty of suggar produced during the period commencing per from the 1st day of Decmber, 1971 and ending with quintal the 30th day of April, 1972.
3.Sugar produced in a factory during the period commencing from the 1st day of May, 1973 and Rupees ending with 30th day of June, 1973 which is in twenty excess of the quantity of sugar produced per during the corresponding period in 1972.
quintal 4.Sugar produced in factory during the period commencing from the 1st day of July 1973 and ending with the 30th day of September, 1973 Rupees which is in excess of the quantity of sugar twenty produced during the corresponding period in 1972.
per quintal Provided that the exemption under this notification shall not be admissible to a factory (a) which did not work during the base period, or (b) which had only a trial run in the base period, or (c) which commences production for the first time on or after the 1st day of October, 1972 : Provided further that in computing the production of sugar during the periods mentioned in column (2) of the said Table, (a) the data, as furnished in Form R.G. 1 prescribed in Appendix I to the Central Excise Rules, 1944, or in such other record as the Collector may prescribed under rule 53 or rule 173G of the said rules, shall be adopted : 765 (b) any sugar obtained from reprocessing of sugarhouse products left over in process at that end of the base period or earlier shall b e taken into account ; and (c) any sugar obtained by refining gur or Khandasari sugar, or any sugar obtained by reprocessing of defective or damaged sugar or brown sugar, if the same has already been included in the quantity of sugar produced, shall not be taken into account.
Explanation I A factory shall be deemed to have had a trial run during the base period only if, on first going into production, the period during which actual crushing was done during the base period was less than 40 per cent of the average duration of the season in the State in which the factory is situated.
Explanation 11 In this notification, the expression, 'base period ', means the period commencing from the 1st day of October, 1971 and ending with the 30th day of September, 1972.
" Though the Sugar Year extends over a period of twelve months commencing from 1st of October, the period commencing with 1st December and ending with 30th April is said to be the peak production period.
Most of the sugar factories were commencing their operations only in the month of December.
Either with a view to induce these sugar factories to produce more or with a view to induce them to commence their operation early in the sugar year, the rebate provided for producing sugar in the months of October and November in excess of the corresponding period in the previous sugar year was kept relatively high.
The scheme of the notification dated 28.9.72 appears to be this (1) If during the months of October and November 1972 (in the Sugar Year 1972 73), a factory produced sugar in excess of the quantity of sugar produced by it during the months of October November 1971, such factory was granted rebate in the Excise Duty at the rate of rupees forty per quintal in so far as the excess production is concerned.
(2) Rebate for the period 1st December 1972 to 30th April, 1973 was 766 available at the rate of rupees twenty per quintal provided the production of sugar during the said period was in excess of 115% of the quantity of sugar produced by the said factory during the corresponding period in the previous Sugar Year, in so far as the excess production is concerned.
(3) For the months of May and June 1973 rebate at the rate of rupees twenty per quintal was available provided the factory produced more sugar than it produced during the corresponding months in the previous Sugar Year.
The said rebate was available again only with respect to the excess production.
(4) For the period commencing from 1st July, 1973 and ending with 30th of September, 1973, rebate was available at the rate of rupees twenty per quintal provided the factory produced sugar in excess of the quantity produced during the corresponding period in the previous Sugar Year.
This rebate too was confined to the excess production.
However, the benefit of the rebate mentioned in any of the clauses aforesaid was not available to a factory which inter alia did not work during the 'base period '.
The expression 'base period ' was defined in Explanation 11.
It meant the period commencing from the 1st day of october 1971 and ending with the 30th day of September, 1972 (Previous Sugar Year).
The sugar factories (concerned with the sugar year 1972 73) did not produce any sugar in one or the other of the four blocks (mentioned in the table contained in the Notification) in the base year (previous sugar year).
During the current sugar year, however, they produced certain quantity of sugar during that block period.
To be more precise, take factory A.
It produced 1000 quintals of sugar in the months of October November, 1972 (Block period (1) but had not produced any sugar whatsoever in the corresponding period (October November, ' 1971) in the base year.
The question arose whether in such a situation, Factory A was entitled to the benefit of rebate provided in Clause (1) of the Table contained in the aforesaid notification with respect to the said 1,000 quintals ? The contention of the factory was that it was so entitled, whereas according to the Revenue, it was not.
It is brought to our notice that even before the controversy actually arose between the parties, the Committee of the Sugar Mill Owners ' Association addressed a letter to the Ministry of Finance, Government of 767 India seeking a clarification as to the meaning and purport of the aforesaid notification.
The letter written by the Committee read as follows "I am to refer to the Notification No. G.S.R. dated 28th September, 1972, issued by the Union Ministry of Finance (Department of Revenue & Insurance), New Delhi, on the above subject (copy enclosed for ready reference).
In this connection, the Government had issued a similar Notification on 13th Oct. 1971, on the same subject.
On this Notification, in response to an enquiry made by the Committee of the Association, the Board had clarified as per their letter No. F. No.14/33 71/CX. 1 dated 26th November, 1971, that a factory which had worked during the base period i.e. during the period commencing from 1st day of October, 1970 and ending with 30th day of September, 1971, though it had not worked during the period from 1st October, 1970 to 30th November, 1970, and the production during this period was nil, would be entitled to the excise rebate at the notified rate on its entire production achieved during the month of October and November, 1971.
As th e Notification issued this year is also on similar lines, the Committee presume that the clarification given by the Board last year will apply to the Notification issued this year also, i.e., where a factory has worked in the base period (1st October, 1971 to 30th September, 1972) it will be entitled to the full rebate on its entire production during the various periods mentioned in the Notification, although during the corresponding periods in the last season, the production may be nil.
The Committee shall be glad if you kindly confirm whether their above presumption is correct.
Thanking you for a line in reply '.
In this letter dated 1st November, 1972 the Ministry of Finance intimated the Committee that the presumption made by the Committee is confirmed in respect of the established factories only.
Later on, however, the Government of India revised their opinion which has led to the present controversy.
768 It is brought to our notice that the sugar factories are governed by and follow the procedure prescribed by Rule 173 G of the Central Excise Rules, which rule occurs in Chapter VII A 'Removal of Excisable Goods on Determination of Duty by producers, Manufacturers or Private WareHouse Licencees.
" Rule 173 G requires every assessee to keep an accountcurrent with the Collector separately for each excisable goods, in the suc form and manner, as the Collector may require.
The rule requires the assessee to make credit periodically in such account current, by cash payment into the treasury, so as to keep the balance in such account cumrent sufrent to cover the duties due on the goods intended to be removed at any time.
Every such assessee has to pay the duty determined for each consignment by debit to such account current before removal of goods.
The Rules further require every assessee to furnish a monthly return in the prescribed form, on the basis of which, assessment is completed by the appropriate officer.
Coming back to the facts of these appeals, the claim for rebate made by these factories was allowed in the first instance but later proceedings were initiated to recover back, or re adjust, as the case may be, the benefit already allowed.
This was the phenomenon all over the country.
These disputes were carried to High Courts.
The main dispute was the same as indicated hereinabove.
The factory has produced a certain quantity of sugar in block period (i) (or, for, that matter, any other block period) in the sugar year 1972 73, but had not produced any sugar whatsoever in the corresponding period in the base year (previous sugar year) but has produced some quantity of sugar during the base year as such; whether such factory is entitled to the rebate prescribed in clause (i) (or such other clause, as may be applicable) of the said Notification ? Since the Notifications for 1972 73 and 1973 74 are more or less similar, disputes raised before High Courts pertained to both these years.
(Indeed, the said issue is common to the other two notifications concerned herein as well, with some difference, as we shall indicate at the proper stage).
It appears that almost all the High Courts except Karnataka have held in favour of the factories.
In Patna High Court, there appears to be a conflict of opinion.
Karnataka High Court has, however, held in favour of the Union of India.
The first of the reported decisions is of the Andhra Pradesh High Court (Chinnappa Reddy, J., as he then was) in Etikoppaka Co operative 769 Agricultural Society vs Union of Inida, The reasoning in the said Judgment has been followed by most of the other High Courts.
See ; 1982 (59) E.L.T. 409 (AHahabad) ; & Haryana); and Shri Ganguli, learned counsel for the Union of India contends as follows : Language of the Notifications (pertaining to the year 1972 73 and 1973 74) is quite clear and unambiguous.
The benefit of rebate is available only where the "sugar produced in a factory during the period commencing from the 1st day of October, 1972 and ending with the 30th day of November, 1972 which is in excess of the quantity of sugar produced during the corresponding period in 1971" to take clause (i) of the Notification relating to 1972 73.
The clause contemplates and is based on the premise that sugar is produced during October November, 1972 as well as October November, 1971.
If no sugar was produced during the corresponding period in the previous sugar year (October November, 1971), the very clause is inapplicable.
The contention of the factory owners, which has no doubt been accepted by a majority of High Court, does voilence to the plain language of the clause.
The interpretation placed by the factoryowners leads to certain absurd consequences.
Learned counsel gave more than one illustration to emphasise his submission.
Take a. case where a factory has produced one thousand quintals of sugars in October November 1971 and has also produced one thousand quintals in October November 1972.
In such a situation the factory would not get any rebate in terms of the notification dated 28.9.72, whereas another factory which may not have produced any sugar whatsoever in October November 1971 but has produced one thousand quintals of sugar in October November 1972, gets the rebate at the rate of rupees forty per quintal.
This would really amount to, says the counsel, punishing the first factory more efficient factory for producing the sugar in the previous year And to rewarding the second one the indolent factory which did not produce any sugar during OctoberNovember, 1971.
Another illustration given by the learned counsel is this; a factory had produced five thousand quintals of sugar during the period 1st December, 1971 to 30th April, 1972; it produces the very some quantity again during the period 1st December 1972 to 30th April, 1973; such a factory would not be entitled to any rebate under clause (2) of the said notification; but another factory which had produced, say, just 1000 quintals during the period December 1, 1971 to April 30, 1972 but produces 770 five thousand quintals during the period December 1, 1972 to April 30, 1973 would get the benefit of rebate on 4000 quintals.
This again amounts to, says the counsel, rewarding the inefficient and indolent and punishing the efficient.
The learned counsel seeks to reinforce his argument by referring to clause (2).
It relates to the period 1st December 1972 to 30th April 1973.
Rebate in the sugar produced during this period is available only if it is in excess of 115 per cent of the quantity of sugar produced during the period December 1, 1971 to April 30, 1972.
If the production is nil during the corresponding period in the previous sugar year, asks the counsel, how is one to work out 115% of it.
What is 115% of zero ? asks he.
For all these reasons counsel says, nil production cannot be equated to "the quantity of sugar produced. . in clause (1).
Counsel also says that Clause (1) of the first Proviso in the said notification should be harmonised with the several clauses mentioned in the Table and that no interpretation should be adopted which renders any part of the said notification superfluous.
We find ourselves unable to agree with the learned counsel for the Union of India.
While we agree that the several clauses in the Notification must be read together, harmonised and reasonably understood, we cannot also ignore the underlying object and purpose of the notification.
We Also agree that an interpretation which leads to absurd consequences should be avoided.
Even so, we are afraid, we cannot agree with the learned counsel.
The object behind the notification was evidently not only to induce the factories to produce more sugar but also to induce them to start their production early in the sugar year.
The object appears to be also to induce the factories to keep on producing the sugar all the year round, which they may perhaps not have done otherwise.
Running the factories during the off season (we are told, off season means October November period and then again the period from May June to September), may have its own problems which may increase the cost of production.
Be that as it may, the main issue is whether the words " the quantity of sugar produced during the corresponding period. . do not take in the case of a factory which has not produced any sugar whatsoever during the relevant corresponding period ? On a consideration of the rival points of view, we are of the opinion that it does take in.
Holding otherwise would have this absurd consequence : a factory which has produced, say, just one quintal of sugar during the relevant corresponding period and has produced 1000 quintals during October November, 1972 would qualify for the rebate on 999 quin 771 tals while another factory which has not produced any sugar nil production but has produced 1000 quintals during October November, 1972, would not qualify.
How does this interpretation advance the purpose of the notification, is difficult to appreciate.
Coming to the second illustration given by the learned counsel, we must say that the idea behind the said notification is to induce the manufacturers to produce more in the current sugar year than what they have produced in the previous sugar year or during the previous corresponding period in the previous sugar year, as the case may be.
If this is the object there is nothing absurd in saying that a factory which has produced five thousand tons during December 1, 1971 to April 30, 1972 and produces the.
very same quantity during the period December 1, 1972 to April 30, 1973, does not qualify for rebate under clause (2).
There is no reason or occasion for granting him any rebate.
But where a factory has not produced any sugar or has produced a particular quantity of sugar during the said period in the previous sugar year but produces a larger quantity during the said period in the current sugar year, it must be rewarded.
It may be remembered that no manufacturer produces sugar merely for the sake of rebate.
Rebate is an inducement, an additional attraction.
It is not as if without rebate provided by these notifications, no one would have produced sugar.
We are also unable to see any difficulty in operating clause (2) of the said notification.
There is no arithmetical difficulty in working out 115% of zero; it is zero.
What applies to clause (1) applies equally to clauses (2), (3) and (4).
Our understanding is reinforced and supported by clause (a) of the first proviso.
It says that the benefit of the said rebate would not be available to a factory 'which did not work during the base period.
" Why does it say so? What is its meaning and implication? It is only that the factory need not necessarily have worked during each of the corresponding periods in the base year; it is enough if it has worked in the base year.
We may point out that a majority of the High Courts in the country have adopted the very same interpretation as has been placed by us.
It is then argued by the learned counsel for the appellant that exemption notifications should be strictly concluded.
There is no quarrel with the proposition but there is another equally valid principle that such notifications should be given their due effect, keeping in view the purpose 772 underlying.
We must reiterate that no factory owner would keep his factory idle during a particular period only with a view to produce sugar during the same period in the next sugar year and earn rebate in the next year.
More particularly, it can not reasonably be expected that a factory owner would deliberately keep his factory idle during the peak production period (December to April) only with a view to produce sugar during that period next year and earn rebate in such next year.
It would be unrealistic to say so.
Actually these notifications were being issued every year confined to that year.
They were being issued just on the eve of the sugar year or a few days after the commencement of the sugar year and there were variations in the relevant clauses from year to year.
Construed realistically, we see no room for any absurdity resulting from our interpretation ' The case of October November appears to be rather an exception.
Normally, it appears, no factory owner commenced the production of sugar in these months because of several unfavorable factors.
Indeed, these unfavorable factors appear to be present to a large extent even during the months June to September.
These notifications were evidently meant to compensate the factory owners for producing during these months as well.
As stated already, one must proceed on the assumption that every industrialist and businessman would, ordinarily, like to produce as much more as possible, since, normally speaking, more production means more profits.
For the above reasons, we are of the opinion that the interpretation placed upon the said notifications by the majority of the High Courts is the correct one.
We do not agree with the view taken by the Karnataka High Court in its Judgment under appeal in Civil Appeal Nos. 3831 32 of 1988.
For the same reason, we do not also agree with the view taken by the Patna High Court in Civil Writ Jurisdiction Case No. 865 of 1966.
Now coming to the Notifications for the years 1974 75 and 1976 77, the concept of base year is not to be found here; otherwise they are similar to those relating to 1972 73 and 1973 74.
In the notification dated 12.10.74 (relating to the sugar year 1974 75) the sugar year is divided into two blocks/periods.
The first block comprises October and November 1974 whereas the second block takes in December 1974 to September 1975.
Here too, the question is identical to that arising in the years 1972 73 and 1973 74.
The answer too will naturally be the same.
773 In view of the aforesaid conclusion, it is not necessary for us to go into the other questions raised by the factory owners except the following: There is a minor controversy with respect to the working of Clause (2) in Notification No. 146/74 dated 12.10.74 relating to the sugar year 1974 75.
Clause (2) the table contained in the notification reads as follows: TABLE No. Description of Sugar Duty of excise 1 2 Free Sale Levy of Sugar Sugar 3 4 1. . . . . 2.
Sugar produced in a factory during the period commencing on the 1st day of December, 1974, and ending with the 30th day of September, 1975 which is in excess of the average production of the corresponding period of the preceding five sugar years, that is, (a) on excess production upto Rs. 20/ per Rs. 5/ per 7.5% quintal quintal (b) on excess production on the Rs. 40/ per Rs. 10/ per next 10% quintal quintal (c) on excess production on the Rs.501 per Rs. 14/ per next 10% quintal quintal (d) on excess production on the Rs.60/ per Rs. 18/ per next 10% quintal quintal (e) on excess production beyond Rs. 82/ per Rs. 22/ per 37.5% quintal quintal ============================================================ Mr. Ganguli, learned counsel for the Union of India says that some of the Courts have applied the percentages mentioned in sub clauses (a) to (e) to the excess production and not to the average production of the preceding five sugar years.
We may take an illustration to explain what the learned counsel says.
Take a case.
where the average production of a factory during the corresponding period (December 1 to September 30) of 774 the preceding five sugar years is 1000 quintals.
That factory produces 2,500 quintals during the period December 1, 1974 to September 30, 1975.
In such a case, the ascending percentages mentioned in sub clauses (a) to (e) of clause (2) have to be applied for working out the rebate.
According to us, it must be done in the following manner, keeping in mind that the basis for these percentages in the average production of the previous five years and not the excess production.
Out of 2,500 quintals produced during the said period in the current sugar year (December 1, 1974 to September 30, 1975), the average of the five previous sugar years i.e., 1000 quintals should be deducted first, which means the excess production during the current year is 1500 quintals.
7.5% of 1000 quintals is 75 quintals.
On this quantity of 75 quintals, the rate of rebate as per sub clause (a) will be Rs. 20 per quintal in the case of free sale sugar and Rs. 5 per quintal in the case of levy sugar.
Next 10% of excess production means 100 quintals which would be eligible for rebate under sub clause (b) at the rate of Rs. 40 per quintal in the case of free sale sugar and Rs. 10 per quintal in the case of levy sugar.
The next 100 quintals would be eligible for rebate under sub clause (c) at the rate of Rs.50 per quintal in the case of free sale sugar and Rs. 14 per quintal in the case of levy sugar.
Then again the next 100 quintals would be eligible for rebate under sub clause (d) at the rate of Rs. 60 per quintal in the case of free sale sugar and Rs. 18 per quintal in the case of levy sugar.
The balance of 1125 quintals would qualify for rebate under sub clause (e) at the rate of Rs. 82 per quintal in the case of free sale sugar and Rs. 22 per quintal in the case of levy sugar.
This is the interpretation and understanding contended for by Shri Ganguli and we must say that none of the counsel for the factory owners ' disputed the same.
It is accordingly directed that the above method shall be followed in working out clause (2) of the notification dated 12.10.74.
Accordingly all the civil appeals except Civil Appeal Nos.
3831 32 of 1988, fail and are dismissed.
Civil Appeals No. 3831 32 of 1988 are allowed.
The authorities will take action in accordance with this judgment.
There will be no order as to costs.
V.P.R. CA Nos. 3831 32/88 allowed.
Rest of the appeals dismissed.
| The prosecution case was that on 23.8.1981 between 12 30 1.00 p.m., on hearing screams and cry of the deceased, aged about 18 years, P.W.2 alongwith her father PW3, and PW4 rushed to the house of the appellant They saw the father of appellant No. 1 (father in law of the deceased) alongwith the husband and mother in law of the deceased hurriedly com ing out of the kitchen while the deceased was lying on the floor engulfed in flames.
As the appellant No. 1, did not respond to the request of PW2 to give her something to extinguish the fire, PW2 requested the father of the appellant No. 1 to give a bed sheet or blanket while the father of the appellant No. 1 was passing on a bed sheet to PW2, the appellant No. 2 (mother in law of the deceased) objected.
In the meanwhile PW2 took the bed sheet from the father of the appellant No. 1 and tried to extinguish the fire.
The deceased asked PW2 for some water.
PW3 removed the burning petticoat from the body of the deceased to save her from further burning.
While doing so he also received some burn injuries.
PW2 poured water into the deceased 's mouth and enquired from her as to what had happened.
667 The deceased told PW2 that her mother in law had poured kerosene over her and her husband had set fire to her.
The deceased asked for more water, which was again given to her by PW2.
The deceased 's statement made to PW2 was overheard by PW3 PW5 and some others who also reached the spot on hearing her cries.
PW5 went away to inform the matenal uncle of the deceased with one Ramakrishna on his motor cycle.
There PW5 found PW1, the brother of the deceased and informed about the burning of the deceased and also what he had heard the deceased telling PW2.
PW1 reached the house of the appellant with Ramakrishna on his motor cycle.
He saw a number of persons including PWs 2 and 3 gathered there.
The deceased was lying on the floor and she had no clothes on her.
PWl noticed that she had received burn injuries from her breasts downwards to her legs.
On seeing her plight, PWl started crying and hitting his head against a piller.
When the deceased noticed PW1 had come, she asked PW2 to bring her brother inside.
PW2 went out and brought PWI to the kitchen.
The deceased took the palm of her brother, PWl into her own palms and told him to tell mother and father that her mother in law poured kerosene on her and her husband set her or fire.
She requested him that he should not fight, "anyhow she was dying." She also told PWl to take back the cash given to her and to divide it amongst her sisters in equal share and to get them married to nice persons.
The appellant No. 1, the husband of the deceased came inside the kitchen with folded hands and begged her for forgiveness saying that he would not repeat what he had done.
PWI got wild and caught hold of the neck of the appellant No. 1.
FIW2 and PW3 rushed towards them and released the appellant No. 1 from the hold of PW1.
They sent PWI to another uncle 's house and told the uncle to take care of PW1.
When PWI returned to the house of the deceased after one hour he saw that PW6, a local Doctor, was giving first aid to the deceased and she was lying on a cot in the verandah.
PW6 advised at about 3.30 p.m. to remove the deceased to the Government Hospital.
The deceased was brought to the hospital at about 5 p.m.
At about 5.30 p.m., PW9, a doctor examined the deceased and declared her dead.
PWl along with his uncle went to the Police Station, adjacent to the hospital and lodged the FIR.
A case under section 302 IPC was registered 668 and police investigation was started.
Both the appellants were not found in the village when search for them was made by the investigating officer.
The appellant No. 1 surrendered in the Court on 10.11.1981 while the appellant No. 2 surrendered in the Court on 7.12.1981.
The Trial Court held that there was no motive for the appellant to commit the crime; that the evidence of PWs 2 to 4 could not be relied upon; that PW1 had made improvements in his statements recorded at the trial and, therefore the oral dying declaration made to him could not be relied upon.
The Trial Court also held that there was unexplained delay in lodging report with the policy.
It acquitted the appellants, holding that the case was one of suicide and not of murder.
The State filed appeal in the High Court.
The High Court held that the chain of the established circumstances was complete and the circumstances were sufficient to establish that the appellants alone had committed the crime of murder of the deceased.
The High Court convicted both the appellants for the offence under section 302/34 IPC and sentenced each one of them to imprisonment for life.
Hence this appeal before this Court under section 2(a) of the .
The appellants contended that since the Trial Court had acquitted the appellants, the High Court was not justified in recording an order or conviction, as the findings recorded by the Trial Court could not be said to be perverse; that the dying declarations were not worthy of reliance and the motive was feeble and not established; that the surrendering of the appellants themselves in the court on 10.11.1981 and 7.12.1981 itself was enough to show that they had no guilty conscious and the prosecution was not justified in relying upon this conduct as an adverse conduct against the appellants; and that since all neighbors had become hostile, out of fear the appellants did not act either to put off the fire or remove the deceased to the hospital.
The respondent State submitted that the findings of the Trial Court were not only conjectural but also perverse and the evidence of the wit 669 nesses was disbelieved on mere surmises; that the Trial Court did,not properly discuss the two dying declarations made by the deceased and since the dying declarations have been proved by reliable evidence, these by themselves could form the basis of conviction of the appellants; that the High Court after a careful appraisal of the evidence had rightly set aside the judgment of the Trial Court which suffered from illegality as well as manifest error and perversity,, and that the prosecution had established the case against the appellants beyond every reasonable doubt and their appeal deserved to be dismissed.
Dismissing the appeal, this Court, HELD:1.01.
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and these circumstances must be conclusive in nature.
Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence.
The proved circumstances must be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence.
The courts have, therefore, the duty to carefully scrutinize the evidence and deal with each circumstance carefully and thereafter find whether the chain of the established circumstances is complete or not before passing an order of conviction.
[679 E F] 1.02.In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning.
The motive in this case is alleged to be the greed of dowry.
[679 H] 1.03.The evidence led by the prosecution to establish, the existence of motive is wholly reliable and is also consistent.
The prosecution has successfully established that the appellants had strong and compelling motive to commit the crime because of her parents not agreeing to get the land registered in the name of the first appellant and their insistence to have the land registered in the name of their own daughter instead.
The motive, has, been conclusively established by the prosecution.
[682 D] 1.04.Both the dying declarations are oral.
They have been made to friends and to the brother of the deceased respectively.
In view of the close relationship of the witnesses to whom the oral dying declarations were 670 made, it becomes necessary for the court to carefully scruitinize and appreciate the evidence of the witnesses to the dying declarations [683.
B] 1.05.PW1 is the brother of the deceased and therefore a very close relation, but mere relationship cannot be a ground to discard his testimony, if it is otherwise found to be reliable and trustworthy.
In the natural course of events, the deceased who was on the verge of her death would have conveyed to her near and dear ones the circumstances leading to her receiving the burn injuries.
PW1 has given a very consistent statement and has reproduced the words of the deceased clearly and truthfully.
Nothing has been brought out in the cross examination to discredit his testimony at all.
[683 C D] 1.6.Despite searching cross examination of both PW2 and PW3, nothing has been brought out in their cross examination to discredit them or doubt their veracity at all.
After carefully analysing their evidence, it is found that PWs 2 and 3 as witnesses worthy of credence and trustworthy.[684 F] 1.07.From the evidence of PWs 1,2 and 3, both the dying declarations are provedto have been made by the deceased.
They are the statements made by thedeceased and relate to the circumstances leading to her death.
Both the dying declarations are consistent with each other and appear to have been made by the deceased voluntarily and in the natural course of events.
They have a ring of truth about them.
[684 G] 1.08The medical evidence, fully corroborates the prosecution case and lendssupport to the dying declaration and more particularly the manner inwhich the deceased had been set on fire.[686 D] 1.09.The normal human conduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and.
save the life of the person.
Though, the appellants were the closest relations of the deceased, they did not do anything of the kind.
They rendered no first aid to the deceased.
Their conduct at the time of the occurrence, therefore, clearly points towards their guilt and is inconsistent with their innocence.
The appellants did not even accompany the deceased to the hospital in the matador van.
Had the husband not been a party to the crime, one would have expected that he would be the first person to take steps to remove the deceased to the hospital and leave no stone unturned 671 to save her life.
An innocent mother in law would have also done the same, even if she had no love or emotional feelings for her daughter in law.
Neither the husband nor the mother in law of the deceased took any steps to remove the deceased to the hospital let alone accompany her to the hospital.
This conduct also is inconsistent with their innocence and consistent only with the hypothesis, as stated by the deceased in her dying declarations, that the mother in law had poured kerosene on her while her husband had lit fire and put her on flames.
[686 H, 687 A D] 1.10.The prosecution has, thus, successfully established that the conduct ofboth the appellants both at the time of the occurrence and immediatelythereafter is consistent only with the hypothesis of the guilt of the appellants and inconsistent with their innocence.
[688 B] 1.11.Absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but coupled with the other circumstances, the absconding of the appellants assumes Importance and significance.
The prosecution has successfully established this circumstance also to connect the appellants with the crime.
[688 E F] 1.12.The prosecution has successfully established all the circumstances appearing in the evidence against the appellants by clear, cogent and reliable evidence and the chain of the established circumstances is complete and has no gaps whatsoever and the same conclusively establishes that the appellants and appellants alone committed the crime of murdering the deceased on the fateful day in the manner suggested by the prosecution.
All the established circumstances are consistent only with the hypothesis that it was the appellants alone who committed the crime and the circumstances are inconsistent with any hypothesis other than their guilt.
[688 G H, 687 A] 2.01.Under Section 32, when a statement Is made by a person, as to the cause of death or as to any of the circumstances which result In his death, in cases in which the cause of that person 's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence.
The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a lit mental condition.
[684 H, 685 A B] 672 2.02.A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death.
A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim.
Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embelishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any coroboration.
If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy.
The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.
[685 C E] 2.03.Both the dying declarations are consistent with each other in all material facts and particulars.
That the deceased was in a proper mental condition to make the dying declaration or that they were voluntary has neither been doubted by the defence in the course of cross examination of the witnesses nor even in the course of arguments both in the High Court and before this Court.
Both the dying declarations have passed the test of credit worthiness and they suffer from no infirmity whatsoever.
[685 F G] 2.04.The prosecution has successfully established a very crucial piece of circumstantial evidence in the case that the deceased had voluntarily made the dying declarations implicating both, the appellants and disclosing the manner in which she had been put on fire shortly before her death.
This circumstance, therefore, has been established by the prosecution beyond every reasonable doubt by clear and cogent evidence.
[685 G H] 3.01.There has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides.
This growing cult of violence and exploitation of the young brides, though keeps on sending shock waves to the civilised society whenever it happens, continues unabated.
There is a constant erosion of the basic 673 human values of tolerance and the spirit of "live and let live '.
Lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime.
It is the woman who plays a pivotal role in this crime against the younger woman, as in this case, with the husband either acting as a mute spectator or even an active participant in the crime, in utter disregard of his matrimonial obligations.
[689 C D] 3.02.Awakening of the collective consciousness is the need of the day.
Change of heart and attitude is what is needed.
If man were to regain his harmony with others and replace hatred, greed, selfishness and anger by mutual love, trust and understanding and if woman were to receive education and become economically independent, the possibility of this pernicious social evil dying a natural death may not remain a dream only.
[690 D] 3.03.The legislature, realising the gravity of the situation has amended the laws and provided for stringent punishments in such case and even permitted the raising of presumptions against the accused in cases of unnatural deaths of the brides within the first seven years of their marriage.
[690 H] 3.04.The was enacted in 1961 and has been amended from time to time, but this piece of social legislation, keeping in view the growing menance of the social evil, also does not appear to have served much purpose as dowry seekers are hardly brought to book and convictions recorded are rather few.
[691 A] 3.05.Laws are not enough to combat the evil.
A wider social movement of educating women of their rights, to conquer the menace, is what is needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and fall an easy prey to their exploitation.
[691 B] 3.06.The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacune in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished.
The courts are expected to be sensitive in cases involving crime against women.
[691 C] 674 State (Delhi Administration) vs Lavnan & Ors., Crl.
Appeals 93 and 94 of 1984 decided on 23.9.1985, referred to.
|
Appeals Nos. 2380 and 2381 of 1966.
Appeals from the judgment and order dated January 7, 1966 of the Calcutta, High Court in Income tax References Nos. 7 and 176 of 1961.
section Mitra, section K. Aiyar, R, N. Sachthey and B. D. Sharma, for the appellant (in both the appeals).
A. K. Sen, O. P. Khaitan and B. P. Maheshwari, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Grover, J.
These appeals by certificate arise out of a common judgment of the Calcutta High Court in two Income tax References.
The assessee is a private limited company.
It carried on the business of banking and financing as also of managing agency.
Starch Products Ltd. was one of the various companies which was being managed by the assessee.
Starch Products had appointed the U.P. Sales Corporation Ltd. as its selling agent.
The assessee claimed to have stood guarantee for a loan of Rs. 6 lakhs which was advanced to the U.P. Sales Corporation Ltd. by the Gwalior Industrial Bank Ltd. The borrower failed to pay the loan which on August 2, 1948 stood at Rs. 5,60,199.
This amount was paid by the assessee pursuant to the guarantee.
Thereafter the assessee treated the U.P. Sales Corporation Ltd. as its debtor for the aforesaid amount.
That company went into liquidation and as the assessee could not recover anything from it a sum of Rs. 5,60,199 was written off in the books of the assessee company.
The claim was not entertained either by the Income tax Officer or the Appellate Assistant Commissioner.
Before the Income tax Officer the 359 said amount Was claimed as bad debt vide assessee 's letter dated September 12, 1957.
The Income tax Officer rejected the explanation furnished by the assessee for advancing such a large amount to a company whose financial position was far from satisfactory.
According to him the advance was not a bona fide money lending investment.
Subsequently it was sought to be established before the Income tax Officer, that an indemnity had been given to the Gwalior Industrial Bank Ltd. in the matter of the loan account of the U.P. Sales Corporation Ltd. and the payment had been made on its failure to clear the debt of the Bank.
According to the In come tax Officer the assessee was asked to produce evidence about the guarantee having been furnished but he was not satisfied that there was any directors ' resolution authorising the furnishing of a guarantee or that the document purporting to be a guarantee had been properly stamped or that there was other sufficient evidence to establish the transaction.
Before the Appellate Assistant Commissioner the only substantial ground taken was that the Income tax Officer had wrongly disallowed the claim &or bad debt amounting to Rs. 5,60,199.
The Appellate Assistant Commissioner considered the question of the aforesaid amount being an admissible deduction or allowance under section 10(2) (xi) of the Income tax Act 1922.
In his opinion the guaranteeing of a loan though made in the interest of the assessee 's business and is a matter of commercial expediency did not represent an advance made in the normal course of the assessee 's business.
Such an advance could have been made only if it had been made to the company managed by the assessee under a contractual obligation to guarantee the finances of the managed company.
According to him the claim for irrecoverable loan would have been also admissible if the assessee could establish that the loan represented an interest bearing advance made in the course of the assessee 's money lending business but that was not the case of the assessee.
And since the loan had been advanced to assist a concern having trade relations with one of the managed companies it could not be allowed as a permissible deduction.
The appellate tribunal did not agree with the finding of the Appellate Assistant Commissioner that the loss was not directly incidental to the assessee 's business.
This is what the tribunal stated in its order : "The Appellate Assistant Commissioner, in our opinion, failed to appreciate the special nature of the business carried on by the assessee.
This is not a case where any money was advanced by the assessee for the purpose of earning interest.
All that the assesses did was to stand surety for the money advanced by a Bank to the selling agent of one of its managed companies,.
If such a 3 60 guarantee was not given Messrs. Starch Products Ltd., one of the managed companies, would have had to give extended credit to the selling agent and this could be possible if the managed company in its turn was financed either by the managing agents or a third party.
It was to obviate the necessity of such borrowing by the managed company that the assessee company stood guarantee for the loan given by Gwalior Industrial Bank Ltd. to U.P. Sales Corporation Ltd. It was only on the failure on the part of the borrower, i.e. U.P. Sales Corporation Ltd., to fulfill its committment that the assessee as a guarantor came into the picture. ' There was, therefore, no question of earning of any interest on any money advanced.
It was in the larger interest of the assessee 's business that the guarantee was given.
The standing of surety for the sales Organisation of the managed company and the consequent loss arising therefrom was in our opinion germane to the assessee 's 'business.
It is now well established that a sum of money extended not of necessity and with a view to give a direct and immediate benefit to the trade but voluntarily and on the ground of commercial expediency and in order to indirectly facilitate the carrying on of the business, may yet be an allowable deduction in computing the profits and gains of the business.
" The Tribunal held that the assessee 's claim for the loss of Rs. 5,60,199 was an admissible deduction.
At the instance of the Commissioner of Income tax, the Tribunal referred the following question of law to the High Court: "Whether on the facts and in the circumstances of the case, the sum of Rs. 5,60,199 was an admissible deduction in computing the business profits of the assessee ?" Three other questions were referred to the High Court on an application made under section 66(2) of the Act.
It is unnecessary to refer to them as the real controversy has centred on the above question alone.
The High Court addressed itself to the question whether the amount in dispute fell within section 10(2) (xi) of the Act.
The finding of the Appellate Assistant Commissioner that the guarantee had in fact been furnished to the Bank was not disputed.
This is what the High Court said after referring to certain decided cases and the relevant portion of the Tribunal 's judgment : "We agree that it was in the larger interest of the assessee 's business that the guarantee was given and we 3 6 1 are of the opinion that the debt was incidental to the business of the assessee within the meaning of section 10(2)(xi) of the Act and such a debt was found to be irrecoverable in the relevant accounting year commencing on the 31st October 1951 and ending on the 18th October 1.952." While computing profits or gains of business under section 10 certain allowances have to be made under sub section
The allowance covered by clause (xi) thereof has to be made when the assessee 's accounts in respect of any part of his business, profession or vocation are not kept on the cash basis, of such sum, in respect of bad and doubtful debts, due to the assessee in respect of that part of his business, profession or vocation, ,and in the case of an assessee carrying on a banking or money lending business of such sum in respect of loans made in the ordinary course of such business as the Income tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the books of the assessee.
Now a bad debt means a debt which would have gone into the balance sheet as a trading debt in the business or trade.
It must arise in the course of and as a result of the assessee 's 'business.
The deduction claimed should not be too remote from the business carried on by the assessee.
In Madan Gopal Bagla vs Commissioner of Income tax West Bengal(1) the principle which was accepted was that the debt in order to fall within section 10(2) (xi) must be one which can properly be called a trading debt i.e. debt of the trade the profits of which are being computed.
It was observed that the assessee in that ease was not a person carrying on business of standing surety for other persons nor was he a money lender.
He was simply a timber merchant.
There was some evidence that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person.
But it was not established that he was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit.
Even if such had been the case any loss suffered by reason of having to pay a debt borrowed for the benefit of another would have been a capital loss to him and not a business loss at all.
A businessman may have to stand surety for some one in order to get monies for his own business.
There may be a custom of the business by which that may be the only method whereby he could get money for the purpose of his own business.
If he is to discharge a surety debt and if any such custom is established it would be a business debt.
If the assessee has made a payment not voluntarily but to discharge a legal obligation which arises from his business.
he would be entitled to have the amount deducted as a bad debt under section 10(2)(xi); see Commissioner of Income tax Bombay vs (1) 362 Abdullabhai Abdulkadar(1).
In Essen Private Ltd. vs Commis sioner of Income tax(2) Madras, the appellant carried on business as a managing agent of several concerns.
Pursuant to the agreement with one of the companies managed by it, it advanced large sums of money to the managed company and also guaranteed a loan of Rs. 2 lakhs obtained by that company from a Bank.
The managed company failed in its business and upon the Bank pressing for payment the appellant in accordance with its guarantee made certain payments to that Bank.
The assessee had ultimately to write off certain sum in its books as bad debts and it claimed that allowance under section 10(1) (xi).
The Tribunal found that the advances to the managed company and the agreement guaranteeing the loan to the managed company were in pursuance its objects and were made in the course of its business and the claim was allowed.
That decision was finally affirmed by this Court.
In this case there was a cause in the memorandum of association by which the assessee was entitled to land monies and to guarantee the performance of contracts.
Similarly the managing agency agreement contained a clause about lending and advancing of money to the managed company.
It was found by the appellate tribunal that it was a part of the managing agency to provide funds to the managed company.
In the present case none of those facts have been found.
Neither the memorandum of association nor the managing agency agreement contained any such provision by which it could be said that the guaranteeing of the loan made by the Bank to the selling agents was done in the course of the managing agency business.
In our judgment the facts relied upon by the appellate tribunal and the High Court are barely sufficient for bringing the allowance claimed under section 10(2) (xi).
It may be mentioned that the case of the assessee was confined to that provision and no reliance was placed on any other provision under which such an allowance could be claimed.
There was no privity of contract or any legal relationship between the assessee and the selling agent.
Neither under customer nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the Bank to the selling agent.
It is difficult how it was in the interest of the assessee 's business that the guarantee was given.
There was even no material to establish that the managed company was under any legal obligation to, finance the selling agent or to guarantee any loans advanced to the selling agent by a third party.
It is incomprehensible in what manner the guaranteeing of the loan advanced to the selling agent indirectly facilitated the carrying on of the assessee 's business.
It is equally difficult to appreciate the observations of the High Court that it was in the larger interest of (1) (2) 363 the assessee 's business that the guarantee was given.
In our opinion the view of the appellate tribunal was based on a complete misapprehension of the true legal position.
The High Court also fell into the same error.
The allowance which was claimed did not fall within section 10(2) (xi).
No attempt was made nor indeed it could be usefully made to claim any allowance under section 10(2:) (xv)of the Act.
For the reasons given above the correct answer to the question referred should be in the negative and against the, assessee.
The appeals are thus allowed with costs and the judgment of the High Court is set aside.
One hearing fee.
G.C. Appeals allowed.
| The appellant, who was the Chief Minister of Kerala at the time.
, at ' a press conference held by him on November 9, 1967, made various critical remarks relating to the judiciary referring to it inter alia as "an instrument of oppression" and the Judges as "dominated by class hatred, class prejudices", "instinctively" favoring the rich against the poor.
He also stated that as part of the ruling classes the, judiciary "works 'against workers, peasants and other sections of the working classes" and "the law and the system of judiciary essentially served the exploiting classes".
These remarks were reported in the newspapers and thereafter in proceedings commenced ' in the High Court the appellant was called upon to show cause why he should not be committed for contempt.
In an affidavit in reply the appellant stated that the reports were "substantially correct", though incomplete in some respects.
He supplied some omissions and pleaded want of intention to show disrespect to the judiciary and justification on the ground that the offence charged could not be held to be committed, in view of the guarantees of freedom of speech and expression under the Constitution.
He claimed that his observations did no more than give expression to the Marxist philosophy and what was contained in the programme of the Communist Party of India.
By a majority judgement the appellant was convicted for contempt of court and fined Rs. 1000/ or simple imprisonment for one month.
In appeal to this Court it was contended on behalf of the appellant that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and expression in Article 19(1)(a) : and that the intention of the appellant in making his remarks at the press conference should be examined in the light of his political views which he was at liberty to put before the people; he sought to justify the remarks as an exposition of his ideology which he claimed was 'based on the teachings of Marx and Engels and on this ground claimed protection of The first clause of article 19(1).
HELD : Upholding the appellant 's conviction The law punishes not only act which do not fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result.
, Judged from the angle of courts and administration of justice" there was no doubt that the appellant was guilty of contempt of court.
Whether he misunderstood the teachings of Marx and Engels or deliberately distorted them was not to much purpose.
The likely effect of his words must be seen and they clearly had the, effect of lowering the prestige of judges and courts 698 in the eyes of the people.
That he did not intend any such result may be a matter for consideration in the sentence to he imposed on him but could not serve as a justification.
It was obvious that the appellant had misguided himself about the true teachings of Marx, Engles and Lenin.
He had misunderstood the attack by them on state and the laws as involving an attack on the judiciary.
No doubt the courts, while upholding the laws and enforcing them, do give support to the state but they do not do so out of any impure motives.
They do not range themselves on the side of the exploiting classes and indeed resist, them when the law doe.
not warrant an encroachment.
To charge the judiciary as an instrument of oppression, the judges as guided and dominated by class hatred, class interests and class prejudices, instinctively favoring the rich against the poor is to draw a very distorted and poor picture of the judiciary.
It was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions.
It weakened the authority of law and law courts.
[712 E] While the spirit underlying Art 19)(1)(a), must have due play, the Court could not overlook the provisions of the second clause of that Article.
Its provisions are to be read with articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves.
Although article 19(1)(a) guarantees complete freedom of speech and expression, it also makes an exception in respect of contempt of court.
While the right is essential to a free society, the Constitution has itself imposed restrictions in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon judges and courts will be condoned.
[704, C] Samuel Roth vs United States of America, I L.Ed.2d 1489 at 1506; Arthur Terminiello vs City of Chicago.
; at 1134; Charlotte Anita Whitney vs People of the State of California, ; , New York Times Company vs L. B. Sulivan, 686; and Kedar ' Nath Singh vs State of Bihar, [1962] 2 Supp.
S.C.R. 769, referred to.
While it is true that Lord Morris in Mcleod vs St. Aubyn at p. 561 observed that the contempt of court known from the days of the Star Chamber as Scandalum Justiciae Curiae or scandalising the Judges, had fallen into disuse in England, as pointed out by Lord Atkin in Andre Paul Terence Ambard vs The Attorney General of Trinidad, and Tobago, A.I.R. 1936 P.C. 141 at 143, the observations of Lord Morris were disproved within a year in The Queen vs Gray.
at 40.
Since then many convictions had taken place in which offence was held to be committed when the act constituted scandalizing a Judge.[703 D] The Government Pleader, High Court, Bombay vs Tulsidas Subhanrao Jadhav, I.L.R. ; explained.
In re : Basudeo Prasad, Cr. Appeal No. 110 of 1960 decided on May 3, 1962; distinguished.
|
Appeal Nos.
245 251/72.
From the Judgment and Order dated 21 9 1970 of the Assam and Nagaland High Court in Civil Rules Nos. 105, 106 and 123 to 127/ 66.
A.K. Sen, D.N. Mukherjee and N.R. Choudhary for the Appellant.
Purshottam Chatterjee and S.N. Choudhary for the respond ents.
The Judgment of the Court was delivered by KHANNA, J.
The short question which arises for consid eration in these seven appeals filed on certificate against the judgment of Assam and Nagaland High Court is the scope and validity of the following part of rule 23 of the Assam Agricultural Income tax Rules, 1939 (hereinafter referred to as the rules) framed under section 50 of the Assam Agricul tural Income tax Act (Assam Act 9 of 1939) (hereinafter referred to as the Act): "Where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.
" The High Court held that the facts of this case were covered by the above quoted rule.
The High Court also repelled the challenge to the vires o{ the rule.
The appeals arise out of seven petitions filed under articles 226 and 227 of the Constitution of India by the appellant which were dismissed by a common judgment.
The matter relates to assessment years 1946 47, 1947 48, 1948 49, 1949 50, 1950 51, 1951 52 and 1955 56.
Each writ peti tion related to one of these years.
We may set out the facts relating to the assessment year 1946 47 as it is the common case of the parties that the decision about the writ petition relating to that year would govern the other writ petitions also.
The appellant Sashi Prasad Barooah was the Karta of a Hindu undivided family styled as S.P. Barooah & Others.
The family was governed by Dayabhaga school of Hindu law and consisted of three members.
The family owned certain tea estates and carried on the business of tea plantation.
It was assessed under the Act in respect of its income derived from manufacture and sale of tea.
The case of the appellant is that there was a partition of the family on January 1, 1945 and as a result of that partition, some of the tea estates fell to the share of the appellant and he became exclusive owner thereof from the date of the partition.
A general notice dated April 3, 1946 was published in the Assam Gazette and local newspapers in terms o,f sub section (1) of section 19 of the Act calling upon persons whose agricultural income exceeded 647 the limits of taxable income to furnish returns within the specified time.
On March 24, 1947 the appellant addressed a letter to the Agricultural Income tax Officer praying for extension of ' time for submission of the return.
Another letter dated May 10, 1947 was addressed by the appellant to the Agricultural Income tax Officer stating that he was trying to expedite the submission of the return.
On February 15, 1951 the Agricultural Income tax Officer addressed a communication to the appellant asking him to file the return by March 14, 1951.
The appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong.
In his letter dated July 21, 1951 the appellant informed the Agricultural Income tax Officer that he would file his return as soon as some matters were settled.
On March 25, 1955 the appellant addressed another letter to the Agricultural Income tax Officer stat ing that he had not received the relevant assessment orders made by the Income tax Officer (the income tax officer under the Indian Income tax Act, 1922) relating to the assessment years 1946 47 onwards.
On July 1959 the following two notices were sent by the Agricultural Income tax Officer to the appellant: "I am to inform you that following the dissolution of family business of Sashi Prasad Barua and Others in the year 1945, you are liable to furnish a Return of agricultur al incomes including those from the Tea Es tates under your ownership from the assessment year 1946 47.
Please also note that the Returns along with certified copies of Central Income tax Assessment should reach this office on or before 15 8 59.
In default, you will be liable for summary assessment." "Whereas I have reason to believe that your total agricultural income from sources chargeable to agricultural income tax in the year ending the 31st March, 1947 to 1959 (a) has wholly escaped assessment; (b) I therefore propose (i) to assess the said income that has escaped assessment.
I hereupon require you to deliver to me not later than 15 8 59 or within 30 days of the receipt of this notice, a Return in the attached form of your total agricultural income during the previous year ending the 31st March, 1946 to 1958.
" Accompanying the two notices sent by the Agricultural Income tax Officer was also a notice under section 19(2) and section 30 of the Act.
The appellant failed to submit a return or to furnish certified copies of the Central assess ment orders.
The Agricultural Income tax Officer as per order dated June 22, 1961 assessed the total agricultural income of the appellant for the year 1946 47 to be 648 Rs. 1,45,994.
An amount of Rs. 19,321.44 was held to be recoverable from the appellant.
The appellant filed an appeal against that order but the same was dismissed by the Assistant Commissioner of Taxes on December 27, 1962.
Revision filed by the appellant was dismissed by the Commis sioner of Taxes as per order dated September 28, 1964.
Certificate of public demand showing an amount of Rs. 3,74,087,89 as due from the appellant for the seven years in question was then issued by the Agricultural Income tax Officer.
Proclamation for the sale of the property of the appellant was thereafter issued for the recovery of the amount due from the appellant.
The appellant thereupon filed, as mentioned earlier, seven writ petitions.
Prayer made in the writ petitions was to quash the impugned assess ment orders dated June 22, 1961, the notices of demand dated July 4, 1961 and the proclamation of sale dated December 31, 1964.
Form one of the notices ,addressed by the taxation authorities to the appellant as well as from the return filed on their behalf, it would appear that the taxation authorities were not averse in the event of partition among the members of the Hindu undivided family, to assess the appellant in his individual capacity in respect of the agricultural income arising from those tea estates which had fallen to his share.
Such a course, it seems, was also not acceptable to the appellant.
His stand at the same time was that no assessment could be made in the name of Hindu undivided family as according to him the same had been disrupted as a result of partition.
The appellant thus wanted a complete imunity from payment of agricultural income tax during the years in question even though agricul tural income had arisen from tea estates.
Although a number of grounds were taken in the writ petitions, at the hearing before the High Court only two grounds were pressed on behalf of the appellant.
The first ground was that after the dissolution of the Hindu undivided family, no assessment order could be made under the Act in respect of such disrupted Hindu undivided family.
The second submission advanced on behalf of the appellant was that in case it be held that the matter was covered by rule 23 reproduced above, in that event the said rule was ultra vires the powers of the State Government to frame rules under the Act.
The High Court, as already mentioned, decided on both the points in favour of the revenue and against the appellant.
In appeal before us Mr. Sen on behalf of the appellant has contended that the Hindu undivided family of which the appellant was the Karta was disrupted on January 1, 1945.
It is urged, as was done before the High Court, that after the disruption of that family, it could not be assessed under the Act.
Rule 23 reproduced above, according to the learned counsel, is not attracted in the present case.
In case, however, it be held that the said rule applies to the present case, the State Government, Mr. Sen submits, had no power to make such a rule.
The above contentions have been controverted by Mr. Chatterjee on behalf of the respondents.
The learned coun sel has also emphasised the fact that in none of the commu nications sent by the appellant 649 mentioned above, there was any reference to partition of the Hindu undivided family.
After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well founded.
It is conse quently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income tax Officer.
It may be apposite at this stage to refer to the materi al provisions, as they stood at the relevant time, of the Act which provides for the imposition of tax on agricultural income arising from lands situated in Assam.
According to the definition of "person" as given in section 2(m) of the Act, person includes an undivided or joint Hindu family.
Section 3 is the charging section.
According to this sec tion, agricultural income tax at the rate or rates specified in the annual Assam Finance Acts subject to the provisions of section 6 shall be charged for each financial year in accordance with, and subject to, the provisions of this Act on the total agricultural income of the previous year of every individual, Hindu undivided or joint family, company, firm and other association of individuals.
Section 19 of the Act deals with the return of income and reads as under: "19.
(1) The Agricultural Income tax Officer shall, on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by the Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every person whose agri cultural income exceeds the limit of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year: Provided that the Agricultural Income tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or class of persons; (2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income tax Officer, of such amount as to render such person liable to payment of agricultural income tax for any financial year the Agricultural Income tax Officer may serve in that financial year a notice in the prescribed form upon him requir ing him to furnish, within the prescribed period, a return in the prescribed manner setting forth his total agricultural 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 650 (2) or, having furnished a return under either of those subsections, 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, and any return so made shall be deemed to be made in due time under this section.
" Section 20 provides for the making of an assessment order.
Section 30 deals with income escaping assessment, and its material part reads as under: "If for any reason any agricultural income chargeable to agricultural income tax has escaped assessment for any financial year, or has been assessed at too low a rate, the Agricultural Income tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income tax on such agricul tural income or, in the case of a company on the prin cipal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 19, and may proceed to assess or reassess such income, and the provi sions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section :" Section 5C) empowers the State Government to make rules.
The material part of that sec tion reads as under ': "50.
(1) The Provincial Government may, subject to previous publication, make rules for carrying out the purposes of this Act, and such rules may be made for the whole of the Province or such part or parts thereof as may be specified.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may (a) . (b) . (c) . (d) . (e) . (f) . (g) . (h) . (i) . (j) prescribe the manner in which the tax shall be payable where the assessment is made on the agricultural income of a Hindu undivided or joint family and a partition of the.
property of such 651 family has been effected after the date of such assessment; (k) . (l) . (m) .
We have set out above the relevant part of rule 23.
The rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.
It would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition iS passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be deemed for the purpose of the Act to continue to be a Hindu undivided family.
Admittedly no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the Karta.
As such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family.
We are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order.
Such cases, in our view, are covered by other part of rule 23.
We are, however, not concerned with that part.
So far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous.
The language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of parti tion in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act to continue to be a Hindu undi vided family.
As regards the second contention, Mr. Sen submits that the power which has been conferred by clause (i) of sub section (2) of section 50 of the Act is to make rules pre scribing the manner in which the tax shall be payable when the assessment is made on agricultural income of a Hindu undivided or joint family and a partition of the property of such family has been effected after the date of such assessment.
It is urged that apart from that, the State Government has no power to make a rule for assessment of a Hindu undivided family after a partition takes place in such family.
This contention is devoid of force as we are of the opinion that the State Government was competent to make the part of rule 23 reproduced above in exercise of the powers conferred by sub section (1) of section 50.
According to that sub section, the State Government may subject to previ ous publication make rules for carrying out the purposes of this Act.
It has not been disputed before uS that there was previous publication of the rules in question.
The question is whether the 652 part of rule 23 reproduced above can be said to have been made for carrying out the purposes of the Act.
The answer to this question, in our opinion, should be in the affirma tive.
What the rule contemplates is that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the pur poses of the Act to continue to be Hindu undivided family.
The rule thus relates to the working of the Act.
Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other associa tion of persons.
Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which Hindu undivided family was assessed hitherto.
The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family.
This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub section (1) of section 50 of the Act.
There is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities.
section (1) of section 171 of the Income tax Act 1961 provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family.
The fact that, unlike the Income tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material differ ence.
The rules would be as much binding as would be the statutory provision in this respect.
The only requirement is that the rules should be validly made.
in exercise of the powers conferred by the Act.
So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule.
The proposition is well settled that it is not unconsti tutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like [see Pt.
Banarsi Das vs State of Madhya Pradesh(1)].
In that case this Court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947.
The said Act provided for exemption from taxation in res (1) 653 pect of the supply of certain material.
Power was also conferred upon the State Government to amend such exemption by notification.
This Court upheld the validity of that notification.
We may also refer to the case of Powell vs Appollo Candle Company Limited(1) which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales.
That section conferred a power on the Governor to impose.
tax on certain articles of import.
While repelling the challenge to the constitutional validity of that provision, the Privy Council observed: "It is argued that the tax in question has been imposed by the Governor and not by the Legislature who alone had power to impose it.
But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued.
the Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.
In these circumstances, their Lord ships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of ]879 to be beyond the power of the Legislature.
" In Syed Mohamed & Co. vs The State of Madras(2), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act.
Section 5(vi) of that Act had left it to the rulemaking authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins.
The validity of the rules was attacked on the ground that it was only the legislature that was competent to decide who 'shall be taxed and that the determination of that question by the rule making authorities was altra vires.
The Madras High Court rejected this contention, and held on a review of the authorities that the delegation of authority under section 5(vi) was within permissible consti tutional Limits.
Powell 's case as well as the case of Syed Mohamed were referred to with approval by this Court in the case of Pt.
Banarsi Das.
The above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its compe tence to make rule 23 reproduced above.
We, therefore, uphold the judgment of the High Court and dismiss the appeals with costs.
One set of fee P.B.R. Appeals dismissed.
(1) (2) 3 S.T.C. 367.
| Section 2(6C)(iii) of the Income tax Act, 1922 provides that the value of any benefit or perquisite, whether con vertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being benefi cial owner of shares, not being shares entitled to fixed rate of dividend carrying not less than 20% of the voting power) and any sum paid by any such company in respect of any obligation which, but for such appointment, would have been payable by the director or other person aforesaid is income.
The assessee was the beneficial owner of 1800 out of 3000 equity shares of a company.
He was, however, not its director.
He had a similar interest in another company.
Both the companies had spent on his personal necessities a large sum of money, which the Income tax Officer treated as his income under section 2(6C)(iii) of the Act.
The Appellate Assistant Commissioner, as also the Tribunal, dismissed his appeal against the order of the Income tax Officer and the High Court answered the reference against the assessee.
In appeal to this Court it was contended that the ex pression "concerned" in the management of the business of the company takes in only the person who legally partici pates in the management of its business and not one who has only remote control of its business.
even if he had the majority of voting power.
Dismissing the appeal, HELD: The expression "person concerned in the management of business"may take in not only a person who directly partici pates or engages in the management of the business but also one who indirectly controls its management through the managerial staff from behind the scenes.
[657 B] 1.
(a) The term "concerned" in section 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office holder of the company.
In the context of "manage ment" it is wide enough to include every person "interest ed" in the management, in the sense of having the direction and control of the managerial staff.
[659 C D] (b) The word "concerned" is not a term of art, having a precise and fixed meaning.
It has several nuances, and is used to convey diverse shades of meaning.
It may mean "to have a relation to.
or bearing on, be of interest 0r importance" or "to have an anxiety, worry".
"Concerned" as an adjective may mean "interested", "involved".
In one context, it may mean one thing and in a different context another.
[658 G H] (c) The word "concerned" takes its colour from the words "in the management of the business" in association with which it occurs.
In the context of business, "manage" means "to control.
to guide.
to administer to conduct or direct affairs ', carry on 'business. "Management" includes the act of managing by direction or regulation or adminis tration or control or superintendence.
[658 H, 659 A] 655 (2) The first part of the clause is confined to the ob taining of the value of any benefit or perquisite from a company by a director, even if he has no substantial inter est in the company.
The second part applies to 2a person who may not be a director but has a substantial interest in the company.
What is "substantial interest" is further equated by the succeeding expression "that is to say" with the co existence of two elements, namely, (i) concern in the management of the business of the company and (ii) benefi cial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than 20% of the voting power.
[657 G H] In the instant case, the assessee, Obtained the benefit from the company holding 1800 out of 3000 shares, that is, carry ing a voting power of 60% and, therefore, satisfied the second element.
His own admission that he was in control of the company necessarily includes an admission of his being "concerned in the management of the business of the company".
[658 A B]
|
ivil Appeal No. 4460 Of 1988.
From the Order dated 15.4.
1988 of the Customs Excise and Gold (Control) Appellate Tribunal New Delhi in Appeal No. E/Appeal No. 2225 of 1986 A. 3 V. Sreedharan, V.J. Francis and N.M. Popli for the Appel lant.
Ashok H. Desai, Solicitor General, Dalip Tandon and P. Parmeshwaran for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This is an appeal under section 35L of the .
The appeal is di rected against the order dated 15.4.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi.
The appellant is the manufacturer of Hacksaw blades and Bandsaw Blades failing under Tariff Item No. 51 A(iv) of the Central Excise Tariff.
The appellant filed a classification list as per Rule 173B of the Central Excise Rules 1944 on 26.3.1985 in respect of their products furnishing the tariff rate of 15% Ad valorem by mistake instead of furnishing the effec tive rates of duty as per Notification No.85/85 CE dated 17.3.1985.
The aggregate value of the clearance in the preceding year i.e. 1984 85 did not exceed Rs.75 lakhs.
In the case of first clearance upto an aggregate value not exceeding Rs.7.5 lakhs, the effective rates of duty is nil and in the case of next clearance of Rs.7.5 lakhs, the duty is 3.75% Ad valorem.
The Assistant Collector of Central Excise, Hyderabad, approved the Tariff rate 15% Ad valorem on 3.6.1985 instead of the above effective rates as the appellant did not claim the exemption as per Notification No.85/85 CE dated 17.3.1985 due to ignorance.
A revised classification list with the effective rates in respect of the products with retrospective effect from 26.3.1985 was filed on 31.10.1985.
The revised classification list was approved.
The appellant claimed that they had paid excess Rs.2,55,172.55 from 1.4.1985 to 31.8.1985 as excise duty.
They made an application for refund as per rule under sec tion 11B of the on 30.10.1985.
The Assistant Collector of Central Excise by his order dated 13.12.1985 sanctioned the refund claim only partly.
For the period from 1.4.1985 to 27.4.1985, the refund claim was rejected on the ground that the same was time barred.
The Assistant Collector held that the refund claim for the period 1.4.1985 to 27.4.1985 was time barred for the reason that under section 11B, the 'relevant date ' for preferring the claim for a case such as that of the appellant was the date of payment of duty and, according to him, the duty had been paid by adjustment in the personal ledger account as and when goods were removed.
The plea of the appellant is that mere debiting in the personal ledger account should not be taken as the starting point for 4 limitation and the relevant date should be the date on which RT 12 Returns which are filed on a monthly basis are as sessed.
The order of the Assistant Collector was confirmed in the appeal by the Collector of Central Excise (Appeals).
The further appeal to the Tribunal was also unsuccessful.
The question that arises for decision in the appeal is as to the starting point of limitation for filing an appli cation under section 11B of the .
Section 11B so far as it is material reads as under: "11B. Claim for refund of duty (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date.
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
Explanation For the purposes of this section (B) "relevant date" means, (a) to (d) . . . . . . . . (e) in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (f) in any other case, the date of payment of duty.
" The appellant 's contention before the authorities was that the date of assessment would be the date of payment of duty within the meaning of clause (f) above.
We agree with the learned Solicitor General that this argument is not tenable.
Where an assessee maintains a personal ledger account, duty is paid by way of debit therein and goes to reduce the amount of deposit paid by the assessee.
It is 5 not a mere adjustment entry; it is effective payment.
Before us, however, learned counsel for the assessee has raised an alternative contention.
According to the appellant it is clause (e) which is applicable in the case whereas the contention of the respondent is that clause (f) is attract ed.
To understand this argument, it is necessary to refer to 'Self removal ' procedure under which the appellant cleared the goods.
Chapter VII A of the Rules relates to removal of excise goods on determination of duty by producers, manufacturers of private warehouse licensees.
Under Rule 173B, every assessee shall file with the Proper Officer for approval a list in prescribed form showing full description of all excisable goods or products manufactured, the rate of duty leviable on such goods and such other particulars as the Collector may direct.
The Proper Officer shall, after such enquiry as he deems fit, approve the list with such modifi cations as are considered necessary and return one copy of the approved list to the assessee who shall unless otherwise directed by the Proper Officer determine the duty payable on the goods intended to be removed in accordance with such list.
All clearance shall be made only after the approval of the list by the Proper Officer.
Sub rule (2 A) of Rule 173B provides as under: "(2 A) All clearances shall, subject to the provisions of rule 173CC, be made only after the approval of the list by the proper officer.
If the proper officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall, either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure prescribed under rule 9B for provisional assess ment of the goods.
" Where the assessee disputes rate of duty approved by the Proper Officer in respect of goods, he may have to give an intimation to that effect to such officer and to pay duty under protest at the rate approved by such officer.
When the dispute about the rate of duty has been finalised or for any other reason affecting rates of duty, a modification of the rate or rates of duty is necessitated, the Proper Officer shall make such modification and inform the assessee accord ingly.
Under Rule 173C, the assessee shall file with the Proper Officer a price list in prescribed form.
Prior ap proval of the price list by the 6 Proper Officer is necessary in the specified cases.
Here also, sub rule (5) of rule 173C provides: "(5) Subject to the provisions of rule 173CC, an assessee specified in sub rule (2) shall not clear any goods from a factory, warehouse or other approved place of storage unless the price list has been approved by the proper officer.
In case the proper officer is of the opinion that on account of any enquiry to be made in the matter or for any other rea sons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord allow such asses see to avail himself of the procedure prescribed under rule 9B for provisional assessment of the goods." Under Rule 173CC, assessee may remove goods in certain cases pending approval by the Proper Officer of the classi fication or price list.
Rule 173F provides that where the assessee has complied with the provisions of Rules 173B, 173D, and where applicable 173C, 173CC, he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not, except as other wise expressly provided, remove such goods unless he has paid the duty as determined.
Under Rule 173G, every assessee shall keep an account current with the Collector.
This rule lays down the procedure which is to be followed by the assessee for payment of duty.
According to sub rule (3) of Rule 173G, within five days after the close of each month every assessee shall file with the Proper Officer a monthly return in the prescribed form showing the quantity of the excisable goods manufactured, duty paid on such quantity and other particulars.
The Proper Officer makes an assessment as provided under Rule 1731 on the basis of the information contained in the return and after such further enquiry as he may consider necessary assess the duty due on the goods removed and the assessment is completed.
The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed and where the duty so assessed is more than the duty determined and paid, the assessee shall pay the deficiency by making a debit in the current account within 10 days of the receipt of copy of the return and where such duty is less, the assessee shall take credit in the account current for the excess.
This is the scheme for the payment of duty for clearance of goods by the manufacturers.
This procedure is known as self removal procedure.
There will be no time bar for refund if the duty is paid under 7 protest.
The period of 6 months is prescribed in other cases.
As we have already seen, section 1 1B says that the period of 6 months "in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof".
In this case, the classification list filed by the appellant for the period 1.4.1985 to 27.4.1985 was not approved till 3.6.1985.
From the provisions of Rules 173B, 173C and 173CC, which we have set out earlier, it will be seen that clearances can be made only after the approval of the list by the particular officer.
However, if there is likely to be delay in according the approval the officer can allow the assessee to avail himself of the procedure pre scribed under Rule 9B for provisional assessment of the goods.
In the present case between 1st April, 1975 when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account.
The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned.
This is the procedure prescribed under Rule 9B except for the circum stance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time.
In these circumstances, the clearances of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment.
In such a situation clause (e) of para (B) of the Explanation under section 11B will be attracted.
In this case the RT 12 Returns for the month of April, 1985 was filed on 8.5.1985 and the same was assessed on 29.10.1985.
It is, therefore, only from the date of this assessment that time bar in section 11B will operate.
In the present case the refund application had been filed on the 30th of October, 1985.
It cannot, therefore, said to be time barred.
We, therefore, accept this contention of the appellant.
The appeal has therefore to be allowed holding the appellant is entitled to the full amount and there is no bar of limi tation as found by the Tribunal.
We, therefore, allow the appeal.
In the facts and circumstances of the case there will be no order as to costs.
T.N.A. Appeal allowed.
| A group of Block Level Extension Officers rendered surplus in their parent department were appointed as Sales Tax Inspectors, Class III (Executive) posts, in the respond ent State between 13th February, 1967 and 28th September, 1970.
By an order dated 29th March, 1967, they were exempted from the requirement of going through competitive examina tion for the purpose of absorption.
By memorandum dated 22nd May, 1967 it was provided that seniority of surplus Class III ministerial employees of the development blocks on their absorption in other departments shall be determined with regard to the completed years of service counted for fixa tion of initial pay.
By a subsequent memorandum dated 8th November, 1967 this facility was also extended to employees absorbed in Class III executive posts.
Another order issued on 19th July, 1973 on the subject maintained the provision with regard to seniority as contained in the memorandum dated 22nd May, 1967.
Subsequently these Sales Tax Inspec tors were made permanent to that post retrospectively with effect from 31st March, 1967 by an order dated 15th Febru ary, 1980.
In the combined seniority list prepared accord ingly some of the directly recruited Sales Tax Inspectors were shown junior to the absorbed Sales Tax Inspectors.
On cross petitions being filed by the existing Sales Tax Inspectors and the absorbed Sales Tax Inspectors assailing the seniority list the High Court quashed the order dated 15th February, 1980 and seniority was directed to be fixed in accordance with the Recruitment Rules and general condi tions of Service Rules.
In these appeals by special leave, it was contended for the existing Inspectors that the absorbed Inspectors could not be confirmed on 15th February, 1980 retrospectively with effect from a presumed date, namely, 31st March, 1967; that the determination of seniority taking 155 confirmation as the basis was erroneous as they were enti tled to have the entire period between their actual appoint ment and confirmation taken into consideration, and that the appointment of the absorbed Inspectors was illegal having been made not in conformity with the relevant rules and without the recommendations of the Public Service Commis sion.
For the absorbed Inspectors it was contended that since they had been working in another department of the State Government from various dates between 13th November, 1956 and the actual date of their absorption they were entitled to have the entire period of their service in that department taken into consideration and the fixation of their seniority on the basis of their having been confirmed from the presumed date of 31st March, 1967 was erroneous, that none of the rules relied on by the existing 'Inspectors was applicable to them, and that it was the executive in structions issued in this behalf particularly dated 29th March, 1967, 22nd May, 1967, 8th November, 1967 which ap plied to their absorption.
Allowing the appeals, the Court, HELD: 1.
The order of the State Government dated 15th February, 1980 giving retrospective confirmation to the absorbed Sales tax Inspectors from a presumed date and determination of inter se seniority on the basis of the dates of confirmation was valid.
[159H] 2.1 Once an incumbent is appointed to a post according to rule, his seniority shall be counted from the date of his appointment and not according to the date of his confirma tion.
His transfer to the same or an equivalent post in another Government department cannot wipe out his pre exist ing length of service in the parent department.
[162D; 164G] Direct Recruit Class II Engineering Officers ' Associa tion vs State of Maharashtra & Ors., ; ; Wing Commander J. Kurnar vs Union of India & Ors., ; and K. Madhavan & Anr.
vs Union of India & Ors.
, , referred to.
2.2 It is, however, perfectly within the power of the Government to have a rationalisation of the entire situation and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned department.
The Courts will only insist that the rules so formulated should be reasonable, just and equitable.
[165E; 166E] R.S. Makashi vs I.M. Menon, ; ; K.C. Vasudeva 156 S.G. Jai Singhghani vs Union of India, ; , referred to. 2.3 In the instant case, if the period between the dates of appointment and confirmation of the existing Inspectors was counted for fixing their seniority but the period during which absorbed Inspectors worked in their parent department was ignored, the former would have obviously been placed on a more advantageous position but only to the prejudice of the latter as it would have amounted to sacrificing their interest.
If, on the other hand, the periods of continuous service of both the sets of Inspectors was taken into ac count it would have resulted in granting benefit to the absorbed Inspectors at the cost of existing ones and presum ably including those who had already been promoted as As sistant Sales Tax Officers, even prior to 22nd May, 1967, inasmuch as the period during which they had served in their parent department was much longer than the period of offici ation of existing Inspectors.
This was the situation with which the State Government was faced and it was its duty to evolve some policy or equitable formula which did justice, as far as possible, to the competing claims of both the sets of officers.
The decision taken by the Government in the peculiar facts and circumstances of the case could not be said to be either arbitrary or discriminatory.
No statutory rule has been brought to Court 's notice which could run counter to it.
[165H; 166A D] 3.
The services of the absorbed Inspectors have not been shown to have ever been factually terminated in their parent department.
Again, though the nature of appointment of these officers in the Sales Tax Department was temporary they were allowed to uninterruptedly continue to hold the said post and were subsequently not only confirmed on that post but were also given ad hoc promotion as Assistant Sales Tax Officers.
Furthermore, no relief for the quashing of their appointment was sought for by the direct recruits before the High Court nor was any such relief pressed there.
In fact, even the fixation of their pay as Inspectors consequent upon their absorption, which was done in accordance with the executive instructions does not seem to have been ever challenged.
The validity of their appointment in the Sales Tax Department, therefore, could not be assailed.
[160G;
|
Civil Appeal No. 1837 of 1974.
Appeal by Special Leave from the Judgment and Order dated 4 9 74 of the Calcutta High in Civil Rule No. 5547 (N) of 1974.
Civil Appeals Nos. 1838 1842/74 Appeals by Special Leave from the Judgments and Orders dated 18 9 74, 29 7 74, 9 8 74, of the Allahabad High Court (Lucknow Bench) in Civil Writ Nos.
4398, 400, 4397 of 1974 and C.W.A. 3344/74 and W.P. No. 947/74.
Civil Appeal No. 485/75 Appeal by Special Leave from the Judgment and Order dated 24 10 74 of the Gujarat High Court in L.P.A. No. 208/74.
Civil Appeal No. 1246/75 Appeal by Special Leave from the Judgment and Order dated 1 4 75 of the Andhra Pradesh High Court in W.A. No. 900/75.
Civil Appeal No. 2041/74 Appeal by Special Leave from the Judgment and Order dated 15 10 74 of the Gujarat High Court in L.P.A. No. 205/74.
Niren De, Attorney General for India (In all appeals) Devakinandan.
(In a11 appeals) P.P. Rao (In C. As. 1245/75 and C.A. 2041/74), R.N. Sachthey for the appellants in CAs.
1837 42 of 74, 1246/75 and 2041/74 and R. 2 in C. As.
1839, 1840/74 and RR.
1 and 2 in C.A. 485/75.
33 A.K. Sen, (In CA 1837/74), I. N. Haldar (In CA 1837/74), K.K. Singhvi (In CA 2041/74), Yogeshwar Prasad; S.K. Bagga and (Mrs.) section Bagga for RR.
1, 3, 7, 11, 12 and 14 in CA 1837/74 and R. 1 in CA Nos.
1839 1841/74 and 2041./74 and RR 2 and 3 in CA.
No. 1246/75.
Yogeshwar Prasad and (Miss) Rani Arora for R. 1 in C.A. 1838 74.
Yogeshwar Prasadand (Miss) Rani Arora for R. 1 in C.A. 1842/ 74.
Ram Panjwani, Bishamber Lal, S.K. Gupta and Dayal for Appellant in CA.
485/75 and RR 5, 6 and 7 in CA 2041/74 for the Interverners in CA 1838, 1841, 2041/74 and CA No. 1246/75.
The Judgment of the Court was delivered by Ray, C.J.
The principal question in these appeal is whether the selection list for promotion of Income Tax Officers Class Service to the post of Assistant Commission ers of Income Tax is correct or not.
The selection list was prepared by the Departmental Promotion Committee on 23, 24 and 25 July, 1974.
It may be stated here that on 16 August 1972 this Court set aside the Seniority List which had been impugned in Civil Appeal No. 2060(N) of 1971 and gave directions on which the Seniority List was to be prepared.
(See Bishan Sarup Gupta vs Union of India(1).
This selection list was prepared on the basis of the seniority list approved by this Court on 16 April, 1974 in Bishan Sarup Gupta etc.
vs Union of India & Ors. etc.
The basis of the preparation of the selection list is the field of choice.
The principles for promotion to selec tion posts are set out in a Memorandum dated 16 May 1957 issued by the Central Board of Revenue.
The principles are these: First, greater emphasis should be placed on merit as criterion for promotion.
Appointments to selection posts and selection grades should be made on the basis of merit having regard to seniority only to the extent indicat ed there Second, the Departmental Promotion Committee or other selecting authority should first decide the field of choice, namely, the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list provided, however, that an officer of outstanding merit may be included in the list of eligible persons even if he is outside the normal field of choice.
Third, the field of choice wherever possible should extend to five or six times the number of vacancies expected within a year.
Fourth, from among such officers those who are considered unfit for promotion should be excluded.
The re maining officers should be classified as "outstanding", "very good" and "good" on the basis of merit as determined by their respective records of service.
The selection list should then be pre (1)[1975]Supp.
S.C.R.491 (2) ; 4 1458SCI/76 34 pared by placing the names in the order of these three categories without disturbing the seniority inter se within each category.
Fifth, promotions should strictly be made from the selection list in the order in which their names are finally arranged.
The selection list should be periodi cally reviewed.
The names of those officers who have already been promoted otherwise than on a 'local or purely temporary basis and continue to officiate should be removed from the list and the rest of the names along with others who may now be included in the field of choice should be considered for the selection list for the subsequent period.
Several persons, mainly promotees from Class II to Class I as Income Tax Officers challenged in writ petitions field before several High Courts the correctness of the field of choice so determined by the Departmental Promotion Committee hereinafter referred to as the Committee on the basis of which the said selection list was prepared.
The Gujarat and the Andhra Pradesh High Courts delivered judg ments.
The other High Courts gave interim orders staying the operation of the selection list.
There are two appeals by special leave from the judgments of the Gujarat and the Andhra Pradesh High Courts.
There are also appeals by special leave from the interim orders of the High Courts because the questions involved are the same.
There were 112 vacancies of Assistant Commissioners.
The Government of India sent 336 names in the running order of seniority for consideration of the field of choice.
Out of those 336 names the Committee took 276 names in the running order of seniority.
The principal question for consideration is whether the field of choice determined by the Committee on the basis of which the Committee prepared the selection list is correct or not.
The Gujarat High Court held that the requirement of 10 years ' experience as Income Tax Officer for promotion to the post of Assistant Commissioner as laid down in the Govern ment of India letter No. C. 33(17) Admn.
I.I./49 dated 16 January 1950 prevailed while the Committee determined the field of choice and this requirement was violated because the Committee considered persons with 8 years ' experi ence for the field of choice.
The High Court further held that even if the requirement of 10 years ' experience was not a statutory rule the requirement was to be complied with in determining the field of choice unless people with such experience were not available in the seniority list of Class I Income Tax Officers.
What the High Court said was that if such people with 10 years ' experience were available in the seniority list only such people should be considered in the field of choice ignoring those in the seniority list who are senior to such persons but have less than 10 years ' experi ence as Income Tax Officers.
The second reason given by the High Court for holding the selection list to be incorrect is that under the letter dated 16 May 1957 the field of choice should have been 5 times the number of vacancies whereas the actual field of choice contained a much lesser number.
The third ground given by the High Court for holding the selec tion list 35 to be incorrect is that in the field of choice of Com mittee did not properly evaluate the merit of persons in the field of choice.
The section of persons in the selection list was to be selection on merit only and not seniority cum merit.
The fourth reason given by the High Court is that the date for determining the eligibility of officers for promotion to the post of Assistant Commissioner of Income Tax should be decided by the Committee by bearing in mind the two dates, namely, 21 December 1972 when this Court permitted provisional promotions and 29 November 1973 when Government made the second batch of ad hoc promotions, as the two terminals.
The principal contentions on behalf of the respondents are these.
First, promotions from amongst Income Tax Offi cers Class I Service to the post of Assistant Commissioner of Income Tax have to be made solely on the basis of merit.
The respondents relied on rule 18 of Chapter II(c) section 1 Vol.
II of the Office Manual in support of their contention.
Broadly stated rule 18 is that the promotion shall be strictly on merit and further that no one should ordinarily be considered for promotion unless he has com pleted at least 10 years ' service as income Tax Officer.
The respondents amplified their contention to mean that promotion to a selection post is to be made solely on the basis of merit and not on the basis of seniority cum merit.
The second contention of the respondents is that only such of the Income Tax Officers in Class I Service who had put in at least 10 years ' service as Income Tax Officers are eligible for being considered for promotion to the post of Assistant Commissioners.
This contention.
is also based on rule 18 and according to the respondents rule 18 means that the condition precedent for eligibility to be consid ered for promotion to the post of Assistant Commissioner is that an Income Tax Officer in Class I Service must have put in at least 10 years ' service as Income Tax Officer.
The respondents further contended that rule 18 was framed on 16 January 1950 and the letter dated 21 July 1950 addressed by the Central Board of Revenue to all Commission ers of Income Tax shows that the Government of India framed the rule with the approval of the Union Public Service Commission and the Ministry of Home Affairs.
The Govern ment case is that the rule was abrogated.
The respondents ' answer to the Government contention is that the entire correspondence relied on by the Government shows that the Ministry of Finance wanted to frame new rules of seniority.
The respondents also contend that the Ministry of Home Affairs gave approval to the framing of new rules of senior ity but gave No. direction with regard to the rule relating to the recruitment except stating that the said rule might be appropriately included in the relevant recruitment rules.
Therefore the respondents contend that the recruitment rule regarding 10 years ' experience continued whereas the senior ity rule stood modified in terms of the letter of M.C. Thomas dated 4 April 1964.
The respondents also rely on the affidavit dated 8 March, 1968 flied by M.C. Thomas in the Gujarat High Court in application No. 1365 36 of 1965, an affidavit of M.C. Thomas dated 21 May 1970 filed in the Delhi High Court in writ petition No. 196 of 1970, an affidavit of the respondents dated 5 August 1974 filed in the Gujarat High Court in support of the contention that the rule relating to 10 years ' service was in force at least from 21 May, 1970.
The respondents further contend that promotions to the post of Assistant Commissioners in the year 1964 and 1970 show that all promotees except 2 had completed at least 10 years ' service before being selected for promotion.
Even with regard to those two promotees the respondents submitted that both of them joined on 24 Octo ber, 1960 but they had been selected along with others in May 1960.
Therefore, those two officers were promoted along with their batch mates of May, 1960.
The third contention of the respondents is that rule 18 has the force of law.
It is said that under section 241 of the Government of India Act 1935 the Government was empow ered to make rules.
Pursuant to that power the Government of India made the rule.
The letters dated 16 January 1950 and 21 July 1950 written by the Government to the Commissioners of Income Tax referring to rule 18 were relied on by the respondents in support of their contention.
In the alterna tive, the respondents contended that the decision of the Government contained in the letter dated 16 January, 1950 was made by the Government of India in exercise of executive powers under section 8 of the Government of India Act 1935 read with item 8 of List I of the Seventh Schedule.
This order which had the backing of law was an existing law within the meaning of clause 10 of Article 366 of the Constitution.
In the further alternative the respondents contended that the rule contained in the letter dated 16 January, 1950 was incorporated in the Office Manual issued by the Government of India in exercise Of its executive power under Article 53 of the Constitution and therefore these instructions have the force of law.
It is also said by the respondents that the rule which affects promotions of the persons constitutes the conditions of service.
The fourth contention on the part of the respondents is that the use of the word "ordinarily" in rule 18 imposes an obligation on the Union Government not to consider an Income Tax Officer Class I who has not completed at least 10 years ' service as Income Tax Officer for promotion as Assistant Commissioner unless there are extraordinary circumstances.
It is said that the word "ordinarily" does not vest in the Government unfettered condition to follow or not to follow the rule.
It is also said that the use of the word "at least 10 years ' service" shows that the word "ordinarily" has been used to enable the Government to consider such of the Income Tax Officers who have put in more than 10 years ' service.
The respondents also contend that the Government proceeded on the basis that the rule relating to 10 years ' service did not exist after April 1964; and, therefore, it cannot be said that the Government departed from rule 18 because of extraordinary circum stances.
The fifth contention is that the selection has been made in complete violation of the rule framed by the Government of India for promotion to selection post as contained in the Office Memorandum 37 of the Ministry of Home Affairs dated 16 May, 1957.
This contention is expanded by submitting that the list should have contained names of at least 5 or 6 times the number of vacancies existing within a year and in view of the fact that there were 112 existing and 10 anticipated vacancies the Government of India should have sent to the Committee names of at least 560 officers.
The Committee should then have removed such names which were unfit for promotion and thereafter have classified the rest as outstanding, very good, and good on the basis of merit.
The respondents contend that the Government sent only 336 names for con sideration when the vacancies were more than 120 and the Government also ignored the rule of 10 years ' experience.
It is also said that the Committee ignored the names of 59 officers from consideration and classified only 144 officers out of the remaining 277 and prepared the list of 122 out of 144 officers.
The respondents further contend that though respondents No. 2 and 3 in Civil Appeal No. 2041 of 1974, namely, R.K. Desai and B. Srinivasan completed 10 years ' experience they were not included within the field of choice as officers senior to them had not completed 8 years of service as Income Tax Officers.
Therefore, rule 18 was violated.
The sixth contention of the respondents is that the entire selection was arbitrary and in violation of Article 16 of the Constitution.
It is said that if the rule re quiring 10 years ' experience had been followed only such of the persons who had put in 10 years ' service would have been in the field for selection.
It is said that the Government included Income Tax Officers who were direct recruits and who had put in less than 8 years ' service in the list but excluded promotees Income Tax Officers who had put in more than 8 years ' service as Income Tax Officers.
It is further said by the respondents that out of 122 per sons selected 111 are direct recruits and only 11 are promo tees.
Reference was made to the junior most person in the selection list Madan Mohan Joshi.
It is said that Madan Mohan Joshi was appointed as Income Tax Officer Class I on 5 July, 1965, and, therefore, he completed 9 years ' service at the time of selection.
The last person considered by the Committee is a direct recruit Rajeswar Rao Gnutam who was appointed on 8 July, 1966.
Again, it is said that from amongst the promotees Raghubir Singh the promotee who joined Class I Service on 1 May 1964 and had more than 10 years ' service was not placed in the field of choice.
The respondents, therefore, contend that promotee Officers who had put in more than 8 years ' service as Income Tax Officers were not included in the field of choice whereas direct recruits who had not completed 8 years ' service were in cluded in the field of choice.
The seventh contention of the respondents is that the eligibility of Income Tax Officers for the purpose of promo tion to the post of Assistant Commissioner should be consid ered either as on 21 October, 1972 or 21 March 1973 or 29 November 1973.
In support of that contention it is said that when the Government of India made an application for filling up certain posts this Court by order dated 21 Decem ber 1972 permitted the Government to fill in the posts on ad 38 hoc basis from amongst the eligible officers on the basis of continuous, length of service in Class I. Accordingly, by orders dated 21 March 1973, and 29 November, 1973, 59 and 48 officers respectively were promoted on ad hoc basis.
These officers were to, be replaced by regular selection.
The seniority list was confirmed by this Court by judgment dated 16 April 1974.
The respondents, therefore, contend that the Committee had to regularise aforesaid 107 promo tions, and the regularisation had necessarily to be done from the dates of original promotions on ad hoc basis.
It is said in this context that the eligibility of officers for the purpose of promotion must be considered either on 21 December 1972 or on 21 March 1973 or on 29 November, 1973.
The respondents also submit that the eligibility has refer ence to the date of vacancy and therefore only such of the persons who had the qualified service on the date of vacancy ought to be considered by the Committee.
Reliance was placed on the observations of this Court in Bishan Sarup Gupta 's case(1) that after the finalisation of the seniority list the department should consider the cases of all eligi ble officers for promotion on the basis of their records as on the date when they ought to have been considered by selection but who were not so considered.
The first question for consideration is whether the rule of 10 years ' experience was modified to 8 years ' expe rience.
The correspondence between the Central Government and the Union Public Service Commission between 30 January 1963 and 26 June 1969 shows that the principle for promotion as Assistant Commissioner is that no Income Tax Officer should ordinarily be considered unless he has completed 8 years ' service as Income Tax Officer.
The proposal for this change from 10 years to 8 years emanated from the Finance Ministry.
The Home Ministry stated that the rule does not strictly relate to the seniority rules in respect of As sistant Commissioners of Income Tax and should thus be included in the relevant Recruitment Rules, that is, Rules for selection for the post of Assistant Commissioner of Income Tax.
The Union Public Service Commission as will appear from the letter dated 31 May, 1963 agreed subject to proposed modification regarding the seniority of Assistant Commissioners of Income Tax.
It thus appears that the Finance Ministry, the Home Ministry and the Union Public Commission concurred with the change from the requirement of experience for 10 years to that of 8 years.
The requirement of 10 years ' experience as laid down in the letter dated 16 January, 1950 and the Office Manual published ' in 1955 thus came to be modified.
The only thing which is to be noticed is that no Rules under Article 309 were made.
The change from 10 years to 8 years ' experience was recorded by means of correspondence as an administrative instruction.
It is explicable that the letter dated 16 January, 1950 as well as the Office Manual published in 1955 was an administrative instruction.
The change from 10 years to.
8 years ' experience was not only given effect to in the field of choice but also, recog nized in the Committee meetings of September 1968, April/May 1970 and February, 1972.
In September 1968, 16 persons were over 9 years ' experience (1) [1975] supp.
S.C.R.491,506 39 but less than 10 years ' experience.
None of these persons was however selected to be placed on the selection list.
In April/May 1970, 14 persons were over 9 years experience but less than 10 years ' experience, and 24 persons were over 8 years ' experience only.
Out of those only 7 who were all over 9 years ' experience were selected to be placed in the selection list.
In 1972 the Committee considered 25 persons over 9 years ' experience but less than 10 years ' in experi ence, and 27 persons over 8 years ' experience.
Out of these only 10 persons who were all over 9 years ' experience were selected to be placed in the selection list.
In the Committee meeting of July, 1974 the selection list prepared did not have any person except 4 emergency commissioned officers who had less than 9 years ' experience.
The last person in the seniority list selected was M.M. Joshi bearing No. 967 in the seniority list.
8 years ' experience as a working rule for promotion was publicly announced by the Minister in Parliament on 11 June 1971.
It is rightly said by the Attorney General that administrative instructions are followed as a guide line on the basis of executive policy.
It is not necessary to put the same on record in so many words.
In Bishan Sarup Gupta vs Union of India & Ors.
1975 Supp.
SCR 491 when the quota rule which was statutory ceased to have statutory effect after 5 years but the Government followed the principles as a guide line it was upheld by this Court in the application of the principle from 1957 to 15 January, 1959.
In the present case the requirement of 8 years was not only followed as a guide line in practice but was also recorded in the correspondence between the Finance and the Home Ministries.
The High Court said that the requirement of 8 years ' experience was to be included in the appropriate Recruitment Rules and until that was done the High Court held that 10 years ' experience held the field.
The High Court failed to consider the true effect of the correspondence between the finance and the Home Ministries and the Union Public Service Commission.
The Ministry of Finance by its letter dated 30 January 1963 stated that the condition of 8 years ' service for promotion was proposed to be retained.
The Home Minis try by its letter dated 20 February, 1963 pointed out that the requirement of 8 years ' experience for promotion did not strictly relate to seniority rules relating to Assistant Commissioners of Income Tax and should be delinked from such rules and should be appropriately included in the relevant Recruitment Rules.
Thus the Home Ministry and the Union Public Service Commission agreed in principle to the re quirement of 8 years ' experience and the Finance Ministry in practice changed the requirement of 10 years ' to 8 years ' experience.
The letter of the Finance Ministry proposing the retention of the requirement of 8 years experience was only in Grade I.
The minimum experience in Grade I proposed by the Board was approved by the Secretary as well as the Minister.
The High Court referred to the affidavits filed by M.G. Thomas in other proceedings.
In one of the affidavits affirmed by Thomas 40 on 8 March 1968 and referred to by the High Court in Special Civil Application No. 1365 of 1965 in the Gujarat High Court in paragraph 5 thereof Thomas said as follows: "The Depart mental Promotion Committee which met sometime in August, 1949 recommended that no officers should be promoted as Assistant Commissioners of Income Tax until he had worked for not less than 10 years as Income Tax Officers.
The Government of India agreed with the recommendation of the Departmental Promotion Committee that it was necessary in the interest of efficiency that the Assistant Commissioner of Income Tax should at least have 10 years of service as Income Tax Officer so that for the post ok Assistant Commissioner of Income Tax matured and seasoned officer may be obtained.
For arriving at the decision, the Govern ment of India was also influenced by the recommendation of Income Tax Investigations Commission".
The High Court also referred to paragraph 9 in the said affidavit of Thomas where he said as follows: "It can thus be seen that the seniority rules for Assistant Commissioner of Income Tax were mainly framed due to the situation created by the introduction of Income Tax Service Class I on an All India basis and the requirement of a minimum period of 10 years of service (later on reduced to.
8 years ' service) (as a requi site condition for promotion) this requirement of minimum service resulted in a senior Income Tax Officer who had not completed the required length of service being passed over by a junior Income Tax officers, who had completed the. required service.
To safeguard the interest of such senior Income Tax Officer rule 1 (iii) (b) meaning thereby 10 years ' rule was introduced which enabled the senior officers to regain their seniority on subsequent promotion".
The High Court also referred to the affidavits of Thomas in Civil Writ Petition No. 196 of 1970 in the Delhi High Court.
M.G. Thomas was an Under Secretary in the Ministry of Finance in 1964.
In the affidavit affirmed by Thomas in Writ Petition No. 196 of 1970 in the Delhi High Court he dealt with paragraph 39 of the petition of Bishan Sarup Gupta where it was said that paragraph 18, of section 1, Volume 1 of the Office Manual clause (b) mentioned about the eligibility of 10 years of minimum service before an Income Tax Officer would be considered for promotion to the post of Assistant Commissioner.
The High Court said that Thomas in his affidavit in reply had admitted the said statements and concluded that of 8 years ' rule had been introduced Thomas would not have missed to mention the same in his affidavit.
The High Court also referred to two features.
First, that it was not a proposal of anew rule of 8 years in place of existing rule of 10 years; secondly, it was an assumption that the existing rule prescribed the minimum period of 8 years ' service.
The High Court further referred to the Delhi High Court proceedings in Writ Petition No. 196 of 1970 where Counsel for the Union said that the Government expected new rules to be framed under Article 309 to limit the field of choice to those who had 8 years ' service to their credit as Income Tax Officers.
The High Court read this argument of counsel for the Union in the High Court to concede that no change in the rule of 10 years ' service as Income.
Tax Officer was made so as to reduce the period from 10 years to 8 years.
41 The Central Board of Revenue as appears in No. F. 1/19/60 Ad.
II at a meeting on 2 May, 1959 approved the idea of laying down the.
minimum period of service uniformly for the three wings of the Central Board of Revenue for purposes of determining the eligibility of officers for promotion.
It was decided that before an officer was promoted to a higher post he must have put in a period of minimum service as follows: For promotion to Deputy Collector/Assistant Commissioner (Grade Rs. 1000 1400) minimum service pre scribed was 8 years ' service in Class I posts.
For promo tion to Collector (Grade Rs. 1300 1600) the minimum serv ice prescribed was 12 years in Class I post out of which at least two years should be in the grade of Deputy Collector.
For promotion to.
the post of Collector (Grade Rs. 1600 1800) the minimum service prescribed was 14 years in Class I posts provided that for promotion as Collector of Central Excise (scale Rs. 1600 1800) the officers should have worked at least two years in the scale of Rs. 1300 1600.
For promotion to Collector Grade I/Commissioner Grade I (scale Rs. 1800 2000) the minimum service prescribed was 16 years in Class I posts.
For promotion to Selection Grade posts of Collectors/Commissioners the minimum service prescribed was 20 years in Class I posts.
The Secretary in the note mentioned that he would prefer the alternative of keeping the rule and relaxing it in suitable cases.
This note of the Secretary shows that he preferred the retention of the rule in the other 4 grades, namely.
Collector Grade Rs. 1300 1600, Collector Grade Rs.1600 1800, Collector Grade I/Commissioner Grade I Grade Rs.1800 2000 and Selection Grade Posts of Collectors/ Com missioners.
That is apparent from the fact that the Board suggested the retention of minimum service in Grade 1(Assistant Commissioners) but not in the other four grades including the Selection Grade.
The Minister preferred the deletion of the rule about Selection Grade.
Thus the mini mum experience in Grade I proposed by the Board was approved by the Secretary as well as the Minister.
The minutes of the meeting of the Central Board of Revenue of 22 October 1960 show that the Board of Revenue decided 'that the minimum service of 8 years in Class I Service may be prescribed in the case of Deputy Collector/Assistant Commissioners (Grade Rs.1100 1400).
The affidavit evidence of Thomas shows that the minimum period of 10 years was later reduced to 8 years.
The affi davit does not show that the requirement of 10 years ' serv ice was maintained.
In the Delhi High Court proceedings Bishan Sarup Gupta in his petition made reference to cer tain administrative instructions.
Thomas in answer to those paragraphs did not have any occasion to say anything otherwise.
Further counsel for the Union in the Delhi High Court merely stated that the Government was expecting rules to be framed under Article 309.
This does not mean that the requirement of 8 years ' experience as an administrative practice did not prevail.
The High Court was in error in treating the affidavit evidence of Thomas in other proceed ings as a statement of fact that 8 years ' rule had not been introduced.
This affidavit evidence in other proceedings is torn 42 out of context and is misread by the High Court without going into the question as to whether such affidavit evi dence is admissible in evidence.
It is apparent that the entire affidavit evidence as well as the submission on behalf of the Union is that the requirement of 10 years ' experience be replaced by 8 years.
Administrative practice as indicated in the Department Promotion Committee meetings and the Minister 's statement in Parliament supported that contention of the Union.
It is a question of construction of correspondence as to whether 10 years ' rule was replaced by 8 years ' rule.
The fact that no rules under Article 309 were framed does not detract from the position that the previous administrative instruction of 10 years ' experience was modified to 8 years ' experience.
It was suggested on behalf of the respondents that the various affidavits and documents asserted that the require ment of 10 years ' experience had been abrogated and it was not open to the Government to take the stand that require ment of 10 years ' rule was modified or changed.
The conten tion is without any substance because the consistent posi tion on behalf of the Union has always been that the re quirement of 10 years ' experience was modified to 8 years and the Gujarat High Court considered the question whether 10 years ' experience was abrogated or modified.
The second question is whether the requirement of 10 years ' experience was a statutory rule.
The High Court held that the requirement of 10 years ' experience is not a statutory rule.
Counsel for the respondents contended that the requirement of 10 years ' experience is statutory because the letter dated 16 January 1950 is by the Government of India and the Government of India has authority to frame rules and one of the letters dated 21 July, 1950 referred to it as a formal rule.
The contention is erroneous because there is a distinction between statutory orders and adminis trative instructions of the Government.
This Court has held that in the absence of statutory rules executive orders or administrative instructions may be made.
(See Commissioner of Income Tax Gujarat vs
A. Raman & Company(1).
The letter dated 16 January 1950 written by an Under Secretary in the Ministry of Finance does not prove that the requirement of 10 years ' experience for promotion to the post of Assistant Commissioner was a rule made by the Gover nor General or any person authorised by him under section 241 (2) of the Government of India Act, 1935.
Furthermore, there is no basis for any authentication under section 17 of the 1935 Act in the letter of 16 January, 1950.
In the preface to the Manual published in 1955 it is specifically stated that Vol.
I of the Manual contains statutory rules and Vol.
II contains administrative instructions.
The requirement of 10 years ' experience is in Vol.
II of the Manual.
In S.G. Jaisinghani vs Union of India & Ors.(2) it is stated at pp.
717 718 that the quota fixed by the Government in its letter dated 18 October, 1951 must be deemed to be fixed in exercise of the statutory (1) (2) ; 43 power under Rule 4 of the Recruitment Rules.
There is no such statutory rule under which the letter of 16 January, 1950 was written, Counsel on behalf of the respondents contended that the requirement of 10 years ' experience laid down in the letter dated 16 January, 1950 had the force of law because of Article 313.
Article 313 does not change the legal charac ter of a document.
Article 313 refers to laws in force which means statutory laws.
An administrative instruction or order is not a statutory rule.
The administrative in structions can be changed by the Government by reason of Article 53(1)(a) itself.
The High Court said that even if the requirement of 10 years ' service is not statutory, it is binding on the Gov ernment and is a condition of service.
Counsel for the respondents contended that the word "ordinarily" in the rule imposes an obligation on the Government not to consider any Income Tax Officer with less than 10 years ' experience for promotion except in extraordinary circumstances.
The requirement of 10 years ' experience on the face of it con fers a discretion on the authorities to consider Income Tax Officers if according to.
the authorities the circumstances so require.
What the circumstances are or should be are left entirely to the decision of the authorities.
The Central Board of Revenue by a letter dated 21 July, 1950 a few months after the letter dated 21 July, 1950 a few months after the letter dated 16 January, 1950 which spoke of 10 years ' experience stated that the insistence on a minimum period of experience, cannot be regarded as affecting the conditions of service.
In the letter dated 21 July, 1950 it was said that the requirement as to 10 years ' experience is sufficiently elastic and all Income Tax Officers with more than 9 years ' experience could be considered for promotion.
The letter dated 21 July, 1950 was referred to by this Court in Union of India vs Vasant Jaygram Kamik & Ors(1).
It appears in that case that in November, 1951 the case of officers who had completed 9 years ' gazetted service were considered and the Committee further decided to consider for promotion in the near future officers who had completed 8 years of service before 31 December, 1951.
In 1953 officers who had completed 8 years ' service were considered for promotion.
The expression "ordinarily" in the requirement of 10 years ' experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons.
Administrative instructions if not carried into effect for good reasons cannot confer a right.
(See P.C. Sethi & Ors.
vs Union of India & Ors.
The requirement of 10 years ' experience cannot be considered by itself.
It is to be read along with administrative instructions of 16 May, 1957.
The reason is that the requirement of 10 years ' experience is for being considered for promotion.
In para graph 2 of the letter of 16 May, 1957 containing the said instructions it is said that the Committee should first decide the field of choice.
namely, the number of eligible officers awaiting promotion who should be considered to be included in the seniority list provided that an officer of outstanding merit may be included in the list even.if he is outside the normal List.
(1) ; (2) ; 44 For the foregoing reasons our conclusions are these: First 10 years ' experience was modified to 8 years ' experi ence.
Second there was no statutory rule requiring 10 years ' experience.
Third the facts and circumstances merit ed the exercise of discretion which was bona fide exercised by determining the field of choice.
Fourth there was no deviation from 10 years ' experience because of the modifica tion to 8 years ' experience.
Fifth there could not be insistence on 10 years ' experience as conditions of service.
The next question is what should have been the field of choice.
The two groups of Income Tax Officers in Class I, namely, the direct recruits and the promotees have always found that the field of choice has been prepared strictly on the basis of running seniority in the seniority list of Income Tax Officers Class I.
In the three decisions of this Court relating to these officers Jaisinghani 's case, Bishan Sarup Gupta 's case and Bishan Sarup Gupta 's case (supra) it will be seen that since 1962 there has been a long fight between direct recruits and promotees mainly in respect of seniority list of income Tax Officers Class I.
This strug gle regarding seniority would have hardly any meaning unless the two groups fought to gain higher positions in the Seniority List only for the purpose of being in the field of choice for consideration for promotion to the post of As sistant Commissioner.
if this was not so and if only a cer tain number of years ' requirement was the only consideration for being in the field of choice, this requirement would have.
been fulfilled in any case without a higher place in the seniority list.
From 1963 the field of choice has always been in a running order of seniority.
This has been the administrative practice for over 10 years.
There were 112 vacancies and 10 anticipated vacancies in 1974.
The Committee was to make a select panel of 122 offi cers.
If the field of choice has to be prepared on the basis of running seniority, and if 10 years ' experience had been adhered to, there would not have been more than 95 officers in the field of choice although the number of vacancies was 122.
This fact alone will entitle the author ities to deviate from the rule of 10 years ' experience.
By reason of the violation of the quota rule since 1952 benefiting the promotees this Court issued the mandamus in Jaisinghani 's case (supra).
The collapse of the quota rule and seniority rule from 16 January, 1959 led to the judgment of this Court dated 16 August 1972 in Bishan Sarup Gupta 's case (supra).
The introduction of the roster system of 1 direct recruit and 1 promotee being placed alternately in the order of seniority with effect from 16 January, 1959 was upheld by this Court in the judgment dated 16 April, 1974 in Bishan Sarup Gupta 's case (supra).
As a result oF the seniority list being upheld by this Court by the deci sion dated 16 April, 1974 many promotees lost their earlier places in the Seniority List.
This Court on 16 April, 1974 in Bishan Sarup Gupta 's case (supra) at page 114 of the report said "In the case before us in the absence of a rule determining inter se seniority between the two classes of Income Tax Officers, there is really no integration of the service, which is unavoidably necessary for the purpose of effective promotions.
One cannot speak 45 of promotions from a cadre unless it is fully integrated.
" There was a change in the seniority list from what prevailed at least in 1952.
The requirement of 10 years ' experience could not be given effect to in such a changed situation and the expression "ordinarily" would hardly apply to such a changed situation without destroying the integration and restoring to the promotees the position which they had enjoyed in the past with the Quota Rule and the Seniority Rule and which they lost as a result of the last decision of this Court dated 16 April, 1974.
If the respondents ' contention that the field of choice shall be restricted to 10 years ' experience only and the field of choice should have been at least five times the number of vacancies, the result would have been that out of 560 persons in the field of choice, 474 persons would have been promotees and 86 persons would have been direct re cruits and the last direct recruit in the seniority list would have been No. 873 and No. 874 to No. 1922 would have been all promotees.
If the above basis suggested by the respondents were followed 429 persons all direct recruits and all senior officers in the seniority list would have been ignored in the field of choice.
That would be unjust, unfair and upsetting the decision of this Court dated 16 April, 1974.
In the letter of 16 May 1957 it is stated that the field of choice wherever possible should extend to 5 or 6 times the number of vacancies expected within a year.
The letter contained administrative instructions from the Home Ministry generally to all Ministries and was not meant specially for the Board of Revenue.
These administrative instructions have been changed in the matter of promotions from Income Tax Officers to Assistant Commissioners at least from 1963 by the administrative practice of having in the field of choice generally three times the number of vacancies.
In the Committee meeting held on 16 March, 1963 the Committee considered the names of first 33 eligible Income Tax Offi cers in order of existing seniority for 11 vacancies.
In the meeting of the Committee held on 26 and 27 August, 1963 the Committee decided to consider the cases of 30 officers in order of seniority for 10 vacancies.
In the Committee meeting held on 3 March, 1964 the Committee considered for 21 vacancies the names of 60 persons in order of seniority.
At the Committee meeting held on 5 and 7 December, 1964 for 18 vacancies the Committee decided to consider the cases of 60 officers in order of seniority,.
At the meeting held on 4 July, 1965 the Committee considered 60 Income Tax Officers in order of seniority for promotion to 20 vacancies.
At the Committee meeting held on 4 and 6 December, 1965 the Commit tee considered 122 persons in order of seniority for 45 vacancies.
In December, 1965 the Committee considered 114 senior most Income Tax Officers and 48 were promoted as Assistant Commissioners.
At the meeting held on 17 May, 1966 the Committee considered the case of 65 officers and approved the promotion of 48 officers.
At the meeting held on 16 and 17 September, 1968 the Committee considered 240 persons for promotion to 90 posts.
In September, 1968 the Committee considered the cases of 16 officers who had less than 10 years ' experience.
The Committee in February 1969 considered 61 persons for 20 posts.
In September, 1969 the Committee considered 105 persons for promotion to 35 posts.
46 There is a note made by Thomas in the month of February, 1970 in F. No. 20/2170 Ad.
VI to the effect that if officers with less than 8 years ' service and their juniors are ex cluded from the list of officers to by considered by the Committee for 90 vacancies arising during the year only 193 officers will be available.
This is said to be less than three times the number of vacancies but this could not be helped unless junior officers are considered over the head of their seniors.
The number of such juniors officers with 8 years ' service is also limited, namely, 11.
In the circum stances, the selection was made from 193 officers.
In April, 1970 the Committee had to select 80 persons for promotion.
They desired that 240 names should normally be considered.
The Members however stated that the.
Ministry had already furnished the names of 193 eligible officers and there were no more eligible officers who could be consid ered.
The Committee accordingly considered those 193 offi cers in order of seniority.
In April and May 1970 the Committee considered the cases of 38 persons with less than 10 years ' experience.
In 1972 there were 84 vacancies and 10 more vacancies were likely to arise.
Therefore for 94 selection posts the field of choice should normally have been 3 to 5 times the number of vacancies.
It was found that there should have been at least 300 officers.
There were 213 officers with 8 years ' experience.
There were some promotees with more than 8 years ' experience but they were junior to the direct recruits.
As the direct recruits had not completed 8 years ' service their juniors were not considered for promotion over them.
In the background of these facts and circumstances it was not possible to have 5 or 6 times the number o.f vacan cies in the field of choice for the simple reason that the Committee required 8 years ' experience for promotion to the post of Assistant Commissioner.
If the field of choice had to be based on running seniority the Committee could rightly only have 276 officers in the field of choice in the present case.
The next question is whether the Committee evaluated the merit of persons in the field of choice.
The High Court held that in the field of choice the evaluation of merit of persons was not properly done.
The decision of the High Court is wrong for the following reasons.
The letter dated 16 May, 1957 indicates that the Committee was first to decide the field of choice.
The cardinal feature which is to be kept in the forefront is that the field of choice is based on running seniority in the seniority list and evalua tion of merit does not come into picture for deciding the field of choice.
Paragraph 3 of the said letter states that those in the field of choice who are considered unfit should excluded from consideration.
Under paragraph 4 of the letter evaluation of the remaining officers on the basis of merit has to be done by classifying the officers under three different categories,namely, 'outstanding ', 'very good ' and 'good '.
Paragraph 4 of the letter states that the selection list is to be prepared by placing the names of officers in the said three categories, without disturbing the seniority inter se within each category.
47 In the present case in view of 112 actual vacancies the Government sent 336 names for the field of choice, that is, three times the number of vacancies.
Since 1963 the Commit tee has been receiving from the Government the names of persons forming three times the number of vacancies.
The 336 names sent by the Government were in the running order of seniority between S.M. Islam No. 155 in the seniority list and R.N. Dave No. 1186 in the seniority list.
Under paragraph 2 of the letter dated 16 May, 1957 it is the function of the Committee to decide the field of choice.
The Committee proceeded on the basis of 8 years ' experience and thus could not possibly have in the field of choice any name from No. 1131 onwards because every alternate number thereafter had less than 8 years ' experience.
The Committee stopped at No. 1123.
The Committee at the meeting held on 23, 24 and 25 July 1974 assessed the merits of 145 persons in order of seniori ty first.
After such assessment the Committee found three officers No. 1, 30 and 109 in the list as not yet fit and excluded them.
The Committee also excluded 4 officers whose findings were in sealed cover or whose reports were not yet complete (No. 2, 3, 6 and 138 in the Committee List).
These 7 officers were excluded from further consid eration for the selection list.
In accordance with para graph 3 of the letter 16 May, 1957 the Committee considered the remaining 138 officers and assessed their merits and put them in three categories.
The Committee found only one officer "outstanding", namely No. 16 in the list, 114 offi cers "very good" and 7 Scheduled Castes/Scheduled Tribes officers were 'good '.
These 7 Scheduled Castes and Sched uled Tribes officers were No. 21, 24, 26, 90, 91, 93 and 94 in the list.
The respondents contended that these 7 Sched uled Castes/Scheduled Tribes officers should have been given a grade higher than the grade assessed by the Committee because of the Home Ministry Instructions dated 11 July, 1968.
The respondents ' contentions are incorrect for these reasons.
In paragraph 2 of the Home Ministry instructions dated 26 March, 1970 on the subject "Concessions to Sched uled Castes and Scheduled Tribes in posts filled by promo tion Class I Services/ posts" it was laid down inter alia that the Scheduled Castes/Scheduled Tribes officers, who were senior enough in the zone of consideration for promo tion so as to be within the number of vacancies for which the selection list has to be drawn, would be included in that list provided they are not considered unfit for promo tion.
In paragraph 1 of these instructions, reference was made to the Home Ministry instructions dated 11 July, 1968.
It would be found from those instructions as 'also the Home Ministry instructions dated 26 March, 1970 that the July, 1968 instructions applied in the case of promotions from Class III to Class II and Within Class II and from Class II to the lowest rank or category to Class I but had no appli cation in respect of promotion within Class I.
The Committee found No. 16 to be 'outstanding ', 114 (No. 2 to 115) 'very good ' and 7 Scheduled Castes/Scheduled Tribes officers 'good. ' and they were to be included in the selection list vide Home Ministry instructions dated 26 March, 1970.
The Committee next assessed the merit of the rest of the 276 officers to ascertain whether 48 any of them was 'out standing '.
If any one among these remaining officers was not found 'outstanding ' but was only 'very good ' he would not come within the selection list because the selection list was prepared, after evaluating the merits of the officers on the basis of seniority in the seniority list in accordance with the fetter dated 16 May, 1957.
Paragraph 4 of that letter was followed by the Committee along with the Home Ministry instructions.
It would not be necessary for the Committee after having con sidered 145 to put the others in the category of 'very good ' when the Committee assessed their merits and found them to be not 'outstanding '.
After 122 senior officers were as sessed and the Committee found that no other officers junior to them could be assessed to the higher category namely, 'outstanding ' it would be fruitless exercise to find out who among these officers were very good ' or 'good ' or 'not yet fit '.
The reason is obvious.
Those in the selection list of 122 who had been found to be 'very good ' could not be supplanted by others who were 'very good ' Only 'outstand ing ' persons who would be junior to the category of 122 'very good ' would surpass the category of 'very good '.
Therefore the Committee rightly considered the cases only to find ' out whether there was any one outstanding and the Committee found none of them to be 'outstanding '.
The Government sent the names of 336 officers in the running order of seniority.
Out of 336 the Committee found 276 to be fit for the field of choice.
The Committee found 1 'outstanding ', 114 'very good ' and 7 Scheduled Castes/Tribes 'good '.
The respondents contended that the rest 59 were not at all considered by the Committee.
This contention is not acceptable for these reasons.
From No. 1131 in the seniority list every alternate number was an officer with less than 8 years ' experience.
Under the letter of 16 May 1957 it is the Committee and not the Gov ernment which decides the field of choice.
When the Commit tee found according to the running seniority No. 1131 onwards could not be in the field of choice the Committee did not put the names of the 59 officers in the field, of choice.
The question of the evaluation of the merits of these 59 officers did not, therefore, arise because first the seniority list was Considered by the Committee and second the Committee took into consideration only those who were in the seniority list and fulfilled 8 years ' experi ence.
It is wrong to hold that because the Government sent the names of 336 persons for consideration by the Committee the field of choice consisted of 336 persons.
The field of choice is to be determined by the Committee.
The Committee considered 276 names as fit to be included in the field of choice.
It is erroneous to suggest that there were 336 names in the field of choice.
The field of choice consist ed.
of 276 names as determined by the Committee whose juris diction it was to determine.
The Committee considered upto No. 1123 in the seniority list to be in the field of choice.
Officers from 1124 to 1130 were not included by the Commit tee either because they had retired or joined the Indian Administrative Service and in any event no complaint has been made on their behalf.
The Committee found that from 49 No. 1131 onwards every alternate officer had not completed 8 years ' service and therefore they could not be put in the field of choice according to the Committee.
The contention of the respondents that there were 336 officers in the field of choice and the Committee did not consider all the 336 persons unmeritorious.
The respondents next contended that persons bearing No. 877, 879, 881 and 883 in the seniority list had been put on the selection list although they had less than 8 years ' experience.
There is no substance in the ' contention for the following reason.
These 4 officers were taken on the ground that they were ex military officers recruited to the Income Tax Department in 1968 and were deemed to have been recruited in 1964 by virtue of the Ministry of Home Affairs Notification dated 4 October, 1967.
Another submission was made on behalf of the respondents that after the Committee had put different persons in three categories 'outstanding ', 'very good ' and 'good ' the Commit tee should have further evaluated the merit of all officers inter se within each of the said three categories.
This submission is contrary to the specific provision of para graph 4 of the letter dated 16 May, 1957.
Further within the category of 'very good ' there could not be any further intra specific assessment of those who were 'very good '.
A criticism was made by the respondents that the assess ment was to be only on merit and not seniority cure merit.
This contention is wrong.
Paragraph 2 of the letter of 16 May, 1957 states that the field of choice is to be decided by the Committee.
No question of merit arises in deciding the field of choice.
The field of choice is only on the basis of running seniority.
The question of merit arises after the field of choice is decided.
The selection was correctly done strictly on merit in accordance with para graphs 3 and 4 of the letter dated 16 May. 1957.
The Commit tee decides the field of choice in the running order of seniority.
The Committee excludes names from the field of choice who are considered unfit for promotion.
The remaining officers are classified as 'outstanding ', 'very good ' and 'good ' on the basis of merit.
The selection list is pre pared by placing the names in the order of these three categories.
That inter se seniority of officers in the selection list under each category is not disturbed.
These are the instructions in the aforesaid letter.
It will thus be. seen that seniority is the sole criterion for determin ing the field of choice in the running order of seniority and merit is the sole criterion for putting the officers in the selection list in each category according to merit.
Finally the contention of the respondents is that the date for determining the eligibility of officers for promo tion to the posts as Assistant Commissioners should have been decided by the Committee by bearing in mind the two dates namely, 21 December 1972 and 29 November 1973.
21 December 1972 is the date when this Court permitted the Union Government to make ad hoc promotions.
21 March 1973 and 29 November 1973 are the two dates when the Central Board of Direct Taxes promoted 59 and 48 officers respec tively.
This Court in the order dated 21 December, 1972 stated that the Government would be entitled to appoint people in order of seniority determined according to the date 5 1458SCI/76 50 Of continuous officiating appointment in Class I subject to the suitability which would be decided by the Central Board or Direct Taxes.
This order was made without prejudice to the contentions of the parties or their rights in the ap peals.
Pursuant to the interim order of this Court the Government made two orders dated 21 March 1973 and 29 Nov ember 1973 provisionally promoting 59 and 48 officers re spectively.
In each of the Government orders it is specifi cally stated as follows: "The above promotions are purely ad hoc and have been made on the basis of the suitability as decided by the Central Board of Direct Taxes in terms of directions issued by this Court in their order dated 21 December 1972.
These promotions will not confer any claim for continued "officiation" (sic) in the grade of Assistant Commissioner of Income Tax or for seniority in that grade.
Appointments against these posts will eventually be made on the basis of the revised list of seniority of Income Tax Offices Class I as finally approved by this Court and on selection by a duly constituted Departmental Promotion Committee to be convened in accordance with the prescribed procedure.
The promotions ordered will not establish any claim for eligibility or for selection on merit by a proper ly constituted Departmental Promotion Committee when the same is convened".
It is manifest from the order of this Court and the two orders made by the Government pursuant to this Court 's order that these 107 promotions were purely provisional or ad hoc and were made by the Central Board of Direct Taxes and not by the Committee which is the authority for determining promotions.
Further these provisional promotions were not made in conformity with the letter of 16 May 1957.
It is distinctly stated in the aforesaid two Government orders that appointments against these posts will eventually be made on the basis of revised seniority of Income Tax Offi cers Class I as finally approved by this Court and on selec tion by a duly constituted Departmental Promotion Committee to be convened in accordance with the prescribed procedure.
On 9 February 1973 the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973 were made under Article 309 See Bishan Sarup Gupta 's case (supra).
The revised seniority list of Income Tax Officers Class I was made on the basis of the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973 and was ap proved by this Court on 16 April, 1974.
See Bishan Sarup Gupta 's case (supra).
The selection list was made by the Committee after it met on 23, 24 and 25 July, 1974.
Under paragraph 2 of the letter dated 16 May, 1957 the Committee was to decide the field of choice by including therein eligible officers awaiting promotion.
This means that whether an officer is eligible or not should be decided with reference to the date of the Committee meeting.
This has always been done at all the Committee meetings.
The respondents contended that the regularisation of 107 promotees had to be done from the date of original promo tions on ad hoc basis.
In this connection, the respondents relied on the observations of this Court in Bishan Sarup Gupta 's case (supra) at p. 506 of the report.
The observa tions relied on are that after the fresh seniority 51 list is made in accordance with the directions given by this Court in Bishan Sarup Gupta 's case (supra) it would be open to any direct recruit or promotee to point out to the de partment that in the selection made to the post of Assistant Commissioner from 1962 onwards he, being otherwise eligible, is entitled on account of the new seniority given to him to be considered for promotion to the post of Assistant Commis sioner.
The observations of this Court in Bishan Sarup Gupta 's case (supra) are that if as a result of the fresh seniority list it is found that any officer was eligible for promotion to the post of Assistant Commissioner on account of his place in the new seniority list, the department might have to consider his case for promotion on his record as on the date when he ought to have been considered, and if he would be selected his position will be adjusted in the seniority list of Assistant Commissioners.
The object is to see that the position of such a person is not affected in the senior ity list of Assistant Commissioners because he is actually promoted later pursuant to the new seniority list, although according to the new seniority list itself he should have been promoted earlier.
The observations do not mean that although the Committee can meet for the selection of offi cers for promotion to the post of .Assistant Commissioner only after the seniority list is approved by this Court, the selection would be deemed to be made at the time when a vacancy in the post of Assistant Commissioner occurred and the eligibility of officers for selection will be determined by such deemed date of selection.
No employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurs.
Government has the right to keep the vacancy unfilled as long as it chooses.
In the present case, such a position does not arise because of the controversy between two groups of officers for these years.
The seniority list which is the basis for the field of choice for promotion to the post of Assistant Commissioner was approved by this Court on 16 April, 1974.
Promotions to the post of Assist ant Commissioners are on the basis of the selection list prepared by the Committee and are to be made prospectively and not retrospectively.
For the foregoing reasons the judgments and orders appealed against are set aside.
The selection list made by the Departmental Promotion Committee forming the subject matter of these appeals is held to be correct, lawful and valid.
Parties will pay and bear their own costs.
V.P.S. Appeals allowed.
| Section 16(1)(a)(i) of the , provides inter alia that, if any person whether by himself or by another person on his behalf stores or sells any article of food, which is adulterated or misbrand ed,he shall, in addition to the penalty he may be liable under section 6, be punishable which imprisonment for a term which shall not be less than 6 months, etc.
The first proviso to the sub section provides that if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is adulterated under section 2(i)(1) or misbranded under section 2(ix)(k), the Court may, for any ade quate and special reasons, impose a sentence of imprisonment for a term less than 6 months.
Section 17(1) provides that where an offence under the Act has been committed by a firm every person who at the time the offence was committed was incharge of or responsible for the conduct of the business of the firm shall be deemed to be guilty of the offence.
The proviso to the sub section states that nothing contained in the sub section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission.
Under section 17(2) notwithstanding anything contained in sub section
(1) where an offence under the Act has been committed by a firm and it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of a partner, such partner shall be deemed to be guilty of the offence.
In the present case accused 2 and 3 were partners carry ing on the business of a small restaurant (accused 1).
The Food Inspector visited the restaurant and noticing some milk kept for sale enquired about its quality.
Accused 3 told him that it was cow 's milk.
The 2nd accused was then not present in the restaurant.
The Food Inspector then bought some of the milk from the 3rd accused and sent it to the Public Analyst after complying with the statutory formali ties.
The Public Analyst reported that the milk was buffa lo 's milk, that there was deficiency of fat and that the milk contained added water.
The three accused were charged with the offence punishable under section 7(i) and (ii) and section 16(1A)(ii).
They pleaded guilty and were sentenced to pay a fine.
On appeal by the State, the High Court, holding that the accused cannot invoke the proviso to section 16(1)(a)(i) enhanced the sentence on the 2nd and 3rd accused to the minimum term of imprisonment of 6 months.
Dismissing the appeal to this Court, HELD: (1) The Probation of Offenders Act is not applica ble to the accused in the circumstances of the case.
[109 G] (2) Addition of water amounts to adulteration within the meaning of section 2 (i) (b) (c) or (d).
[108 E] (3) To earn the eligibility to the benefit of the provi so to section 16(1)(a)(i) the accused must establish not only that his ease fails positively under the offences speci fied in the said proviso, but negatively, that his acts do not attract any of the non proviso offences in section 16(1).
The application of the proviso depends on whether the adultera tion or misbranding of the article is of the species exclu sively covered by section 2(i)(1) or section 2(ix)(k).
In judicial construction, the consumers ' understanding of legislative expressions is relevant and so viewed, 'Cow 's milk ' is different from 'buffalo 's milk '.
The misbranding therefore falls under section 2(ix)(c) which provides that an article shall be deemed to be misbranded if it is sold by a name which belongs to another article of food, 103 and does not fall under section 2(ix)(k).
Therefore, the exclu sion of the first proviso and the conviction of all the accused under section 16(1)(a) are justified.
[106 C; 107C; 109D] Murlidhar vs State of Maharashtra and Prem Ballabh vs State (Delhi Admn.) Criminal Appeal No. 287 of 1971 decided on 15 9 76, followed.
(4) The 2nd accused however is not guilty of selling the misbranded article.
The liability of a partner depends on the application of section 17(1) or (2).
Section 17(2) is not applicable to the absent 2nd accused as there is no evidence to prove the required mens rea set out in the sub section.
Though section 17(1) applies, the second accused would not be guilty of this charge because of the proviso to that sub section.
The evidence shows that the second accused was absent at the time of the sale, that the milk was bought from the bazar by the servant in the restaurant and that it was not as if the two accused were palming off buffalo 's milk and Cow 's milk, but the particular representation by the 3rd accused was an adventitious One, made by him on his own on the spot.
[109E F; 110 B] [The Public Analysts report should not be prefunctory giving a few mechanical data.
It should help the Court with something more of the process by which his conclusion has been arrived at].
|
Appeals No&323 and 324 of 1956.
Appeal from the judgment and orders dated April 27, and July 13, 1956, of the Madras High Court in Writ Appeals Nos.
42 and 88 of 1956 arising out of the orders dated March 23, and July 9, 1956, of the said High Court in Writ Petitions Nos. 333 and 564 of 1956.
A. V. Viswanatha Sastri, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellant.
Daphtary, Solicitor General of India,, R. Gan.
pathy Iyer and R. Gopalkrishnan, for respondents Nos. 3 and 4.
665 1957.
February 19.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are appeals against the judgment of the High Court of Madras on a certificate given under article 133 (1) (c) of the Constitution, and they raise a question of some importance as to the true legal character of a permit when it is renewed under the provisions of the (IV of 1939) hereinafter referred to as the Act.
In order to appreciate the contentions of the parties, it is necessary to state the material facts leading up to the present dispute.
Towards the end of 1952, the appropriate authorities under the Act decided to grant two additional permits for stage carriages in the Ondipudur Agricultural College route in the town of Coimbatore in the State of Madras,, and invited applications therefor under section 57 of the Act.
There were as many as 39 applicants, and by his order dated December 3, 1952, the Regional Transport Authority granted one permit to applicant No. 24, the Thondamuthur Trading Company Ltd., and another to applicant No. 30, the V.C.K. Bus Service.
There were appeals by some of the unsuccessful applicants to the Central Road Traffic Board, which by its order dated February 19, 1953, set aside the order of the Regional Transport Authority and granted the permits, one to Stanes Transports Ltd., and another to Thirumalaiswami Goundar.
Revisions were preferred against this order by the aggrieved applicants under section 64 A of the Act, and by its order dated July 9, 1953, the Government confirmed the grant of the permit to Stanes Transports ,Ltd., but set aside the permit given to Thirumalaiswami Goundar, and granted it instead to Annamalai Bus Transport Ltd. Thereupon, applicants Nos. 24 and 30 moved the High Court of Madras under Aft. 226 for a writ of certiorari to quash the order of the Central Road Traffic Board dated February 19, 1953 and of the Government dated July 9, 1953; but the applications were dismissed by Rajagopala Ayyangar J. on March 8, 1954.
Against the orders of dismissal, Writ Appeals Nos. 31 and 32 of 1954 were preferred, and they were 666 dismissed by Rajamannar C. J. and Panchapakesa Ayyar J. on March 21, 1956.
It should be mentioned that the operation of 'the order dated February 19, 1953 was stayed pending the disposal of the revision under section 64 A and the writ proceedings in the High Court, with the result that both Thondamuthur Trading Company Ltd. and V.C.K. Bus Service which had been granted permits by the Regional Transport Authority on December 3, 1952, continued to run their buses notwithstanding cancellation of those permits on February 19, 1953.
It should also be mentioned that in June 1954 the business of the V.C.K. Bus Service which was the grantee of one of the permits under the order of the Regional Transport Authority dated December 3, 1952, was taken over by a Company called the V.C.K. Bus Service Ltd., which is the appellant before us, and by an order of the Regional Transport Authority dated July 7, 1954, it was recognised as the transferee of the permit granted to V.C.K. Bus Service.
To continue the narrative, the permit which was the subject matter of the litigation aforesaid was for a period of one year and a half, and it expired on June 30, 1954.
Before its expiry, the appellant applied on April 15, 1954, for a renewal thereof for a period of three years.
This application was duly notified under s.57, and objections to the grant were preferred by both Stanes Transports Ltd., and Annamalai Bus Transport Ltd. On September 5, 1954, the Regional Transport Authority granted a permit to the appellant for a period of one year from July 1, 1954 to June 30, 1955, obviously in the expectation that Writ Appeals Nos. 31 and 32 of 1954 would by then have been decided.
On March 19, 1955,the appellant again applied for a renewal of the permit, and that was also notified under section 57, and no objections having been filed to the grant thereof, the Regional Transport Authority by his order dated June 23, 1955, renewed the permit for a period of three years from July 1, 1955 to June 30, 1958.
It is this permit that forms the subject matter of the present litigation.
It has been already stated that Writ Appeals Nos. 31 and 32 of 1954 were dismissed on March 21, 1956.
667 Apprehending that the Regional Transport Authority might, in view of the judgment of the High Court, cancel the permit which was renewed on June 23, 1955, the appellant filed Writ Petition No. 333 of 1956 for a Writ of Prohibition restraining the Regional Transport Authority from Cancelling the permit, and that was dismissed by Rajagopala Ayyangar J. on the ground that when the original permit was set aside, the renewal thereof fell to the ground.
The appellant filed Writ Appeal No. 42 of 1956 against this order, and that was heard by Rajamannar C. J. and Panchapakesa Ayyar J. who by their judgment dated April 27, 1956, held, following a previous decision of that Court in K. Muthuvadivelu vs Regional Transport Officer(1) that the renewal having been obtained on the basis of a permit which had been subsequently cancelled, it could not be regarded as a fresh permit, that when the original permit was set aside, it must be taken to be non est for all purposes, and that the renewal must therefore be held to be a nullity.
In the result, they dismissed the appeal, but granted a certificate under article 133(1)(c), observing that the case raised a point of general importance, which was stated by them in these terms: When an application for renewal of a permit is made and granted and eventually it is held that the original permit was itself wrongly granted, does the renewed permit subsist for the period for which it was renewed, or does it automatically cease to be in force when it is finally decided that the original permit was not granted validly ? This matter now comes before us in Civil Appeal No, 323 of 1956.
After the High Court delivered its judgment in Writ Appeal No. 42 of 1956 on April 27, 1956, the respondents herein, viz., Stanes Transports Ltd., and Annamalai Bus Transport Ltd., applied to the Regional Transport Authority to grant them permits in accordance with the decisions of the High Court, and on May 5, 1956, the Regional Transport Authority cancelled the permit granted by him on June 23, 1955, in favour (1) A.I.R. 1956 Mad.
86 668 of the appellant, and granted permits instead to the respondents.
Thereupon, the appellant filed Writ Petition No. 554 of 1956 for a writ of certiorari to quash the order dated May 5, 1956, on the grounds which had been put forward in Writ Petition No. 333 of 1956 and Writ Appeal No. 42 of 1956.
That petition was dismissed by Rajagopalan J. on July 9, 1956, and the Writ Appeal No. 88 of 1956 filed against that order was dismissed by Rajamannar C. J. and Panchapa kesa Ayyar J. on July 13, 1956.
Leave to appeal against that judgment was also given under article 133 (1) (c), as the subject matter thereof was the same as that of Writ Appeal No. 42 of 1956 in respect of which leave had already been granted.
Civil Appeal No. 324, of 1956 relates to this matter.
Thus, both the appeals relate to the same matter, and raise the same point for determination.
Mr. A. V. Viswanatha Sastri, learned counsel who appeared in support of the appeals, contends that the view taken by the learned Judges of the High Court that when a permit is set aside by higher authorities, it should be treated as wholly non existent, and that, in consequence, a renewal thereof must be held to be void, is not sound, that on a correct interpretation of sections 57 and 58, a renewal is practically in the nature of a new grant, that the permit which was granted to the appellant for the period July 1, 1955 to June 30, 1958, though styled a renewal, was in substance a fresh permit, and that the fact that the old permit was set aside did not therefore affect the rights of the appellant under this permit.
He also argues that the Act and the rules framed thereunder contain elaborate provisions as to when a permit could be cancelled, forming in themselves a complete code on the subject, that the cancellation of the original permit is not one of the grounds on which a renewed permit could be set aside, and that the order of the Regional Transport Authority dated May 5, 1956, was therefore ultra vires.
The contention of the learned Solicitor General for the.
respondents is that when a permit is renewed, the renewal is, on a true construction of the provisions of the Act, in substance as in name a continuation of the 669 previous permit, and that, in consequence, when the, grant of a permit is set aside by a higher authority, the renewal thereof must also stand automatically set aside, and that further even if a renewed permit is not to be regarded as a continuation of the original permit,, seeing that it is granted on the basis of that permit it should be held to be subject to an implied term that it should cease if the original permit is cancelled.
The two points that arise for decision on these contentions are: (1) when a permit is renewed, is it a continuation of the original permit, or is it, in fact, a new one? and (2) if a renewed permit is not a continuation of the original permit, is the grant of it subject to the implied condition that it is liable to be cancelled, if the original permit is cancelled ? On the first question, it is necessary to refer to certain provisions of the Act material thereto.
Section,57 prescribes the procedure to be followed in the grant of stage carriage permits.
Under sub section
(2), applications therefor have to be made not less than six weeks before the date appointed by the Regional Transport Authority therefor.
Sub section (3) requires that they should be: published in the prescribed manner, and provision is made for representations being made in connection therewith.
When any representation is so received, sub section
(5) provides that the person making it is to be given an.
opportunity of being heard thereon in person or by a, duly authorised representative, and that the application for permit is to be disposed of at a public hearing.
Section 58 deals with renewals, and is as follows: (1) " A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may in its discretion specify in the permit: Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective without renewal for such period of less than three years as the Provincial Government may prescribe.
670 (2) A permit may be renewed on an application made and disposed of as if it were an application for a permit: Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.
" The contention of the learned counsel for the appellant based on section 58 (2) is that under the Act an application for renewal is to be dealt with exactly as an application for a new permit, that it is to be notified under section 57 and representations have to be called for in connection herewith and considered at a public hearing, that though the grant of the previous permit furnishes a ground of preference, it is subject to the limitation that the other conditions are equal and is thus only one of several factors to be taken into account, and that therefore when a renewal is actually granted, it is on an independent consideration of the merits and it cannot be distinguished from a fresh grant.
It was further argued that the proviso to section 58(2) meant little, because it was well established that the grant of a permit was not a matter of right, and the authorities under the Act would be acting within their powers if they refused an application for renewal and granted a fresh permit to a new applicant.
It was also contended that though the statute spoke of a renewal of a permit, that expression did not accurately bring out the true position, because in legal terminology, renewal imports that the transaction which is renewed, as for example, a lease, is to operate for a further period but on the same terms, but that when a permit was renewed, it was open to the authorities to impose new conditions, to alter the period during which it was to operate and generally to modify its terms, and that therefore the use of the word ,renewal " should not lead to the.
inference that it was the original permit that was being continued.
There is force in these contentions, but there are other provisions bearing on this question, and when they are reviewed as a whole, it is abundantly clear that the intention of the legislature was to treat a renewal as a continuation of the previous permit.
To 671 start with, section 58(1) enacts that a permit shall be effective for the period specified therein, but this is qualified by the words " without renewal ".
Therefore, when there is a renewal, the effective period is not the original period specified, but the period up to which the renewal is granted.
That indicates that the life of a renewed permit is one and continuous.
The matter is placed beyond doubt when we turn to the rules which have been framed under the Act.
Rule 184 (1) provides that when a renewal is granted, it shall be endorsed on the permit itself, and Form No. 33, which is prescribed therefor is as follows: " This permit is hereby renewed up to the day of. . 19 Thus, what is renewed is " this permit".
In this connection, reference must be made to the definition of " permit " in section 2(2) of the Act 'as " the document issued by a Provincial or Regional Transport Authority Rule 1985 is very material for the purpose of the present discussion, and it runs as follows: If an application for the renewal of a permit has been made in accordance with these rules and the prescribed fee paid by the prescribed date, the permit shall continue to be effective until orders are passed on the application or until the expiry of three months from the date of receipt of the application whichever is earlier.
If orders on the application are not passed within three months from the date of receipt of the application, the permit holder shall be entitled to have the permit renewed by the Transport Authority for the period specified in the application or for one year whichever is less and the Transport Authority shall call upon the permit holder to produce the registration certificate or certificates and Part B or Parts A and B of the permit, as the case may be, and endorse the renewal in Parts A and B of the permit accordingly and return them to the permit holder ".
Under this rule, when an application for renewal is made, the permit already granted is to be in force 'until an order is passed thereon, and what is more important, if no order is passed within three months, 672 the permit 'becomes automatically renewed for the ,,period mentioned in the rule.
This goes a long way to support the contention of the respondents that on the scheme of the Act, renewal is a continuation of the original permit.
It should also be mentioned that the rules provide for different forms for an application for fresh permit and one for renewal, and the fee to be paid along with those applications is also different.
A reading of the relevant provisions of the Act and of the rules leads indubitably to the conclusion that a renewal is a continuation of the permit previously granted.
The fact that the grant of renewal is not a matter of course, or that it is open to the authorities to impose fresh conditions at the time of renewal does not, when the permit is in fact renewed, alter its character as a renewal.
We shall now consider the authorities cited by learned counsel for the appellant as supporting the view that a renewal under the Act is in the same position as a fresh permit.
In Mahabir Motor Co. vs Bihar State(1), the point for decision was whether an appeal lay under section 64 (f) against an order granting a renewal of a permit.
The contention before the Court was that the Act made a distinction between the grant of a permit and a renewal thereof, and that as section 64 (f), provided only for an appeal against an order granting a permit, no appeal lay against an order granting a renewal.
In repelling this contention the Court observed "Both grant.
and renewal stand more or less on the same footing by reason of sections 47, 57 and 58 of the . .
This observation has reference to the procedure to be followed in the renewal of a permit and the right of appeal given under a. 64 as part of that procedure.
It has, no bearing on the character of a permit when it is renewed.
Another decision on which the appellant strongly relied is Anjiah vs Regional Transport Officer, Guntur There, the, facts were that an order of suspension had been passed for breach of one of the (1) Patna 429.
(2) [1956] Andhra Law Times 347. ] 673 conditions of the permit.
The correctness of the order was challenged before higher authorities, but without success.
Meantime, the period fixed in the permit had expired, and it had been renewed.
The question was whether the period of suspension could be enforced against the renewed permit.
It was held by the Andhra High Court that it could not be, because the renewal was, in essence, a new permit and not a mere continuance of the old one.
The reason for ' this decision was thus stated in the judgment: " There is no right of renewal as such and when a permit is renewed, there is no right either, on the part of the permit holder to insist upon the continuance of the old terms.
It would be undesirable that there should be any such restrictions upon the right of the authorities to grant the permit to anybody they choose or subject to any conditions that they think it to be necessary to impose, provided that they are acting all the time in the public interest and subject to the provisions of the and the.
Rules made thereunder.
" These considerations, though not without force, can.
not, in our opinion, outweigh the inference to be drawn from the other provisions to which we have made reference and for the reasons already given, we are unable to agree with this decision.
In the view that we have taken that under the provisions of the Act and the rules, a renewal is a continuation of the original permit, there can be no doubt as to what the rights of the appellant are.
When the proprietor of V. C. K. Bus Service was granted a permit by the Regional Transport Authority on December 3, 1952, that grant was subject to the result of the decision of the higher authorities.
On September 5, 1954, when the permit was renewed in favour of the appellant, that was subject to the decision of the High Court in Writ Appeal No. 32 of 1954, which was then pending.
When the renewed permit dated September 5, 1954, was again renewed on June 23, 1955, that was likewise subject to the result of the decision in Writ Appeal No. 32 of 1954.
When the High Court by its judgment dated March 674 21, 1956, passed in the said Writ Appeal upheld the cancellation of the permit which had been granted by the Regional Transport Authority on December 3, 1952 to V. C. K. Bus Service, the permit renewed on June 23, 1955, became ineffective at least as from that date.
The Regional Transport Authority was therefore right in treating it as having become void, and granting by his order dated May 5, 1956, permits to the respondents.
The second question arises on the alternative contention advanced by the respondents that even if the renewal is to be regarded, not as a continuation of the original permit but as an independent grant, it must be held to have been subject to an implied condition that if the original permit is ultimately set aside, the renewal thereof should come to an end.
Mr. Sastri, learned counsel for the appellant, disputes the correctness of this contention.
He argues that when there is a document embodying the terms ' of a contract, it is not permissible to imply therein a condition, if that will contradict or vary any terms contained in it, that to read into the permit a condition that it is to cease if the decision of the High Court went against the appellant, ' would be to modify the terms contained therein that it is to be effective upto June 30, 1958, and that it could not therefore be implied.
He also relies on the following observation of Lord Parker in P. A. Tamplin Steamship Company Limited vs AngloMexican Petroleum Products Company Limited (1) : " This principle is one of contract law, depending on some term or condition to be implied in the contract itself and not on something entirely dehors the contract which brings the contract to an end.
It is, of course, impossible to imply in a contract any term or condition inconsistent with its express provisions, or with the intention of the parties as gathered from those provisions.
" It is undoubted law that when the terms of a contract or grant are reduced to writing, no condition can be implied therein, which will be inconsistent with its express terms.
But the contention of the respondents (1) , 422. 675 involves no conflict with this principle.
They do not seek to obtain any modification or alteration of the terms of the permit, leaving it to operate subject to such modification or alteration.
They want that the whole permit with all its terms as to duration and otherwise should be held to have become inoperative.
What they are pleading is a condition subsequent on the happening of which the permit will cease, and to that situation the observation quoted above has no application.
Reference may be made in this connection to the following observation occurring later in the speech of Lord Parker in F. A. Tamplin Steamship Company Limited vs Anglo Mexican Petroleum Products Company, Limited (supra): " Moreover, some conditions can be more readily implied than others.
Speaking generally, it seems to me easier to imply a condition precedent defeating a contract before its execution has commenced than a condition subsequent defeating the contract when it is part performed." Thus, there is no legal obstacle to implying a condition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court.
That brings us on to the question of fact, whether on an examination of the permit and of the circum.
stances under which it came to be granted, we can infer that it was the intention of the Regional Transport Authority to renew the permit subject to the result of the decision of the High Court in the appeal which was then pending before it.
The permit granted to the V. C. K. Bus Service on December 3, 1952, had been cancelled on February 19, 1953, and it was only by reason of the stay orders that the bus was permitted to run.
When the appellant applied for renewal on April 15, 1954, there was opposition to the grant thereof from both the respondents herein, based on the decision of the Government dated July 9, 1953, and it was in view of their objection that the Regional Transport Authority renewed the permit for one year from July 1, 1954 to June 30, 1955.
It is true that 87 676 when the appellant applied again for renewal on March 19, 1955, the respondents did not raise objection thereto, but as the appeals in the High Court were still pending, they had good reason to believe that the renewal would not affect whatever rights might be declared in their favour by the High Court.
As all the papers relating to the grant of the original permit and the subsequent proceedings were part of the record before the Regional Transport Authority when he renewed the permit on June 23, 1955, it is impossible to resist the conclusion that he really intended to renew the permit only subject to the decision of the High Court.
It is of the utmost importance in this connection to bear in mind that the appellant applied not for a fresh permit but for a renewal, and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under Rule 134 A read with section 58 of the Act, and if he did not expressly provide that it was subject to the decision of the High Court, it must be because he must have considered that that was implicit in the fact of its being only a renewal.
That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment.
But it is argued for the appellant on the strength of the decision in Veerappa Pillai vs Raman & Raman Ltd.(1) that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is not a sufficient ground to import a condition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional.
We do not read that decision as authority for any such broad contention.
There, the question related to five permits, which had been originally granted to one Balasubramania.
Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself.
Then, Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, (1) ; 677 applied to have the permits transferred in his name.
On October 3, 1944, he also instituted a suit in the Sub Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on May 2, 1946.
Raman and Raman Ltd. appealed against this decision to the Madras High Court, which by its judgment dated September 2, 1949, reversed the decree of the Sub Court and held that it was entitled to the buses.
While these proceedings were going on, the transport authorities suspended on March 28, 1944, the permits which had been granted to Balasubramania and instead, they were issuing temporary permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub Court, Kumbakonam.
On March 29, 1949, the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits, to Veerappa.
Then on October 14, 1949, Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on January 3,1950.
The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Raman and Raman Ltd., that had obtained a valid title to the buses.
This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was not liable to be questioned in proceedings under article 226.
It should be noted that the renewal which was granted on January 3, 1950, was of permanent permits granted in pursuance of the, order of the Government dated March 29, 1949, which had quite plainly declared as a matter of policy that notwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa.
There can be no question of implying thereafter a condition that they were subject to the decision of the Court.
Moreover, the renewal was granted on January 3, 1950, after the litigation had ended on September 2, 1949, and any attack on that order could only be by 678 way of appeal against it, and that had not been done, We are of opinion that the decision in Veerappa Pillai vs Raman & Raman Ltd. (1) is of no assistance to the appellant.
In the result, we affirm the decision of the High Court both on the ground that the renewal dated June 23, 1955, is a continuation of the permit granted on December 3, 1952, and must fall to the ground when that stood finally set aside by the judgment of the High Court in Writ Appeal No. 32 of 1954 dated March 21, 1956, and on the ground that it was an implied condition of that renewal that it was to be subject to the decision of the High Court in that appeal, and that in the event which had happened, it had ceased to be effective.
These appeals fail, and are dismissed with costs in Civil Appeal No. 323 of 1956.
Appeals dismissed.
| On the basis of the investigation made on a First Information Report that one Brindaban the deceased son of PW 1 was kidnapped in a jeep from village Budha to the village Rampura where he was done to death, five persons were put on trial in Sessions Trial No. 107 of 1973.
but they were acquitted by Judgment dated 29.1.1974.
The trial court held that the investigation was defective and the real accused had not been brought on trial.
After a lapse of three years in 1977 a fresh investigation was undertaken and it resulted in the prosecution of the present appellants in the Court of Sessions as killers of Brindaban.
Prosecution examined seven eye witnesses.
The Trial Court assessed the evidence in a fair way and was not prepared to rely on it and therefore directed acquittal of the appellants.
In the State appeal against acquittal, the High Court heavily relying upon two documents The first being exhibit
P. 1 a letter sent by PW 1 Sunderlal to the Superintendent of Police on 29.4.1973 and the second being exhibit P 9 a confidential letter of the Superintendent of police to the Deputy Inspector General of the Department found support for the prosecution case as corroborative evidence with the ocular evidence, and reversed the acquittal, by convicting the appellants under section 148 and 367 IPC.
Hence the appeals by special leave.
Allowing the appeals, the Court ^ HELD: 1.
When in the first trial on the charge of murder and abduction the prosecution had alleged that the deceased had been murdered by a set of five persons different from the present appellants and let in evidence of three eye witnesses being PWs.
1, 3 and 24 of the Second Trial and who are pamittedly close relations of deceased to the effect that those five accused 94 persons and no others including the appellants were responsible for the death of the deceased, acceptance of the evidence of the very same three eye witnesses in the second trial conducted after a lapse of three years implicating the present appellants as murderers will be highly improper.
The fact that these alleged eye witnesses were prepared to implicate the five persons who were acquitted on the earlier occasion and the present appellants on the subsequent occasions in a serious charge like murder is indicative of the fact that no credence can be given to the evidence of these witnesses and they were willing to lend their oath to any story that the prosecution advanced.
Therefore, in an appeal against acquittal the High Court in whose hands there has been a reversal of the acquittal ought not to have found the remaining evidence to be good basis for conviction of the appellants.[96H; 97A D] 2.
The High Court fell into error in relying on the letter of PW 1 Sunderlal to the Superintendent of Police dated 29.4.1973 which is subsequent to the commencement of the investigation of the basis on the First Information Report.
Such a letter written by PW 1 who stood in the place of the prosecutor would not at all be admissible in evidence.
[97E F] Kali Ram vs State of Himachal Pradesh. ; ; followed.
To rely on the contents of the letter exhibit P. 9 written by the Superintendent of police to his superior officer, without examining the writer of the letter and without affording an opportunity to the defence to cross examine the writer, is totally misconceived.
The document was not available to be relied upon for any purpose and the High Court in the instant case was wrong in seeking support from it by way of corroboration of the oral evidence.
[97G H] 4.
In view of the express words in the definition of "abduction" in Section 362 of the I.P.C., the offence of abduction against the accused has not been fully proved, since the name of Vinod the leader of the party has not been mentioned at all during the investigation and even according to the majority of witnesses, on the persuation of the accused (appellants) he went inside his house and came properly dressed and to accompany the group to village Rampura.
[98C D] 5.
The appellants were not liable to be convicted under section 367 of the Penal Code because from the non acceptance by the High Court of the story of murder of the deceased by the appellants and non recording a finding that the grievous hurt leading to death was caused by them, it will be clear that the act of picking of the deceased from his village was unconnected with what happened later.
[98F G] 6.
The charge under section 148 I.P.C. has been conceded by the counsel for the State to relate to what followed at Rampura and is not connected with the accusation of abduction.
The common object as stated by the prosecution would not be available for sustaining the conviction under section 148 I.P.C. in that background.
[98G H] 95
|
ivil Appeal Nos.
4145 46 of 1986.
From the Judgment and order dated 10.7.85 and 11.11.85 of the High Court of Calcutta in Appeal No. 477 of 1984.
Tapas Ray and B.R. Agarwal for the Appellant.
758 V.A. Bobde, Rajiv Dutta and Ms. Mridula Ray for the Respondents.
The Judgment of the Court was delivered: SHARMA, J.
By the impugned judgment the Division Bench of the Calcutta High Court set aside the ex parte decree passed by the Original Side of the Court in favour of the plaintiff Sudha Devi, the present appellant.
The dispute between the parties is in regard to a flat in a building on Lord Sinha Road, Calcutta.
The plaintiff prayed for a decree for Rs.1,44,730 as past mesne profits besides future mesne profits at the rate of Rs.170 per day and for "if necessary, decree as against the third respondent for possession of the flat" described in the plaint.
By way of an alternative relief to the money claimed, an inquiry for determination of the mesne profits was asked for.
None of the defendants appeared.
At the ex parte trial the plaintiff examined one witness and tendered certain documents in evidence.
The learned Single Judge decreed the suit and the defendant No. 3 (present respondent No. 1) filed an appeal therefrom which was allowed on 10 7 1985 by the judgment which is under challenge in Civil Appeal No. 4146 of 1986.
The plaintiff thereafter filed an application with a prayer to modify the judgment and remand the suit for retrial.
The prayer was rejected by the order dated 11 10 1985.
Civil Appeal No. 4145 of 1986 is directed against this order.
According to the plaintiff 's case, the defendant No. 1 Baranagar Jute Factory Company Ltd. was the tenant in respect to the flat in question under the plaintiff.
The Jute Company defaulted in payment of rent and also wrongfully sublet the flat to the second defendant Sadhan Chattopadhyaya, which led to the filing of an eviction suit by the plaintiff.
Both the defendants were impleaded in the suit but they did not appear to contest.
An ex parte decree of eviction was passed on 19 2 1982.
It is further pleaded that subsequent to the decree, either of the two defendants or both wrongfully inducted the third defendant to occupy the demised flat.
The plaintiff was, therefore, entitled to the reliefs mentioned in the plaint.
The third defendant filed an application under the provisions of Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, but later withdrew the same and assailed the decree in appeal on merits.
The Letters Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff, on the basis of the meagre evidence led by her, failed to establish her case.
759 4.
The fact that the plaintiff obtained an ex parte decree in the earlier suit against the defendant No. 1 and 2 is established by the copy of the decree exhibited in the case.
The allegation in the plaint so far as the third defendant is concerned, is in paragraph 7 in the following words: "7.
Subsequent to the said Decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants, the first and/or second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat.
The first and/or second defendants by themselves and/or by the third defendant are still in wrongful possession of the said demised flat.
" The only evidence relevant to this part of the case is to be found in the oral evidence of the plaintiff 's sole witness Nand Kumar Tibrewal.
The High Court (in appeal) has declined to rely on his evidence mainly on the ground that the witness has not disclosed his concern with the suit property or his relationship with the plaintiff.
He has been rejected as incompetent.
The learned Counsel for the appellant contended that the witness (now deceased) was the husband of the plaintiff appellant and thus he was fully conversant with the relevant facts.
The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court.
We are afraid, the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage.
Besides, affidavits are not included in the definition of 'evidence ' in section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order XIX, Rules 1 or 2 of the Code of Civil Procedure.
This part of the argument of Mr. Tapas Ray must, therefore, be rejected.
The learned counsel next urged that even ignoring the relationship of the witness with the plaintiff, his evidence is adequate to prove the plaintiff 's case which has not been rebutted by any of the defendants either by filing a written statement or cross examining the witness.
Mr. Bobde, the learned counsel representing the defendant No. 3 (respondent No. 1 before us), contended that the witness contradicted the case pleaded in the plaint by positively stating that the defendant No. 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit.
The plaintiff 's assertion in paragraph 7 of the plaint is thus contradicted and the suit 760 cannot be decreed on its basis.
The learned counsel proceeded to analyse the situation arising out of the records of the case to show that if the defendant No. 3 is held to be in possession since before the earlier decree, other issues would arise in the suit, on which the plaintiff will be required to lead further evidence.
The learned counsel strenuously argued that in the facts and circumstances of the case, the prayer of the plaintiff made after the disposal of the appeal before the Letters Patent Bench for remanding the suit to the learned Single Judge (Original Side) for retrial was fit to be allowed and that Civil Appeal No. 4145 of 1986 should be allowed by this Court.
On the failure of the defendants to appear in the suit, the learned trial Judge decided to proceed with the case ex parte.
Even in absence of a defence the court cannot pass an ex parte decree without reliable relevant evidence.
The fact that the plaintiff chose to examine some evidence in the case cannot by itself entitle her to a decree.
The High Court (in appeal) was, therefore, perfectly justified in scrutinising the evidence from this angle.
The suit was filed and the relief was claimed on the basis that the third defendant was inducted in the flat in question by the other two defendants after they had already suffered a decree, and there is not an iota of evidence led by the plaintiff to prove this story.
On the other hand, the evidence of the sole witness disproves this part of the case.
Having regard to the allegations in the plaint, the facts emerging from the documents and the oral evidence, it is clear that several other questions may arise for consideration if the defendant No. 3 is assumed to be in possession from before the earlier decree.
We, therefore, agree with Mr. Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is.
After hearing the learned counsel for the parties at considerable length, we also agree with Mr. Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed.
As nobody is disputing this position before us, we do not consider it necessary to further deal with this aspect.
In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the concession of the defendant No. 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial.
The plaintiff may file an application for amendment of her pleading, if so advised, and in that case the learned Single Judge shall dispose it of in accordance with law.
The defendants will thereafter be allowed to file their written statements within a 761 period to be indicated by the Court.
The suit will thereafter be taken up for further trial as expeditiously as may be possible.
The evidence already led by the plaintiff shall continue to be evidence in the suit.
In the result, the judgments of the High Court dated 10 7 1985 and 11 10 1985, passed in Appeal No. 477 of 1984 are set aside and the suit is remanded to the learned Single Judge for disposal in the light of the observations made above.
We feel that the suit ought to be disposed of as expeditiously as possible and we expect and hope that the trial Judge will be able to dispose it of within six months.
The appeals before us are allowed in the above terms.
The parties shall bear their own costs in this Court; but so for the costs in the High Court are concerned they shall abide the final result in the litigation.
P.S.S. Appeals allowed.
| The plaintiff appellant filed a suit for ejectment of the tenant defendant No. 1 for default in payment of rent and also to have wrongfully sublet the flat to the second defendant.
None of the defendants appeared.
At the ex parte trial the plaintiff examined one witness and tendered certain documents in evidence.
The Single Judge decreed the suit.
Subsequently to the decree the two defendants are alleged to have inducted the third defendant (respondent No. 1) to occupy the demised flat.
The plaintiff filed an application for modification of the decree.
The respondent No. 1 first filed an application for setting aside the ex parte decree, but later withdrew it and assailed the decree in appeal.
The Letters Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff 's sole witness did not disclose his concern with the suit property or his relationship with the plaintiff and that on the basis of the meagre evidence led by her, she had failed to establish her case.
In the appeal to this Court it was contended on behalf of the appellant that the witness was the husband of the plaintiff appellant and thus he was fully conversant with the relevant facts and that the criticism by the High Court was not justified.
Reliance was placed on an affidavit filed in this Court.
It was further contended that even ignoring the relationship of the witness with the plaintiff, his evidence was adequate to prove the plaintiff 's case which has not been rebutted by any of the defendants either by filing a written statement or by cross examining the witness.
757 Allowing the appeals and remanding the suit for retrial.
^ HELD: 1.
The plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is.
Even in absence of a defence the Court cannot pass an ex parte decree without reliable relevant evidence.
The fact that the plaintiff chose to examine some evidence in the case cannot by itself entitle her to a decree.
The Letters Patent Bench was, therefore, justified in scrutinising the evidence from that angle.
[760B D] 2.
The suit was filed and the relief was claimed on the basis that the third defendant was inducted in the flat in question by the other two defendants after they had suffered a decree.
There is not an iota of evidence led by the plaintiff to prove this story.
On the other hand, the evidence of the sole witness, who positively stated that the defendant No. 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit, disproves this part of the case.
If the defendant No. 3 is assumed to be in possession from before the earlier decree several other issues would arise for consideration on which the plaintiff will be required to lead further evidence necessitating retrial.
[760D E] 3.
Affidavits are not included in the definition of 'evidence ' in section 3 of the Evidence Act and can be used as evidence only if for sufficient reasons Court passes an order under Order XIX, Rules 1 or 2 of the Code of Civil Procedure.
The plaintiff appellant cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage.
[759E F] 4.
In view of the prayer made by the plaintiff in the High Court and in C.A. No. 4145 of 1986 before this Court for remanding the suit for retrial and the concession of defendant No. 3 before this Court, the judgments of the High Court are set aside and the suit is remanded to the Single Judge for retrial and disposal in accordance with law expeditiously.
[761B]
|
Appeals Nos. 1056 and 1057 of 1963.
Appeals by special leave from the judgment and order dated September 30, 1963 of the Mysore High Court in Writ Petitions Nos.
1592 and 1522 of 1963.
section K. Venkataranga Iyengar and R. Gopalakrishnan, for the appellants (in both the appeals).
C. K. Daphtary, Attorney General, B. R. L. lyengar and B. R. G. K. A char, for the respondents (in both the appeals) January 29, 1964.
The Judgment of B. P. Sinha, C.J., K. Subba Rao, N. Rajagopala Ayyangar and Raghubar Dayal JJ.
was delivered by Subba Rao J. Mudholkar J. delivered a dissenting opinion.
SUBBA RAO J.
These two appeals raise the question of the validity, of the orders made by the Government of Mysore in respect of admissions to Engineering and Medical Colleges in the State of Mysore.
The facts may be briefly stated: in the State of Mysore there are a number of Engineering and Medical Colleges most of them are Government Colleges and a few of them are Government aided Colleges.
The State Government appointed a common selection committee for settling admissions to the Engineering Colleges and another common selection committee for settling admissions to Medical Colleges.
The Government by an order dated July 26, 1963, marked as exhibit C in the 373 High Court, defined backward classes and directed that 30 per cent of the seats in professional and technical colleges and institutions shall be reserved for them and 18 per cent.
to the Scheduled Castes and the Scheduled Tribes.
On July 6, 1963, the Government sent a letter to the Director of Technical Education in Mysore, Bangalore, informing him that it had been decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Engineering Colleges shall be fixed as interview marks; it also laid down the criteria for allotting marks in the interview.
It appears that a similar order was issued in respect of Medical Colleges.
The selection committee converted the total of the marks in the optional subjects to a maximum of 300 marks and fixed the maximum marks for interview at 75.
On the basis of the marks obtained by the candidates in the examination and those obtained in the interview, selections were made for admission to Engineering and Medical Colleges.
Some of the candidates whose applications for admission to the said colleges were rejected filed petitions under article 226 of the Constitution in the High Court of Mysore for quashing the orders issued by the Government in the matter of admissions to the said Colleges and for a direction that they shall be admitted in the Colleges strictly in the order of merit.
The High Court, after considering the various contentions raised by the petitioners, held that the orders defining backwardness were valid and that the criteria laid down for interview of students were good; but it held that the selection committee had abused the powers conferred upon it and on that finding set aside the interviews held and directed that the applicants shall be interviewed afresh in accordance with the scheme laid down by the Government in Exs.
C and D and in Annexure IV, subject to the directions given by it.
Two of the petitioners have filed the present appeals against the said order of the High Court.
We shall now proceed to deal with the various contentions raised by learned counsel for the appellants.
Learned counsel for the appellants contends that the Government did not issue any order to the selection corn 374 mittee in charge of admissions to Medical Colleges prescrib ing the marks for interview or fixing the criteria for allotting the said marks.
Annexure IV dated July 6, 1963, relates to award of marks for the interview of candidates, seeking admission to Engineering Colleges and Technical Institutions.
It was a letter written by the Secretary to the Government of Mysore, Education Department, to the Director of Technical Education in Mysore Bangalore.
Therein the Government fixed the percentage of marks to be allotted at the interview.
The selection committee was authorised to allot marks to the candidates, having regard to the following factors: (1) General Knowledge.
(2) Aptitude and personality.
(3) Previous academic career, including special distinctions, etc.
(4) N .
C.C., A.C.C., etc.
(5) Extra curricular activities including sports, social service, debating, dramatics, etc.
But at the time of arguments no letter written by the Government in respect of admissions to Medical Colleges was placed before us.
There is no definite allegation in either of the two affidavits filed by the appellants that no such order was issued by the Government in respect of Medical Colleges.
But, in the petition filed by Chitralekha in para 22 the following statement is found: "As the order empowering them to award 75 marks as interview marks has so far remained secret in that it has not been made available, this Hon 'ble Court may be pleased to send for the same, as the order falls to be quashed.
" This averment assumes that such an order was made.
In the counter affidavit filed by Dr. Dharmaraj, Dean, Medical College, and Chairman of the selection committee for admission to Medical Colleges, it is stated that the Govern ment by its letter directed that the said selection committee shall interview candidates and allot marks the maximum of which shall be 25 per cent of the maximum marks for the optional subjects and laid down the criteria for allotting marks in the interview.
In the paper book as typed the description of the letter is omitted.
But the learned; Attorney General stated that in the original the description is given and that is, PLM 531 MNC 63 dated 12th July, 1963.
In the counter affidavit filed by B. R. Verma, Deputy Secretary to the Government of Mysore, Education Depart ment, Bangalore, after referring to Annexure IV, it is stated that a similar letter was sent by the Government to the Selection Committee for admission to Medical Colleges.
It does not appear from the judgment of the High Court that learned counsel for the appellants denied the existence of such a communication in respect of Medical Colleges, but Proceeded with his argument on the basis that a communi cation similar to Annexure IV issued in connection with admissions to Engineering Colleges existed in the case of Medical Colleges also.
But before us the learned counsel for the appellants heavily relied upon the fact that the said order was not filed in the court and was not willing to accept the assurance given by the Attorney General on instructions that such an order existed.
In the circumstances we directed the Attorney General to file the said order.
A copy of the letter written by the Government has since be en filed and it clearly shows that the relevant instructions were issued in, respect of admission to Medical Colleges also.
We, therefore, hold that the Government sent a letter similar in terms.
to annexure IV to the selection committee for admission to, Medical Colleges.
The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of article 166 of the Constitution.
As the argument turns upon the for= of the said annexure it will be convenient to read the material part thereof. "sir, Sub : Award of marks for the "interview" of the candidates seeking admission to Engineering Colleges and Technical Institutions.
With reference to your letter No. AAS.
4.ADW/63/2491, dated the 25th June, 1903, on the subject 376 Mentioned above, I am directed to state that Government have decided that 25 per cent of the maximum marks Yours faithfully, Sd/ section NARASAPPA, Under Secretary to Government, Education Department.
" Ex facie this letter shows that it was a communication of he order issued by the Government under the signature of the Under Secretary to the Government, Education Department.
Under article, 166 of the Constitution an executive action of the Government of a State shall be expressed to be taken in the name of the Governor, and that orders made in the name of the Governor shall be authenticated in such, manner as may be specified in rules to be made by be Governor and the validity of an order which is so authenticated shall not be called in question on the ground hat it is not an order made by the Governor.
If the conditions laid down in this Article are complied with, the order cannot be called in question on the ground hat it is not an order made by the Governor.
It is con tended that as the order in question was not issued in the name of the Governor the order was void and no interviews could be held pursuant to that order.
The law on the subject is well settled.
In Dattatreya Moreshwar Pangarkar vs The State of Bombay (1) Das J., as he then was, observed: "Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor.
If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State.
This, however, does not vitiate the order itself action to be expressed and authenticated in the manner therein laid down but an (1) ; , 625.
377 omission to comply with those provisions does not render the executive action a nullity.
Therefore ' all that the procedure established by law requires is that the appropriate Gov ermnent must take a decision as to whether the detention order should be confirmed or not under section 11(1).
" The same view was reiterated by this Court in The State of Bombay vs Purshottam Jog Naik(1), where it was pointed out that though the order in question then was defective in form it was open to the State Government to prove by other means that such an order had been validly made.
This view has been reaffirmed by this Court in subsequent decisions: see Ghaio Mall and Sons vs The State of Delhi (2), and it is, therefore, settled law that provisions of article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be es tablished as a question of fact that the impugned order was issued in fact by the State Government or the Governor.
The judgment of this Court in Bachhittar Singh vs The State of Punjab(3) does not help the appellants, for in that case the order signed by the Revenue Minister was not communicated to the party and, therefore, it was held that there was no effective order.
In the light of the aforesaid decisions, let us look at the facts of this case.
Though Annexure IV does not conform to the provisions of article 166 of the Constitution, it ex facie says that an order to the effect mentioned therein was issued by the Government and it is not denied that it was communicated to the selection committee.
In neither of the affidavits filed by the appellants there was any specific averment that no such order was issued by the Government.
In the counter affidavit filed by B. R. Varma, Deputy Secre tary to the Government of Mysore, Education Department, there is a clear averment that the Government gave the direction contained in Annexure IV and a similar letter was (1) ; (2)[1959] section C. R. 1424.
(3) [1962] SUPP.
3 section C. R. 713.
378 issued to the selection committee for admissions to Medical Colleges and this averment was not denied by the appellants by filing any affidavit.
In the circumstances when there are no allegations at all in the affidavit that the order was not made by the Government, we have no reason to reject the averment made by the Deputy Secretary to the Government that the order was issued by the Government.
There are no merits in this contention.
It is then contended that the Government has no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University and, therefore, the orders made by the Government in respect of admission were illegal.
The first argument is.
that co ordination and determination of standards of a university is a Union subject and, therefore, the State Legislature has no constitutional competency to make a law for maintaining the standards of university education.
As the State Government 's executive power extends to matters with respect to which the Legislature of the State has power to make laws, the argument proceeds, the Government of the State cannot make an order or issue directions for maintaining the standards of the University.
The further argument is that prescribing higher marks for admission to a College is for the purpose of maintaining the standards of University education and therefore the State Government is not empowered to do so.
In support of this contention reliance is placed upon the judgment of this Court in Gujarat University vs Shri Krishna(1).
There, one of the questions raised related to alleged conflict between entry 11 of List II and entry 66 of List I of the Seventh Schedule to the Constitution.
By item No. 11 of List II of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of education including Universities subject to the provisions of items 63, 64, 65 and 66 of List I and 25 of List III.
By item 66 power is entrusted to Parliament to legislate on co ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
(1) [1963] SUPP.
1 S.C. R. 112 379 The question was whether medium of instruction was comprehended by either of those entries or whether it fell under both.
In that context it was observed at p. 715 716: "The State has the power to prescribe the syllabi and courses of study in the institutions named in entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted.
But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co ordi nation of such standards either on an All India or other basis impossible or even difficult.
" This and similar other passages indicate that if the law made by the State by virtue of entry II of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legisiative power of the Parliament under the entry "Co ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" reserved to the Union, the State law may be bad.
This cannot obviously be decided on speculative and hypothetical reasoning.
If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipre out or appreciably abridge the central field, it may be struck down.
But that is a question of fact to be ascertained in each case.
It is not possible to hold that if a State legislature made a law prescribing a higher percentage of marks for extra curricular activities in the matter of admission to colleges, it would be directly encroaching an the field covered by entry 66 of List I of the Seventh Schedule to the Constitution.
If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law.
It is then said that the Mysore University Act conferred power to prescribe rules for admission to Colleges on the University and the Government cannot exercise that power.
380 It is true that under section 23 of the Mysore University Act, 1956, the Academic Council shall have the power to prescribe the conditions for admission of students to the University and, in exercise of its power, it has prescribed the percentage of marks which a student shall obtain for getting admission in medical or engineering colleges.
The orders of the Government do not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have the minimum qualifications prescribed by the University.
The Government runs most of the medical and engineering colleges.
Excluding the State aided colleges for a moment, the position is as follows: The Colleges run by the Government, having regard to financial commitments and other relevant considerations, can only admit a specific number of students to the said Colleges.
They cannot obviously admit all the applicants who have secured the marks prescribed by the University.
It has necessarily to screen the applicants on some reasonable basis.
The aforesaid orders of the Govemment only prescribed criteria for making admissions to Colleges from among 'students who secured the minimum qualifying marks prescribed by the University.
Once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it.
This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power.
Even so it is argued that the same power cannot be exercised by the Government in respect of private Colleges though they are receiving aid from the State.
But the management of aided institutions have not raised any objections.
Indeed, from the year 1960 admissions were made to the Colleges by the selection committees constituted by the Government.
The High Court, after considering the material placed before it, held that, with the consent of the management of the various professional and technical colleges, the Government took over the responsibility of regulating admission of students to the colleges in question.
381 Nothing has been placed before us to prove that the selec tion committees were constituted against the wishes of the management of the aided colleges.
In the circumstances.
we cannot disturb the finding of the High Court in this regard.
We, therefore, hold that the Government has power to prescribe a machinery and also the criteria for admission of qualified students to medical and engineering colleges run by the Government and, with the consent of the management of the Government aided colleges, to the said colleges also.
It is then contended that the system of selection by interviews and viva voce examination is illegal inasmuch as it enables the interviewers to act arbitrarily and to mani pulate the results and, therefore, it contravenes article 14 of the Constitution.
To appreciate this contention it is necessary to notice how the interview is held and the criteria laid down for the selection committee to adopt.
The Government by its order dated May 17, 1963 constituted a committee consisting of the following members for selection to Government Medical Colleges: (1) The Dean, Medical College, Mysore Chairman.
(2) The Dean, Medical College, Bangalore Member.
(3) The Dean, Medical College, Hubli Member.
So too, highly qualified educationists were appointed to the selection committee for the Engineering Colleges.
By notification dated July 6, 1963, in respect of the Engineer ing Colleges and a similar notification issued in respect of the Medical Colleges, the Government prescribed that in addition to the examination marks in optional subjects there should be an interview of students for which the maximum mark prescribed shall be 25 per cent of the maximum marks of the optional subjects.
The selection committee has to allot marks, having regard to general knowledge, aptitude and personality, previous academic career, including special distinctions etc.
, N.C.C., A.C.C. etc., extra curricular activities including sports, social service, debating, dramatics etc.
It is, therefore, clear that the Government by its order not only laid down a clear policy and prescribed definite criteria in the matter of giving marks at the interview but 382 also appointed, competent men to make the selection on that basis.
The order of the Government does not in any way contravene article 14 of the Constitution.
But learned counsel for the appellants raised a larger question that selection by interviews is inherently repugnant to the doctrine of equality embodied in article 14 of the Constitution, for, whatever may be the objective test laid down, in the final analysis the awarding of marks is left to the subjective satisfaction of the selection committee and, therefore, it gives ample room for discrimination and manipulation.
We cannot accept such a wide contention and condemn one of the well accepted modes of selection in educational institutions.
James Hart in his "An Introduction to Administrative Law" observes, at p. 180 thus: "A test or examination, to be competitive, must employ an objective standard of measure.
Where the standard or measure is wholly sub jective to the examiners, it differs in effect in no respect from an uncontrolled opinion of the examiners and cannot be termed competitive." In the field of education there are divergent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges.
Orthodox educationists stand by the marks obtained by a student in the annual examination.
The modern trend of opinion insists upon other additional tests, such as interview, performance in extra curricular activities, personality test, psychiatric tests etc.
Obviously we are not in a position to judge which method is preferable or which test is the correct one.
If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examinations.
In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty.
This criticism is more a reflection on the examiners than on the system itself.
The scheme of selection, however perfect it may be on paper, may be abused in practice.
That it is capable of abuse is 383 not a ground for quashing it.
So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter.
In this case the criteria laid down by the Government are certainly relevant in the matter of awarding marks at the interview.
Learned counsel contends that the ability of a student on the basis of the said criteria can be better judged by other methods like certificate from the N.C.C. Commander or a medical board or a psychatrist and should not be left to a body like the selection committee which cannot possibly arrive at the correct conclusion in a short time that would be available to it.
This criticism does not affect the validity of the criteria, but only suggests a different method of applying the criteria .than that adopted by the Committee.
It is not for us to say which method should be adopted: that must be left to the authority concerned.
If in any particular case the selection committee abuses its power in violation of article 14 of the Constitution, that may be a case for setting aside the result of a particular interview, as the High Court did in ,this case.
We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending article 14 of the Constitution.
Lastly it is contended that though the High Court did not quash the order of the Government embodied in exhibit C, it held that it was not a perfect classification and also indicated its mind that the Government should have adopted the caste test as well as the residence test in making the classification.
If the observations of the learned Judge, the argument proceeds, are not corrected, the State may be bound by such observations in the matter when it finally prescribes the criteria for ascertaining the backward classes under article 15 (4) of the Constitution.
In exhibit C the Government laid down that classification of socially and educationally backward classes should be made on the following basis: (1) economic condition; and (2) occupation.
According to that order a family whose income is Rs. 1,200 per annum or less and persons or classes following occupations of agriculture petty business, inferior services, crafts or other 384 occupations involving manual labour.
are in general, socially, economically and educationally backward.
The Government lists the following occupations as contributing to social backwardness: (1) actual cultivator; (2) artisan; (3) petty businessmen; (4) inferior services (i.e., Class IV in Government services and corresponding class or service in private employment) including casual labour; and (5) any other occupation involving manual labour.
It is, therefore, manifest that the Government, as a temporary measure pending an elaborate study, has taken into consideration only the economic condition and occupation of the family concerned as the criteria for backward classes within the meaning of article 15 (4) of the Constitution.
The order does not take into consideration the caste of an applicant as one of the criteria for backwardness.
Learned counsel does not attack the validity of the said order.
But in the High Court conflicting arguments were advanced in support of this order as well as against it.
The High Court heavily relied upon the decision of this Court in M. R. Balaji vs The State of Mysore(1) and came to the conclusion that, the scheme adopted by the State was a very imperfect scheme and that in addition to the occupation and poverty tests, the State should have adopted the "caste" test as well as the 'residence" test in making the classification.
It also observed that the decision in Balaji 's case says that "the `caste ' basis is undoubtedly a relevant, nay an important basis in determining the classes of backward Hindus but it should not be made the sole basis".
It concluded that part of the discussion with the following observation: "But I earnestly hope that soon the State will make a more appropriate classification lest its bonafides should be questioned.
" Learned counsel contends that these observations are not supported by the decision in Balajis case, and that they are in conflict with the observations made therein.
We shall, therefore, consider the exact scope of the observations in the said decision of this Court.
There, 68 per cent of seats in Colleges were reserved for the alleged backward communities.
It was argued before this Court on behalf of the peti (1) [1963] Supp. 1 section C. R. 439.
385 tioners therein that the impunged order, which was passed under article 15(4) of the Constitution, was not valid because the basis adopted by the order in specifying and enumerating the socially and educationally backward classes of citizens in the State was unintelligible and irrational, and the classification made on the said basis was inconsistent with and outside the provisions of article 15 (4) of the Constitution.
In considering the said question, Gajendragadkar J., speaking for the Court, made the following observations, at p. 658: "The backwardness under article 15 (4) must be social and educational.
It is not either social or educational, but it is both social and educational; and that takes us to the question as to how social and educational backwardness has to be determined.
" Adverting to the expression "classes" of citizens in article 15(4) of the Constitution, the learned Judge proceeded to state: The group of citizens to whom article 15(4) applies are described as "classes of citizens not as castes of citizens.
A class according to the dictionary meaning, shows division of society according to, status, rank of caste. . to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens.
In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated.
If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves.
134 159 S.C. 25 386 Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group that test would inevitably break down in relation to many sections of Indian Society which do not recognise castes in the conventional, sense known to Hindu society. . .
That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups Or classes of citizens, it cannot be made the sole or the dominant test in that behalf." Two principles stand out prominently from the said obser vations, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social back wardness; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the sole or dominant test in that behalf.
The observations extracted in the judgment of the High Court appear to be in conflict with the observations of this Court.
While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests.
As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of article 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste.
While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class.
To put it differently, the authority concerned may take caste into consideration in ascertaining 387 the backwardness of 'a group of persons; but, if it does not, its order will not be bad on that account, if it can ascertain the backwardness of a group of persons on the basis of other relevant criteria.
The Constitution of India promises Justice, social, economic and political; and equality of status and of opportunity,.
among others.
Under article 46, one of the Articles in Part IV headed "Directive Principles of State Policy", the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Under article 341, "The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be." Under article 342, in the same manner, the President may specify the tribes or tribal communities as Scheduled Tribes.
Article 15(4) says: "Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes." These provisions form a group of Articles which have relevance in the making of a special provision for the advancement of any socially and educationally backward classes of citizens in the matter of admissions to colleges.
These provisions recognize the factual existence of backward classes in our country brought about by historical reasons and make a sincere attempt to promote the welfare of the weaker sections thereof.
They shall be so construed 388 as to effectuate the said policy but not to give weightage to progressive sections of our society under the false colour of caste to which they happen to belong.
The important factor to be noticed in article 15 (4) is that it does not speak of castes, but only speaks of classes.
If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes.
Though it may be suggested that the wider expression 'classes" is used in cl.
(4) of article 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the Constitution from using the expression "backward classes or castes".
The juxtaposition of the expression "backward classes" and "Scheduled Castes" in article 15 (4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes.
It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong.
This interpretation will carry out the intention of the Constitution expressed in the aforesaid Articles.
It helps the really backward classes instead of promoting the interests of individuals or groups who, though they belong to a particular caste a majority whereof is socially and educationally backward, really belong to a class which is socially and educationally advanced.
To illustrate, take a caste in a State which is numerically the largest therein.
It may be that though a majority of the people in that caste are socially and educationally backward, an effective minority may be socially and educationally far more advanced than another small sub caste the total number of which is far less than the said minority.
If we interpret the expression "classes" as "castes", the object of the Constitution will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those who really deserve.
This anomaly will not arise if, without equating caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward 389 class or not.
I On the other hand, if the entire sub caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution.
We do not intend to lay down any inflexible rule for the Government to follow.
The laying down of criteria for ascertainment of social and educational backwardness of a class is a complex problem depending upon many circumstances which may vary from State to State and even from place to place in a State.
But what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class.
We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of article 15(4) of the Constitution, it does not vitiate the classification if it satisfied other tests.
In the result, the appeals fail and are dismissed.
There will be no order as to costs.
MUDHOLKAR I.
The appellants in these appeals had challenged before the High Court of Mysore the validity of the mode of selection of candidates for admission to the Medical Colleges in that State by preferring petitions before the High Court under article 226 of the Constitution.
They pointed out in their petitions that the selection committee, instead of selecting persons for admission on the basis of merit, chose to interview the candidates and made the ultimate selection by adding marks upto 75 to the marks actually secured by the candidate at the Pre University Course examination (herein referred to as P.U.C. Examination) on the basis of the interview.
Their contentions are that in the absence of any Government order there was no basis upon which marks at the interview could be added to the marks secured in the P.U.C. examination, that the so called order on which reliance was placed on behalf of the State is not a Government order at all as the document produced does not comply with the requirements of article 166 of the Constitution, that no criteria were laid down for allotting marks TO the candidates at the interview, that this was a violation of article 14 of the Constitution, that the Govern 390 ment was constitutionally incompetent to prescribe qualifications for admission to Colleges under the University different from those prescribed by the University and that under the Mysore University Act the University alone had the power to prescribe rules for admission to Colleges affiliated to the University.
The High Court held against the appellants on all these points.
But upon the view that the Selection Committee had "misused" the powers conferred upon it and had wrongly interpreted the Government Order, quashed the results of the interview and directed that after interviewing the petitioners before it afresh their cases should be considered for admission by the Selection Committee in accordance with the Government Order.
In the course of its order the High Court has found fault with the Government for not taking the castes of the candidates into consideration while exercising its powers under article 15(4) and making provision for the advancement of backward classes and made certain remarks to which objection has been taken on behalf of the appellants.
My learned brother Subba Rao J. whose judgment I have had the opportunity of seing has upheld the judgment of the High Court but has not agreed with the observations made by it suggesting that the caste of candidates should also have been taken into consideration while determining the social and educational backwardness of a class.
I regret my in ability to agree with many of the conclusions reached by my learned brother and I am of opinion that the appeals ought to be allowed.
Even assuming for the time being that the Government of Mysore had the power both under the Constitution and under a law enacted by the Legislature to prescribe qualifications for admission to any Colleges in the State, including colleges imparting technical or professional education, the first question is whether there was in fact a Government Order justifying the course adopted by the Selection Com mittee.
It may be mentioned that the document which was filed in the High Court as being the Government Order was merely a communication addressed on behalf of the Government by one of its Secretaries to the selection Committee and signed by an Under Secretary.
But this document only 391 refers to the interview prescribed for making selections of candidates for admission: to Engineering Colleges.
At the hearing in this Court the Attorney General who appeared for the State of Mysore stated that there was a Government.
Order also as regards admission to Medical Colleges that it was actually brought to the notice of the High Court and that he may be permitted to produce that order.
Leave was granted by us to him to do so.
On December 20, 1963, that is, after judgment had been reserved Mr. Achar, Assistant Government Advocate, placed on record, what according to the State, is the Government Order.
This document, however, was not a part of the record of the writ petitions and the only manner in which the so called Government Order relating to admission to Medical Colleges was brought to the notice of the High Court was by specifying in Dr. Dharmaraj 's affidavit, the number of the letter addressed by a Secretary to the Government to the Selection Committee dealing with admissions to the Medical Colleges.
It is desirable to reproduce in extenso the document which has been filed now in this Court.
It runs thus: "GOVERNMENT OF MYSORE CONFIDENTIAL: No. PLM Mysore Government Secretariat, Vidhana Soudha, Bangalore, dated 12th July, From The Secretary to Government of Mysore, PH. Labour & Munl.
Department, Bangalore.
TO The Chairman, Selection Committee & Dean, Medical College, Mysore.
Sir, SUBJECT.
Award of marks for the interview of thE 392 candidates seeking admission to Medical Col leges in the State.
I am directed to state that Government have decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Medical Colleges, shall be fixed as interview marks.
I am further to state that the Selection Committee is authorised to allot marks for the interview of the candidates as fixed above, having regard to the following factors: 1.
General Knowledge.
Aptitude and personality.
section Previous academic career including special distinctions, etc. 4.
N.C.C., A.C.C., etc.
Extra curricular activities including sports, social service, debating, dramatics, etc.
I am also to state that Government have decided that students with exceptional merit in games and sports State and inter State standard may be selected upto a maximum of two per cent of the total number of seats.
Yours faithfully, Sd./ L. G. DESAI, Under Secretary to Government, PH. Labour & Munl.
Attested Sd./ H. L. LINGARAJ URS, Dy.
Secretary to Government, PH.
Lb. & M1.
393 This is nothing more than a communication emanating from a secretary to the Government of Mysore to the Chairman, and addressed to the Selection Committee and Dean, Medical College, Mysore.
It is thus not an order of the kind contemplated by article 166 of the Constitution.
That Article lays down that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor and that the orders made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules made by the Governor.
It further provides that where an order is authenticated in the manner prescribed in the rules made by the Governor, its validity shall not be called in question on the ground that it is not an order made by the Governor.
The essence of article 166, however, is that executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
The document placed before us does not show that the action, to wit, prescribing an interview, allotting marks for it and laying down the criteria to be observed by the Selection Committee in allotting marks even purports to emanate from the Governor.
All that the Secretary on whose behalf some Under Secretary has signed, says is that he is "directed to state" that the Government has taken a certain decision.
This document thus is not that decision.
What that decision is, how it is worded, when it was taken and whether it is expressed in the name of the Governor, we do not know.
The cases in which it has been held by this Court that the provisions of article 166(2) are directory and not mandatory are of no help because here what we are concerned with is about the actual existence of an order made by the Governor.
No doubt, where there is merely non compliance with the provisions of article 166(1) or of the rules framed by the Governor in the matter of authentication of an order, evidence aliunde could be led to establish that in fact an order was made by the Governor.
This clearly, does not mean that the existence of a Government order need not be established.
On the contrary these decisions accept the position that the making of a Government Order is sine qua non for justifying any action which is purported to be taken by an officer of the Government on its behalf.
Here the Secretary has said a certain procedure.
was to be followed by the Selection Committee.
He has himself 394 no power to order that to be done de hors an order of the Government.
It is for this reason that he has made a refer ence to such an order.
But that order is not before us.
It was said by the learned Attorney General that the existence of the order was not denied by the appellants.
But that is not correct.
Right from the beginning they have been saying that there was no "Government Order" in so far as admission to the Medical Colleges was concerned.
What was relied on behalf of the State was the letter addressed to the Selection Committee concerned with the applications of persons for admission to Engineering Colleges.
But since both the appellants were applicants for admission to a Medi cal College it was not necessary for them to say further that what was relied on was not a Government Order even in regard to Engineering Colleges.
In reply to the appellants ' averment reliance was placed upon an affidavit by Dr. Dharamraj in which reference is made to the very com munication which I have reproduced earlier as being the "Govemor 's Order".
If that is what is claimed to be the Govemor 's Order, then the State must fail on the short ground that it is not expressed to be made in the name of the Governor and is thus prime facie not the Governors Order.
In Bachittar Singh vs The State of Punjab(1) one of the questions which arose for consideration was whether what a Minister wrote on the file of a case and initialled amounted to an Order of the Governor within the meaning of article 166.
This Court negatived the contention on the ground that since what he had said there was not expressed in the name of the Governor, it cannot be regarded as the Govemor 's Order. ' It is true that in that case there was no communication of the Minister 's so called order to the party in whose favour it was made but mention was made of this fact in the judgment only to emphasise that what was said in the note of the Minister had not attained any finality.
The view taken in Bachittar Singh 's(1) case does not run counter to any decisions of this court; but on the other hand is supported by that taken in the State of Punjab vs Sodhi Sukhdev Singh(2).
The appellant 's s first contention must succeed and it must be held that the addition of (1)[1962] Supp. 3 S.C.R. 713.
(2)[1962] 2 section C. R. 371.
395 marks for interview by the Selection Committee was without any validity or legal authority.
Learned Attorney General seemed to suggest that the decision of this Court in Bachittar Singh 's case is contrary to at least three other decisions of this Court.
The first of them is Dattatraya Moreshwar Pangarkar vs The State of Bombay and Ors.(1).
In that case the petitioner who had been detained under the had challenged the legality of the detention on two grounds.
One of those grounds was that the order of confirmation of detention under section 11(1) was not expressed to be made in the name of the Governor as required by article 166(1) of the Constitution.
Dealing with the argument Das J. (as he then was) with whom Patanjali Sastri C.J. agreed has observed as follows at p. 623: "Section 11(1) plainly requires an executive decision as to whether the detention order should or should not be confirmed.
The continuation of the detention as a physical fact automatically follows as a consequence of the decision to confirm the detention order and for reasons stated above, does not require any further executive decision to continue the detention.
It follows, therefore, that the contemplates and require the taking of an executive decision either for confirming the detention order under section 11(1) or for revoking or modifying the detention order under section 13.
But the Act is silent as to the in which the executive decision, whether it is described as an order or an executive action is to be taken.
No particular form is prescribed by the Act at all and the requirements of the Act will be fully satisfied if it can be shown that the executive decision has in fact been taken.
it is at this stage that learned counsel for the petitioner passes on to Article 166 of the Constitution and contends that all executive action of the Government of a State must be expressed (1)[1952] S.C.R. 612.
396 and authenticated in the manner, therein pro vided.
The learned Attorney General points out that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken.
Usually executive decision is taken on the office files by way of notings or endorsements made by the appropriate Minister or officer.
If every executive decision has to be given a formal expression the whole governmental machinery, he contends, will be brought to a standstill.
I agree that every executive decision need not be formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an outsider or is required to be officially notified or to be communicated it should normally be expressed in the form mentioned in Article 166(1) i.e, in the name of the Governor." Thus according to the learned Judge where an order affects an outsider it must normally be made in the name of the Governor.
Here, what is said to be an order is intended to affect outsiders in that the selection committee was required to hold interviews and allot marks to the candidates under different heads.
Further it affects the candidates seeking admission to the Medical College.
Moreover this 'order ' has not remained merely on the files of the Government for enabling its officers to take certain action but was specifically intended to govern the actions of the Selection Committee.
That is an additional reason why it was necessary to express it in the name of the Governor.
After saying what I have already quoted, the learned Judge proceeded to observe in his judgment: "Learned Attorney General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, for the provisions of that Article, like their counterpart in the Government of India 397 Act, are merely directory and not mandatory as held in J. K. Gas Plant Manufacturing Co. (Rampur) Ltd., and Ors.
vs The KingEmperor(1).
In my opinion, this contention of the learned Attorney General must prevail.
It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative.
When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the, validity of the acts done." Thus, even upon the view taken by him that the provisions are merely directory the learned Judge has clearly taken the view that it has to be shown that the decision upon which reliance is placed on behalf of the Government was in fact taken.
In the case before him he found as a fact that such a decision had been taken.
There is no material in this case on the basis of which it could be said that in the present case any decision had at all been taken by the Government in so far as interviews for admission to Medical Colleges were concerned.
According to Mukherjea J. (as he then was) with whom Chandrasekhara Aiyar J., agreed, while cl.
(1) relates to the mode of expression of an executive order, cl.
(2) lays down the manner in which such order is to be authenticated and that when both the requirements are complied with the order would be immune from challenge in a court of law on the ground that it had not been made or executed by the Governor.
Also, according to him, the provisions of (1) ,,154 9. 398 cl.
(1) are directory and not imperative in their character.
In the course of the judgment the learned Judge observed: ". . .
I agree with the learned Attorney General that non compliance with the provisions of either of the clauses would lead to this result that the order in question would lose the protection which it would otherwise enjoy, had the proper mode for expression and authentication been adopted.
could be challenged in any court of law even on the ground that it was not made by the Governor of the State and in case of such challenge the onus would be upon the State authorities to show affirmatively that the order was in fact made by the Governor in accordance with the rules framed under Article 166 of the Constitution" (p. 632).
Mahajan J., (as he then was) expressed no opinion upon this point, which was the second point raised in the case, as according to him, the detention was invalid because the Government had at the time of confirming the order omitted to specify the period during which the detention should con tinue.
It will thus be clear that all the teamed Judges who have dealt with, the provisions of article 166 of the Constitution have definitely held that where the existence of a Government Order is itself challenged by a person who is affected by it the burden is upon the Government to establish that an order was in fact made by the Governor in the manner provided for in the rules of business framed by the Governor under cl.
(3) of article 166.
Even my learned brother does not say that in a case like the present the existence of the Governor 's order is not required to be established by the State.
But according to him here the petitioners have not in fact denied the existence of the Governor 's Order.
In para 20 of the writ petition of Chitralekha she has definitely averred: "Even the Government Order enabling them to award 75 marks is not made available"; and again in para 22 she stated: "As the order, empowering them to award 75 marks as interview marks has so far remained secret in that is has not been made available, this 399 Hon 'ble Court may be pleased to send for the same, as the order falls to be quashed." In reply to these averments a counter affidavit was filed by Dr. J. J. Dharmaraj, Dean, Medical College and Chairman of the Selection Committee for admission to Medical Colleges.
In para 4 thereof he has stated as follows: "The Government by its letter No. PLM dated the 12th July, 1963 directed that the Selection Committee shall interview the candi dates and allot marks the maximum of which shall be 25 per cent of the maximum marks for optional subjects and laid down the criteria for allotting marks in the interview.
" It is abundantly clear from this that reliance was placed not upon any order of the Governor but upon a direction con tained in a certain communication addressed to the Selection Committee.
Mr. Varma, Deputy Secretary to the Government also filed a counter affidavit in para 36 of which he has stated as follows: "The Government gave a direction by its letter No. SD 25 THL 63, dated 6th July, 1963 to the Director of Technical Education (copy of which is marked as, Annexure IV) that in addition to the examination marks in the Optional sub jects, there should be an interview of candidates in which the maximum marks allotted would be 25 per cent of the maximum for the optional subjects.
A similar letter was sent by the Government to the Selection Committee for admission to Medical Colleges.
" Thus, here again, there is no positive averment that the Governor had made an order providing for interview of candidates who, had applied for admission to Medical Col leges.
The only other place where the appellants ' allega tions are dealt with is para 44 of Mr. Varma 's a affidavit: "The Allegations made in some of the petitions that only the first Government Order embodied the decision of the Government and the second Government Order did not embody the decision 400 of the Government but only the decision of the Minister for Education, is untenable.
When an order is issued in the name of the Governor, I submit it is not permissible to enquire whether any advice, and if so, what advice, was tendered by any Minister to the Governor.
" Here, what the Deputy Secretary has done is merely to state the legal position without affirming definitely that an order had in fact been made in the name of the Governor.
It may be mentioned that the two orders dealing with the classification of backward classes and reserving seats in technical institutions were in fact issued in the name of the Governor on July 26, 1963 and copies of those orders have been placed on record.
They are in the appropriate form.
If a similar order had actually been made by the Governor there is no reason why it should not have been filed.
Even in this Court the Assistant Government Advocate has filed on behalf of the State only a copy of the letter sent by a Secretary to the Government and has not only not produced a copy of the Governor 's Order but has not even alleged that such order exists.
Nor again, during the arguments did the learned Attorney General make a categorical statement that the Governor had made an order in regard to the interviews.
That may be because he has not been instructed to say that such order in fact exists.
We have given no opportunity to the appellants to file any further affidavit after the production before us of the Secretary 's letter.
In this state of the material on record can it then be said that the burden which was upon the State to establish the existence of an order of the Governor has been discharged? I do not think that we can ignore the omission of the State to aver categorically that there is in existence an order of the Governor or to make any attempt to produce it or to seek an opportunity to establish its existence by other evidence.
If there is an order of the Governor dealing with the matter nothing would have been easier than saying so and either to produce the original or its copy or to establish its existence by other evidence.
The whole tenor of the affidavits filed on behalf of the State as well as of the argument advanced before us leaves no doubt in my mind that an that there is on the subject is the aforesaid letter of the 401 Secretary to the Selection Committee and nothing more.
In no case has this Court held that such a document can be treated as the Governor 's order or even evidence of the ex istence of the Govrnor 's order.
The two other cases of this Court on which reliance was placed are: The State of Bombay vs Purshottam Jog Naik(1) and Ghaio Mail and Sons vs The State of Delhi (2) which purport to follow Pangarkar 's case(3) also underline the necessity of proof of the existence of the Governor 's Order when what is relied upon is defective in form.
It is these reasons which impel, me to differ from my learned brother on the second point dealt with by him in his judgment.
What I have said above is sufficient for the purpose of disposing of both the appeals.
But in view of the import ance of one of the other points on which my learned brother has expressed his opinion, I would say a few words.
That point concerns the power of the Government of a State to prescribe by an executive order the standards for selection of candidates for admission to technical institutions affiliated to a university.
In Gujrat University vs ShriKrishna(4) the question which was raised in this Court was whether the Gujrat University could lay down and impose Gujrati and/or Hindi in Devnagari script as exclusive media of instruction and examination in institutions other than those maintained by the University and institutions affiliated to the University and Constituent colleges.
One of the important arguments raised in that case was that under Entry 166 of List 1 of the Seventh Schedule the power of co ordination and determination of standards in institutions for higher education or research in scientific and technical institutions.
was conferred upon Parliament and that these matters must be regarded as having been excluded from entry 11 of List 11 of that schedule, which runs thus: "Education, including universities, subject to the Pro visions of Entries 63, 64, 65 and 66 of List 1 and Entry 25 of List III." (1) ; (2) [1959] S.C.R.1424.
(3) ; (4) [1963] Supp. 1 S.C.R.112.
134 159 S.C. 26 402 In the course of his judgment, Shah Y., speaking for the majority (my learned brother Subba Rao J., dissenting) observed: "It is manifest that the extensive power vested in the Provincial Legislatures to legislate with respect to higher scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List 1 and List III mentioned in item II of List H. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, Whether such power is exercised or not, be deemed to be restricted.
If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of 'education including universities power to legislate on that subject must lie with the Parliament.
The plea raised by counsel for the University and for the State of Gujarat that legislation prescribing the medium or media in which instruction should be imparted in institutions of higher education and in other institutions always falls within item II of List II has no force Item II of List II and item 66 of List I must be harmoniously construed.
The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by item 66 of List I must prevail over the power of the State under item 11 of List 11.
It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour. . .
Power to legislate in respect of 403 medium of instruction is, however not a distinct legislative head; it resides with the State legislatures in which the power to legislate on education is vested, unless it is taken away by necessary intendment to the contrary.
Under items 63 to 65 the power to legislate in respect of medium of instruction, having regard to the width of those items, must be deemed to vest in the Union.
Power to legislate in respect of medium of instruction, in so far it has a direct bearing and impact upon the legislative head of co ordination and determination of standards in institutions of higher education or research and scientific and technical institutions, must also be deemed by item 63 of List I to be vested in the Union." (p. 715).
(italics mine) What I have quoted above and particularly the words occur ring in the earlier part of the quotation and those in italics would make it clear that this Court has emphatically laid down that where the question of co ordination and determination of standards in certain institutions like a medical college is concerned the power is vested in the Parliament and even though Parliament may not have exercised that power the State Legislature cannot step in and provide for the determination and co ordination of standards.
It seems to me that by requiring the Selection Committee to add to the marks secured by the candidates at the P.U.C. Examination the marks awarded by the Selection Committee for the interviews and prepare a fresh order of merit on the basis of the total marks so arrived at the State would be quite clearly interfering with the standards for admission laid down by the University.
It seems to me that the standard of any educational institution would certainly be affected by admitting to it candidates of lower academic merit in preference to those with higher academic merit by using the devious method of adding to the qualifications of less meritorious candidates marks at the discretion of the selectors on the basis of interviews.
This is not a universal practice in institutions of higher or technical education in the country and by adopting it the State of Mysore has provided 404 a standard of its own for admission of students to such ins titutions.
It is evidently with a view to prevent the happening of such things that our Constitution has excluded matters pertaining to standards in institutions of higher education and some other institutions from the purview of the State legislatures.
The second portion in italics by me in the above quotation makes it clear that according to the majority of this Court the power to legislate in respect of matters such as the medium of instruction which have a direct bearing and impact upon the legislative head of coordination and determination of standards in the institutions referred to in item 66 of List I is vested in the Union.
Therefore, in each case it will be for the Court to consider whether what is being sought to be done by a State legislature will have a direct impact upon entry 66 of List 1.
In my judgment where any law of the State legislature seeks to vary academic standards for admission to institutions of the kind referred to in Entry 66 its action has a direct bearing upon that entry and the power in this regard is excluded from the purview of entry 11 of List 11.
I may quote a part of paragraph 24 of the majority judgment which my learned brother has quoted.
It reads thus: "The State has the power to prescribe the syllabi and courses of study in the institutions named in entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted.
But the Union Parliament has an over riding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co ordi nation of such standards either on an All India or other basis impossible or even difficult.
" Can it be said that this and other passages in this judgment show that according to the majority the law made by the State Legislature by virtue of entry 1 1 of List II would be bad only if it makes it impossible or difficult for Parliament to exercise its legislative power under entry 66 of List I? Does the judgment mean that it has to be ascertained in each case whether the impact of the State law providing for such standards is so great on entry 66 of List I as to abridge appreciably the central field or, does it not follow from the judgment that if a State Legislature has made a law prescribing a different, even higher, percentage of marks or prescribing marks for extra curricular activities, it would be directly encroaching on the field covered by entry 66 of List I ? The majority judgment after saying what has been quoted above proceeds thus: "Though the powers of the Union and the State are in the exclusive lists, a degree of overlapping is inevitable.
It is not possible to lay down any general test which would afford a solution for every question which might arise on this head.
On the one hand, it is certainly within the province of the, State Legislature to prescribe syllabi and courses of study and of course to indicate the medium or media of instruction.
On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure co ordination and determination of standards, that is, to ensure maintenance or improvement of standards.
The fact that the Union has not legislated, or refrained from legislating to the full extent of its power does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union.
It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict.
Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the 'doctrine of pith and substance of the impunged enactment. . the validity of State legislation would depend upon whether it prejudicially affects co ordination and determination of standards, but not upon the existence 406 of some definite Union legislation directed to achieve that purpose." (p. 716).
These observations do not seem to justify the conclusion that it is only where the State law makes it impossible or difficult for Parliament to exercise its legislative power under entry 66 that the State law would be bad.
According to the decision of the majority the validity of a State legislation would depend upon whether it prejudicially affects the coordination and determination of standards and that if it does so, that is enough to invalidate that legislation.
Interference with academic standards would of necessity affect coordination and determination of standards amongst institutions of similar type all over the country and, therefore, upon the view taken in the Gujarat University case(1) State legislation embodying previsions of the kind referred to in the letter of the Secretary to the Government to the Selection Committee would be bad.
As I understand the decision what it means when it says that regard must be had to the pith and substance of a State law to see whether it is in conflict with the powers of Parlia ment is that conflict must be the direct result of the State law and not one which is merely incidental.
It does not mean that for ascertaining whether there is a conflict one has to gauge the force of the impact of a State law on Parliament 's power.
Thus where a law is in pith and substance ,one which will directly affect Parliament 's power to coordinate and determine standards in the institutions comprised in entry 66 of List I it will be directly in conflict with it and the extent or force of such conflict will make no difference.
Now just as prescribing a medium of instruction for being adhered to in those institutions would, if it has the effect of affecting the standards, which must mean, the academic standard of their institutions, produce a direct impact on Parliament 's power under the aforesaid entry, so would prescribing interviews for admissions to these institutions, since admissions would thereby be made to depend on standards other than purely academic.
I fail to see how else can the impact of the State law on Parliament 's power can be characterised.
The fact that raising of the interview marks from 25 in the.
past to 75 now (which we are told (1) [1963] SUPP.
S.C.R. 112.
407 represents 25% of the total marks for the P.U.C. Examina tion) has raised a furore, only highlights the directness of the impact which was there even when the interview marks were 25%.
To hold otherwise would mean that where interview marks are low in comparison with the total marks for the P.U.C. Examination the impact would be merely oblique or indirect but by some process it will become direct, if the marks are raised to a higher percentage, say 50 per cent or even 100 per cent of the P.U.C. Examination marks.
Surely the directness of the impact would not depend upon its intensity.
Again, the addition of interview marks to the marks secured at the P.U.C. examination by a candidate for admission to an institution of the kind comprised in entry 66 of List I cannot but be said to affect the standard in such institution.
An illustration would make it clear.
Suppose the maximum P.U.C. marks are 300 and interview marks are 600.
Could there be a doubt that the academic standard of the institution would remain unaffected and that the impact on entry 66 is direct ? Now, instead of 600, if the, interview marks are only 30, would not the standard still be affected? May be that the effect on academic merit would be much less than when the maximum interview marks were 600 but still there would be some effect.
In ,either case the effect is the direct consequence of the additional requirement of an interview and therefore the impact of the State law would be direct in both cases.
It is not as if a consequence which is direct can be regarded as oblique or indirect just because it is less significant by reason of the fact that the proportion of interview marks to the P.U.C. marks is low.
Therefore, whether the State law affects the standards of such institutions materially or only slightly has no relevance for the purpose of determining whether it operates in an excluded field or not.
The only test is whether or not the effect it has on the standards is direct.
That is how I understand the majority decision of this Court.
Even upon the view that for a State law to be bad, its impact must be "so heavy or devastating as to wipe out the central field", I think that it is in fact of that kind in this 408 case.
Already by reserving 48 per cent of the total number of seats for scheduled castes and tribes and backward classes the seats available for meritorious candidates have been reduced to 52 per cent.
By providing in addition, for dilution of academic merit by bringing in considerations of the kind set out in the Secretary 's letter, meritorious candidates are likely to be placed in a further disadvantageous position.
According to that letter the matters to be considered at the interview are: (1) General knowledge.
(2) Aptitude and personality.
(3) Previous academic career, including special distinctions, etc.
(4) N.C.C., A.C.C. etc.
(5) Extra curricular activities including sports, social service, debating, dramatics, etc.
While the first and the third of these matters would be of some relevance in deciding who should be allowed a chance to be future doctors what relevance the other three matters have it is difficult to appreciate.
Further "aptitude and personality" would be a matter entirely for the subjective satisfaction of the selectors and is in itself quite vague.
Then again the total marks under these heads are as high as 75 and there is no allocation of marks under the different heads.
Thus if the selectors choose to allocate say 30 or 40 marks for "personality" many meritorious candidates may go far down in the list prepared on the basis of the total of marks at the interview and the P.U.C. Examination.
Since the number of marks for the interview is high and according marks for interviews and allocating marks under different heads is left entirely for the Selection Committee to decide, the impact of the alleged directive on the central field must necessarily be regarded as heavy.
For, its effect would be to lower further the already alarmingly low standards in our educational institutions.
Again, here what we have is not a State law but merely what is claimed to be an executive fiat.
It is true that article 162 says that the executive power of the State is co exten sive with the power of the legislature to legislate and 409 this Court has held in Rai Sahib Ram Jawaya Kapur & Ors.
vs The State of Punjab (1) that the power of the State is not confined to matters over which legislation his already been passed.
But neither article 162 nor the decision of this Court goes so far as to hold that the State 's power can be exercised in derogation of a law made by a competent legislature.
On the other hand the Court appears to have approved of the view taken by two learned Judges of the Allahabad High Court in Motilal vs The Government of the State of Uttar Pradesh (2) that an act would be within the executive power of the State if it is not an act which has been assigned by the Constitution to other authorities or bodies and is not contrary to the provisions of any law and does not encroach on the legal rights of any member of the public.
Here we have the Mysore University Act, section 23 of which provides that the Academic Council shall have power to prescribe the conditions for admission of students to the University.
Now since a competent legislature has conferred this power on a particular body the State cannot encroach upon that power by its executive act.
Thus this is a case where there is not merely an absence of legislative sanction to the action of the State but there is an implied limitation on its executive power in regard to this matter.
Moreover, while the Constitution permits the State without the necessity of any law empowering it to do so to make reservations of seats for the benefit of backward classes and scheduled castes and tribes there is no provision either in the Constitution or in any other law which empowers the State Government to issue directions to selection committees charged with the consideration of applications for admission to any colleges as to what should be the basis of making admissions.
It was said that most of the medical Colleges are owned by the State and the State as the owner of those Colleges was entitled to give directions to its officers as to the mode of selection of persons for admission to those Colleges.
But it seems to me that the matter is not quite as simple as that.
Educational institutions which are affiliated to the University must conform to the pattern evolved by the University and the proprie (1) [1955]2 section C. R. 225 (2) A. I. R. 1951 All. 257 (F. B) 410 tors or the governing bodies of those institutions can claim no right to adopt a different pattern.
The pattern set by the University would necessarily be affected if the standards of admission, teaching, etc., are varied by those who run those institutions.
It is not material to consider whether either the object or effect of the addition of an interview for selecting candidates for admission to the institutions is to improve upon the standards fixed by the Academic Council For, it is to that body to which the legislature has entrusted the whole matter.
It was said that no objection to the Government 's action was taken by the University.
What is important is not whether no objection was taken by the University but whether it consented to the action of the Government.
That it did not consent would appear from the consent memo filed.
in the High Court on behalf of the University a copy of which has been filed in this Court after our judgment was reserved.
Therein the counsel for the University has stated; "Under section 23(b) and section 43 of the Mysore University Act read with section 2(a) of the same Act, the Academic Council alone can prescribe qualifications for admission. 'Me University is not consulted about either Exhibit 'D ' or increasing the interview marks to 25 per cent as per letter dated 6.7.1963.
Interview marks must also be treated as marks given to a subject.
" There is thus no substance in the plea made on behalf of the, State.
This is an additional reason why I think that the provision for interviews is not valid.
My learned brother has dealt at length with the question as to the value of interviews in the matter of making admissions to educational institutions.
I do not think it necessary to pronounce any opinion upon that question in this case and would reserve it for a future occasion.
I would also likewise reserve my opinion on the other points upon which he has expressed him self excepting one, that is, as to the relevance of the consideration of caste in deter mining the classes which are socially and educationally backward.
I would only say this that it would not be in accordance 411 either with cl.
(1) of article 15 or cL (2) of article 29 to require the consideration of the castes of persons to be borne in mind for determining what are socially and educationally backward classes.
It is true that cl.
(4) of article 15 contains ,a non obstante clause with the result that power conferred by that clause can be exercised despite the provisions of cl.
(1) of article 15 and cl.
(2) of article 29.
But that does not justify the inference that castes have any relevance in determining what are socially and educationally backward ,communities.
As my learned brother has rightly pointed out the Constitution has used in cl.
(4) the expression "classes" and not "castes".
Upon the view which I have taken on the two points I have discussed the appeals must be allowed and a direction be issued to the Selection Committee to make the selection ,of candidates solely on the basis of the result of P.U.C. examination.
I would allow them with costs here as well as in the High Court.
ORDER BY COURT In view of the judgment of the majority, the appeals fail and are dismissed.
There will be no order as to costs.
| (1) Vide Vaghoji vs Camaji, I.I. R. 117O The object of contempt proceedings is not to afford protection to judges personally from imputations to which they maybe exposed as individuals, but is intended to be a protection to the public whose interest would be very much affected if, by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which the people have in the administration of justice by it is weakened.
When the court itself is attacked, the summary jurisdiction by way of contempt 'proceedings must be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt.
There are two primary considerations which should weigh with the court in such cases, viz., first whether the reflection on the conduct or character of the judge is within the limits of fair and reasonable criticism, and secondly, whether it is a mere libel or defamation of the judge or amounts to a contempt of the court.
If it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt.
Where the question arises whether a defamatory statement directed against a judge is calculated to undermine the confidence of the public in the competency or integrity of the judge or is likely to deflect the court itself from a strict and unhesitant performance of its duties, all the surrounding facts and circumstances under which the statement was made and the degree of publicity that was given to it would be relevant circumstances.
The question is not to be determined solely with reference to the language or contents of the statement made.
The Executive Committee of a District Bar Association received several complaints against the way in which the Judicial Magistrate and the Revenue Officer of the District disposed of cases and behaved towards litigants and lawyers, and passed a resolution which stated that " it was their considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and lawyers alike " and gave a list of various complaints against the officers.
This resolution was passed in camera, typed out by the President himself and forwarded confidentially to the District Magistrate, Commissioner of the Division, and the Chief Secretary and Premier of the State.
The District Magistrate moved the High Court of Allahabad to take action against the appellants, who had passed the resolution, for contempt of court.
The High Court held that the appellants were guilty of contempt but accepted their apology.
On appeal: Held, that in the light of all the circumstances of the case, the contempt, if any, was only of a technical character and that after the affidavits bad been filed on behalf of the appellants before the High Court, the proceedings against them should have been dropped.
|
N: Criminal Appeal No. 400 of 1986 From the Judgment and order dated 12.2.1986 of the Punjab and Haryana High Court in Crl.
No. 202 M/86.
Dr. Y.S. Chitale, Ravinder Narain, D.N. Misra and P.K. Ram for the Appellants.
H.K. Puri and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave directed against the judgment and order of the Punjab & Haryana High Court dated February 12, 1986 raises a question of some importance.
The question is whether the Food Inspector, Faridkot was competent to lodge a complaint against the appellants under section 20(1) of the Act for commission of an offence punishable under section 16(1) (a) (ii) of the (for short 'the Act ') by virtue of the delegation of powers by the Food (Health) Authority, Punjab under notification dated September 7, 1972 purported to have been issued by him under r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958.
965 Put very shortly, the essential facts are these.
Appellant No. 2, Messrs Food Specialities Limited is a company incorporated under the engaged in the business of manufacturing and selling various well known articles of food including New Maggi 2 minute noodles with sweet sour taste maker while appellant No. 1 A.K. Roy is the Manager, Quality Controller of the Company.
On December 14, 1984 at about 3.30 p.m. the Food Inspector, Faridkot purchased a sample of New Maggi Noodles from the shop of a general merchant for purposes of analysis The Public Analyst by his report dated January 17, 1985 opined that the said article of food contains carmosine and sunset yellow acid coal tar dye instead of caramel as described on the label and was therefore both adulterated as well as misbranded.
He further opined that the label of the article of food did not comply with the requirements of rr.
24 and 32 of the Prevention of Food Adulteration Rules, 1955 regarding the addition of extraneous colouring matter.
On February 1, 1985 the Food Inspector, Faridkot filed a complaint against the general merchant as well as the appellants for having committed an offence punishable under section 16(1) (a) (ii) of the Act for alleged violation of rr. 24, 28, 29 and 32 of the Prevention of Food Adulteration Rules, 1955 by virtue of the delegation of powers by the Food (Health) Authority under notification dated October 10, 1968 purported to have been issued by him under r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958.
During the course of the proceedings, the appellants raised an objection inter alia that r. 3 of the Rules framed by the State Government in purported exercise of powers under section 24(2) read with section 20(1) of the Act, was ultra vires the State Government and alternatively by virtue of the authority derived under r. 3 of the said Rules, the Food (Health) Authority alone had the power to initiate prosecutions for an offence under the Act and therefore he could not legally by the impugned notification sub delegate his powers to launch the prosecutions to the Food Inspector.
The learned Sub Divisional Judicial Magistrate by his order dated December 4, 1985 rejected the preliminary objection raised as to the power of the Food Inspector to launch the prosecution under section 20(1) read with section 9 of the Act, on the ground that the State Government having delegated its powers to the Food (Health) Authority by framing r.3 under section 24(2)(e) of the Act, the Food (Health) Authority was competent to issue the impugned notification and therefore the complaint was validly lodged.
The learned Sub Divisional Judicial Magistrate further proceeded to frame charges against the appellants for having committed an offence punishable 966 under section 16(1) (a) (ii) of the Act.
Thereafter, the appellants moved the High Court by petition under section 482 of the Code of Criminal Procedure, 1973 for quashing the impugned order passed by the learned Sub Divisional Judicial Magistrate taking cognizance of the offence and the consequent framing of the charge by him.
High Court did not go into the question and dismissed the petition in limine, It is argued on behalf of the appellants that as a matter of construction the first part of section 20(1) of the Act makes it clear that a prosecution for offences under the Act not being an offence under section 14 or section 14A, can be instituted only by one of the following authorities, namely: (i) the Central Government or the State Government, or (ii) with the written consent of the Central Government or the State Government, or (iii) a person authorised in this behalf by a general or special order by the Central Government or the State Government, or (iv) with the written consent of a person so authorised.
It is urged that the opening words of section 20(1) 'No prosecution for an offence under this Act . shall be instituted except by ' being of a negative character, the requirements of the section are imperative and that a discretionary power must, in general, by exercised by the authority to which it has been committed.
Emphasis is placed on the words 'in this behalf ' in the second part of section 20(1) of the Act for the submission that the delegation of powers to launch a prosecution by the Central Government or the State Government, by general or special order, must be for a specific purpose in that behalf viz. to authorise the institution of prosecutions under the Act.
It was accordingly submitted that r. 3 of the Punjab Rules enables the Food (Health) Authority to sub delegate his power 'to authorise the launching of a prosecution for an offence under the Act ' to the Food Inspector, was ultra vires the State Government and could not be sustained on the terms of section 24(2) (e) i.e. the general power of the State Government under section 24(2) (e) of delegation of its powers and functions under the Act.
In reply, the learned counsel for the respondents contends that r.3 is in the nature of a general order in terms of section 20(1) of the Act and therefore the State Government has not only delegated its powers 'to launch a prosecution for an offence under the Act ' under section 20(1) to the Food (Health) Authority i.e. the Director of Health Services, Punjab but also under the said rule provision has been made for further sub delegation of his power to authorise the launching of prosecutions under s .
20(1) to the Food Inspectors.
In order to appreciate the contentions it is necessary to refer to 967 the relevant provisions.
Sub section
(1) of section 20 of the Act which is material for our purposes, provides as follows: "20(1).
Cognizance and trial of offences No prosecution for an offence under this Act, not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government.
" Sub section
(1) of section 24 of the Act empowers the State Government to frame rules after consultation with the Committee and subject to the condition of previous publication, for the purpose of giving effect to the provisions of the Act not falling within the purview of section 23.
Sub section
(2) thereof provides that in particular and without prejudice to the generality of the foregoing power, the State Government may make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of section 23.
section 24(2) (e) of the Act provides: "24(2).
In particular, and without prejudice to the generality of the foregoing power, such rules may (e) provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate authorities or to local authorities.
" In exercise of the powers under section 24(2) (e) of the Act, the Punjab Government framed the Prevention of Food Adulteration (Punjab) Rules, 1958.
R. 3 of the Rules reads as under: "Rule 3 Power of Food (Health) Authority The State Government may, by an order in writing delegate its powers to appoint Food Inspectors, to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable by it under the Act as may be specified in the order of the Food (Health) Authority of the State of Punjab" In accordance with r. 3, the State Government issued a notification dated October 10, 1968 purporting to delegate its powers and functions conferred by section 20(1) of the Act viz. to initiate prosecutions 968 for an offence under the Act, to the Food (Health) Authority, to the effect: "In pursuance of the provisions of rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958, the President of India is pleased to delegate to the Food (Health) Authority its powers of appointment of Food Inspectors and to authorise institution of prosecution for an offence under the .
" In terms of the aforesaid notification, the Food (Health) Authority issued a notification dated September 7, 1972 authorising the Food Inspector, Faridkot to launch prosecution under section 20(1) for an offence under the Act, in these terms: "No. IV I Pb 72/7518 2(i) In exercise of the powers conferred by Section 9 of the (Act No. 37 of 1954) read with Rule 8 of the Prevention of Food Adulteration Rules 1955 and the powers delegated vide Punjab Government Notification No. 5575 HB/L 68/29659 dated 10th October, 1968, Shri Jagrup Singh is hereby appointed as Government Food Inspector for all the local areas in the District, in which the official is posted as Government Food Inspector.
In exercise of powers conferred by Section 20 of the (Act No. 37 of 1954) read with Punjab Government Notification No.5575 2HBI 1/68/29659 dated 10th October, 1968 the Director, Health Services, Punjab also authorises the above mentioned Food Inspector to institute prosecution against the persons committing offences under the said Act within the limits of local areas.
" In this appeal, two main questions arise, namely: (i) Whether r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 framed under section 24(2) (e) of the Act being contrary to the legislative mandate contained in section 20(1) of the Act, was ultra vires the State Government and therefore the impugned notification issued by the State Government dated October 10, 1968 purporting to delegate its powers under section 20(1) to the Food (Health) Authority viz. to authorise the institution 969 of prosecutions for an offence under the Act, was liable to be struck down.
Consequently, whether the impugned notification dated September 7, 1972 issued by the Food (Health) Authority authorising the Food Inspector, Faridkot to institute such prosecutions was illegal, bad in law and void ab initio.
(ii) Even if r. 3 of the said Rules could be regarded as a general order issued by the State Government in terms r of section 20(1) of the Act authorising the Food (Health) Authority to launch prosecutions for an offence under the Act by the framing of a rule under section 24(2) (e) of the Act, whether the Food (Health) Authority by the impugned notification dated September 7, 1972 could, in his turn, sub delegate his powers to the Food Inspector, Faridkot.
The ultimate question is whether the terms of section 20(1) of the Act do not postulate further delegation by the person authorised to institute prosecutions for an offence under the Act; he can only give his written consent to such prosecution.
It is common ground that the prosecution in the instant case has not been launched either by or with the written consent of the Central Government or the State Government.
It therefore becomes necessary to ascertain whether the Food Inspector, Faridkot was duly authorised to launch a prosecution.
The Food Inspector had been conferred powers of the State Government under section 20(l) of the Act viz. to initiate prosecutions for an offence under the Act, by the Food (Health) Authority i.e. the Director of Health Services.
A mere perusal of the impugned notification dated September 7,1972 makes it manifest that it was the Director of Health Services and not the State Government who had authorised the Food Inspector to launch prosecutions for an offence under the Act.
It is therefore clear that the Food Inspector is not a person who has been authorised by any general or special order issued by the Central Government or the State Government.
There would be no problem if the State Government were to issue a notification under section 20(l) of the Act conferring authority on the Food Inspector, Faridkot under section 20(l) to launch prosecutions for an offence under the Act as is the practice in the other States.
A careful analysis of the language of section 20(l) of the Act clearly shows that it inhibits institution of prosecutions for an offence under the Act except on fulfillment of one or the other or the two conditions.
Either the prosecutions must be instituted by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government, or the prosecutions 970 should be instituted with the written consent of any of the four specified categories of authorities or persons.
If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act.
The provision contained in section 20(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated.
The terms of section 20 (1) do not envisage further delegation of powers by the person authorised, except that such prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised.
The use of the negative words in section 20(1) "No prosecution for an offence under this Act . shall be instituted except by or with the written consent of" plainly make the requirements of the section imperative.
That conclusion of ours must necessarily follow from the well known rule of construction of inference to be drawn from the negative language used in a statute stated by Craies on Statute Law, 6th edn., p. 263 in his own terse language: "If the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding.
" Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
Other modes of performance are necessarily forbidden.
The intention of the Legislature in enacting section 20(1) was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise.
The first part of section 20(1) of the Act lays down the manner of launching prosecutions for an offence under the Act, not being an offence under section 14 or section 14A. The second part provides for delegation of powers by the Central Government or the State Government.
It enables that prosecutions for an offence under the Act can also be instituted with the written consent of the Central Government or the State Government or by a person authorised in that behalf, by a general or special order issued by the Central Government or the State 3 Government.
The use of the words 'in this behalf ' in section 20(1) of the Act shows that the delegation of such power by the Central Government or 971 the State Government by general or special order must be for a specific purpose, to authorise a designated person to institute such prosecutions on their behalf.
The terms of section 20( 1) of the Act do not postulate further delegation by the person so authorised; he can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in the public interest.
In the case of statutory powers the important question is whether on a true construction of the Act, it is intended that a power conferred upon A may be exercised on A 's authority by B. The maxim delegatus non potest delegare merely indicates that this is not normally allowable but the Legislature can always provide for sub delegation of powers.
The provision contained in sections 24(2) (e) enables the State Government to frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any sub delegation.
That apart, a rule framed under section 24(2) (e) can only provide for delegation of minor administrative functions e.g. appointment of Food Inspectors, Food (Health) Authority etc.
In the case of important executive functions like the one contained in section 20(1) of the Act to authorise launching of prosecutions for an offence under the Act which is in the nature of a safeguard, the Courts may be disposed to construe general powers of delegation restrictively.
Keeping in view the language of section 20(1) and 24(2) (e) of the Act, r. 3 of the Punjab Rules can be treated to be a general order issued by the State Government to authorise the Food (Health) Authority i.e. the Director of Health Services to institute prosecutions for an offence under the Act.
Unfortunately, the draftsmen of r. 3 more or less employed the language of section 20(1) of the Act.
If r. 3 were to be literally interpreted, the words "to authorise the launching of prosecutions" may lead to the consequence that the Food (Health) Authority who had been delegated the power of the State Government under section 20(1) of the Act could, in his turn, sub delegate his powers to the Food Inspector.
Such a consequence is not envisaged by section 20(1) of the Act.
It is well settled that rules framed pursuant to a power conferred by a statute cannot proceed or go against the specific provisions of the statute.
It must therefore follow as a logical consequence that r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must be read subject to the provisions contained in section 20(1) of the and cannot be construed to authorise sub delegation of powers by the Food (Health) Authority, Punjab to the Food Inspector, Faridkot.
If so construed, as it must, it would mean that the Food (Health) Authority was the 972 person authorised by the State Government to initiate prosecutions.
It was also permissible for the Food (Health) Authority being the person authorised under section 20(1) of the Act to give his written consent for the institution of such prosecutions by the Food Inspector, Faridkot as laid down by this Court in State of Bombay vs Parshottam Kanaiyalal, ; and The Corporation of Calcutta vs Md. Omer Ali & Anr., In the premises, the impugned notification dated September 7, 1972 issued by the Food (Health) Authority must be declared as ultra vires the Food (Health) Authority insofar as the purported to delegate his powers to institute prosecutions for an offence under the Act under section 20(1) to the Food Inspector, Faridkot.
It must accordingly follow that the Food Inspector, Faridkot was not competent to lodge the complaint against the appellants for having committed an offence punishable under section 16(1) (a) (ii) read with section 9 of the .
In the result, the appeal must succeed and is allowed.
The judgment and order passed by the High Court and that of the Sub Divisional Judicial Magistrate, Moga are set aside.
P.S.S. Appeal allowed.
| Section 20(1) of the dealing with cognizance and trial of offences provides that no prosecution for an offence under that Act shall be instituted except by, or with the written consent o ' he Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central or State Government.
Section 24(1) empowers the State Government to frame rules for the purpose of giving effect to the provisions of the Act, while section 24(2) (e) states that such rules may provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate or local authorities.
Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 framed by the State Government empowered the State Government to delegate its powers to appoint Food Inspectors, to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable by it under the Act as may be specified m the order of the Food (Health) Authority of the State.
962 In pursuance of the provisions of r. 3 of the Rules the State Government issued a Notification dated October 10, 1968 purporting to delegate its powers and functions conferred by section 20(1) of the Act to institute prosecutions for an offence under the Act, to the Food (Health) Authority.
In terms of that Notification the Food (Health) Authority issued a Notification dated September 7, 1972 authorising the Food Inspector, Faridkot to launch prosecutions under section 20(1) for an offence under the Act.
On February 1, 1985 the Food Inspector, Faridkot filed a complaint against the appellants for having committed an offence punishable under section 16(1) (a) (ii) of the Act for alleged violation of rr. 24, 28, 29 and 32 of the Prevention of Food Adulteration Rules, 1955.
During the course of the proceedings, the appellants raised an objection that r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 framed under section 24(2) (e) read with section 20(1) of the Act was ultra vires the State Government.
Alternatively it was urged that by virtue of the authority derived under r.3 the Food (Health) Authority alone had the power to institute prosecution for an offence under the Act and, therefore, he could not sub delegate his powers to launch the prosecution to the Food Inspector by the Notification dated September 7, 1972.
This preliminary objection was rejected by the Magistrate and he proceeded to frame charges against the appellants.
They thereupon moved the High Court under section 482 of the Code of Criminal Procedure, 1973 for quashing of the aforesaid order taking cognizance of the offence and consequent framing of the charge, but the High Court dismissed the petition in limine.
On the question whether the Food Inspector, Faridkot was competent to lodge a complaint against the appellants under section 20(1) of the Act by virtue of the delegation of powers by the Food (Health) Authority, Punjab under the Notification dated September 7, 1972 issued by him under r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958.
Allowing the appeal by special leave, the Court, ^ HELD 1.
The notification dated September 7, 1972 issued by the Food (Health) Authority is ultra vires the Food (Health) Authority insofar as he purported to delegate his powers to institute prosecutions for an offence under the Act under section 20(1) to the Food Inspector, 963 Faridkot.
The latter was, therefore, not competent to lodge the complaint against the appellants.
[972B C] 2.1 Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.
Other modes of performance are necessarily forbidden.
The intention of the Legislature in enacting section 20(1) was to confer power on the authority specified therein, which power had to be exercised in the manner provided and not otherwise.
[970E F] 2.2 The use of the negative words in section 20(1) that 'no prosecution for an offence under this Act.
shall be instituted except by, or with the written consent of plainly make the requirements of the section imperative.
They inhibit insufficient of prosecutions for an offence under the Act except where it is done by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government, or where the prosecution is instituted with the written consent of any of the four specified categories of authorities or persons.
If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act.
[970C; 969G H; 970A B] Craies on Statute Law, 6th edn., p. 263 referred to.
The use of the expression 'in this behalf ' in section 20(1) shows that the delegation of such power by the Central Government or the State Government by general or special order must be for a specific purpose, to authorise a designated person to institute such prosecutions on their behalf.
The terms of the section do not postulate further delegation of powers by the person authorised.
He can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in public interest.
[966E; 971A B] 4.1.
Rules framed pursuant to a power conferred by a statute cannot proceed or go against the specific provisions of the statute.
The maxim delegatus non potest delegare merely indicates that sub delegation of powers is not normally allowable but the Legislature can always provide for it.
The provision contained in section 24(2) (e) of the Act enables the State Government to frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any sub delegation.
[971C,D] 964 4.2.
Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must, therefore, he read subject to the provisions contained in section 20(l) of the .
It cannot be construed to authorise sub delegation of powers by the Food (Health) Authority, Punjab to the Food Inspector.
So construed, it means that in the instant case, the Food (Health) Authority was the person authorised by the State Government to initiate prosecutions.
[971G H; 972A] 4.3 It was open to the State Government to have issued a notification under section 20(1) conferring authority on the Food Inspector to launch prosecutions for an offence under the Act, as is the practice in other States.
The Food Inspector having been authorised by the Director of Health Service and not the State Government, he was not a person who had been authorised by any general or special order issued by the Central Government or the State Governments.
[969G H] State of Bombay vs Parshottam Kanaiyalal, ; & The Corporation of Calcutta vs Md. Omer Ali & Anr., referred to.
|
Appeal No. 628 of 1961.
Appeal from the judgment and order dated February 24, 1960, of the Kerala High Court in Tax Revision Case No. 22 of 1957.
G. B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
609 V. P. Gopalan Nambiar, Advocate General, State of Kerala and Sardar Bahadur, for the respondent.
A. V. Viswanatha Sastri, section N. Andley, Rameshwar Nath andP. L. Vohra, for the interveners.
November30.
The Judgement of the, Court was delivered by KAPUR, J. Thisappeal by certificate of the High Court of Keralaraises the question of the taxability of sales of tea under the Travancore Cochin General Sales Tax Act, hereinafter termed the Act, and the Rules made thereunder.
The assessment period is 1952 53 and the turnover was of a sum of Rs.3,77,644/ on which a tax of Rs. 5900/11/ was levied.
The appellant before us is the assessee company and the respondent is the Deputy Commissioner of ' Agricultural Income tax and Sales tax.
Mr. A. V. Viswanatha Sastri on behalf of Outcherloney Valley Estates (1938) Ltd. has applied for intervention on the ground that in case of that company also the State or Kerala has, on similar fact;, levied sales tax on certain transaction that the High Court of Kerala has upheld the taxability of the transactions relying on the judgment which is under appeal in the present case, and that the intervener has obtained Special leave to appeal against that judgment and the records are under print.
In view of these circumstances we have allowed that company to intervene in the present appeal.
The assessment was made on March 30, 1955, under r. 33(1) of the Act on the ground that the sales of tea had escaped assessment.
The appeal against 610 that order was unsuccessful and thereafter a further appeal was taken to the Sales tax Appellate Tribunal which by its order dated August 12, 1957, held that the ban under article 286(1)(a) of the Constitution on sales which are outside the State applied, in regard to the sales of 'full lots ' and therefore remanded the case to the Sales tax Officer.
Against that order a revision was taken to the High Court which held that the decision of the Appellate Tribunal in regard to the applicability of article 286(1)(a) was erroneous and therefore the sales were subject to sales tax under the Act.
It is against that judgment and order that the assessee company has come to this court on a certificate of the High Court.
Put shortly, the nature and procedure of sales of teas was this; that the teas were stored in the godowns at Willingdon Island which was in the State of Travancore Cochin., samples of those teas etc., were taken to Fort Cochin which at the relevant time was in the State of Madras.
There by the samples the teas were sold by public auction in lots, some were purchased in their entirety and others in parts and after the consideration money was paid at Fort Cochin delivery orders.
were given to the buyers addressed to the godown keepers at Willingdon Island and actual delivery of tea was taken there.
These teas were then sent out from Willingdon Island in Travancore Cochin for consumption either in other parts of India or were exported out of India.
The taxability of the sales of teas in the manner above mentioned will depend upon whether the sales can be held to have taken place at Willingdon Island i.e. within the territory of Travancore Cochin State and were liable to the imposition of sales tax under the Act or they were what for convenience are called Ire outside sales" and therefore not subject to sales tax in the State of Travancore Cochin.
The argument raised on behalf of the assessee company was that 611 these sales were effected at Fort Cochin which was outside the territory of Travancore Cochin and therefore were not liable to tax because of the ban imposed by article 286(1)(a) of the Constitution.
That Aricle with the Explanation at the relevant time was as follows "article 286(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b). . . . . . .
Explanation : For the purpose of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of ' such sale or purchase for the purpose of consumption in that State, notwith standing the fact that under the general law relating to sale of goods the property in the goods has, by reason of such sale or purchase, passed in another State".
Under the Sale of Goods Act in an auction sale the title in goods passes and the sale is complete as soon as the hammer falls.
The relevant portion of section 64 of the Sale of Goods Act dealing with sale by auction reads as follows In the case of a sale by auction. (1) where goods are put up for sale in lots, each lot is prima 612 facie deemed to be the subject of the separate contract of sale; (2) the sale is complete when the auctioneer announces its completion by the fall of the hammer or in the customery manner; and until such announcement is made any bidder may retract his bid.
" Specific goods in section 2 (14) of the Sale of Goods Act means goodsidentified and agreed upon at the time contract is made.
Therefore on the fall of the hammer theoffer is accepted and if the goods are specified goods the title passes to the buyer.
In the present case as soon as the hammer fell the title in the goods passed to the buyer as the goods were specific goods i.e. goods which were auctioned in full lots and this event took place at Fort Cochin which was in the State of Madras.
But in the case of unascertained goods the title in the goods does not pass to the buyer unless and until the goods are ascertained.
It was for this reason that a distinction was drawn by the Sales tax Appellate Tribunal between goods which were sold in full lots and those which were sold in portions.
In regard to the former it was held that the title passed as soon as the hammer fell but not so in regard to the latter and therefore the sale of "full lots ' was held to have taken place outside the State of Travancore Cochin and of portions of lots inside that State.
The case was consequently remanded to the Sales tax Officer for determining the amount of the tax.
The High Court in revision held that the words in article 286 (1) (a) " 'outside the State" do not mean transfer of ownership, according to the Sale of Goods 613 Act but it was lex situs which determines the taxability of the transaction and the correct position is that the ownership in the goods is transferred according to the law of the place where the goods are situate.
Therefore the sale in the present case was in the State of Travancore Cochin and there is nothing in the Explanation to article 286 (1) (a) which provides to the contrary.
It has been found and it has not been disputed that the title to the goods in the present case passed at Fort Cochin.
The purchase money was paid there and the purchaser obtained from the auctioneer delivery notes directing the godown keepers at Willingdon Island to deliver the goods and only the actual physical delivery of the goods took place at Willingdon Island.
In these circumstances the question is whether the sale was "outside" or "inside sale" as the expressions have been compendiously used in various judgments to indicate sales taking place within a State or without it.
The Explanation to article 286 (1) (a) which has been set out above explains what a sale outside the State is.
According to that Explanation a fiction is created as between two States, one where the goods are delivered for consumption in that State and the other where the title in the goods passes and the former is treated as the situs of the taxable event to the exclusion of the latter.
Therefore where the Explanation applies the difficulty about the situs is resolved but in a case like the present one the difficulty still remains because the explanation does not operate in the sense that the rival States claiming to tax the same taxable event are not the States of delivery for consumption in that State and those where the title in the goods passes.
In somewhat similar circumstances this court in Indian Copper Corporation Ltd. vs State of Bihar (1) held by a majority decision that the opening words of Art: 286 (1) which speak of a sale or purchase taking place and the non obstante clause in (1) ; ,286, 614 the Explanation which refers to the general law relating to the sale of goods, indicated that it was the "passing of property within the State" that was intended to be fastened on, for the purpose of determining, whether the sale in question was "inside" or "outside" the State and therefore subject to the operation of the " 'Explanation", that State in which property passed would be the only State which would have the power to levy a tax on the sale.
At page 286 it was observed: "The conclusion reached therefore is that where the property in the goods passed within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of article 286 (1) (a) unless the Explanation operates".
The majority decision in Indian Copper Corporation Ltd. vs State of Bihar (1) concludes the point in favour of the appellant.
On the facts of this case it was found by the Sales Tax Appellate Tribunal that in regard to the sales of tea in 'full lots ' the property passed at Fort Cochin and this view has not been challenged in this court.
Therefore, on the majority decision in Indian Copper Corporation Ltd. vs State of Bihar (1) the only State which would have the power to levy a tax on such sales would be the State of Madras and so far as Travancore Cochin was concerned, the sale would be an outside sale.
In the present case therefore the sale was an "outside sale" and cannot be said to be an "inside sale" qua Travancore Cochin because the title passed at Fort Cochin which is in the State of Madras.
Apart.
from that the money was paid there and the delivery order was also received there even though the actual physical delivery of goods was made at a Willingdon Island in the State of Tranvancore Cochin.
The fiction created by the Explanation to, article 286 (1)(a) is inapplicable (1)[1961] 2 S.C.R. 276, 615 because there was no delivery as a direct result of sale for the purpose of consumption in any particular State.
There then remains the question of goods which were exported out of India from Willingdon Island.
In the case of those goods 'also it cannot be said that there was a sale inside the 'State of Travancore Cochin because the same considerations will apply to those sales as to the sales already discussed i.e. goods the title to which passed at Fort Cochin were delivered at Willingdon Island and were delivered for 'consumption in parts of India other than Travancore Cochin.
In our view therefore the High Court was in error and the appeal should therefore be allowed and the judgment and order of the High Court of Kerala set aside.
The appellant will have its costs in this court and in the High Court.
Appeal allowed.
| Dr. Vimla purchased a car in the name of her minor daughter Nalini aged about 6 months.
The price of tile car was paid by her.
The transfer of the car was notified in the name of Nalini to the Motor Registration Authority.
The insurance policy already issued was transferred in the name of Nalini after the proposal form was signed by Dr. Vimla.
Subsequently, Dr. Vimla filed two claims on the ground that the car met with accidents.
She signed the claim forms as Nalini.
She also signed the receipts acknowledging the pay ment of compensation money as Nalini.
Dr. Vimla and her husband were prosecuted under sections 120 B, 419, 467 and 468 of the Indian Penal Code.
Both the accused were acquitted by the Sessions Judge.
The State went in appeal and the High Court convicted Dr. Vimla under section 467 and 468 of the Indian Penal Code.
Dr. Vimla came to this Court by special leave.
Held, that appellant was not guilty of the offence under section 467 and 468 of the Indian Penal Code.
She was certainly guilty of deceit because though her name was Vimla, she signed in all the relevant papers as Nalini and made the Insurance Company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any noneconomic loss or injury to the Insurance Company.
The charge did not disclose any such advantage or injury nor was there any evidence to prove the same.
The entire transaction was that of Dr. Vimla and it was only put through in the name of her minor daughter.
Nalini was in fact either a Benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations.
The Insurance Company would not have acted differently even if the car stood in the name of Dr. Vimla.
586 The definition of 'false document ' is a part of the defini tion of forgery ' and both must be read together.
If so read, the ingredients of the offence of forgery relevant to the present case are as follows: (1) fradulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another under his authority ; and (2) making of such a document with an intention to commit fraud or that fraud may be committed.
The expression 'fraud ' involves two elements, deceit and injury to the person deceived.
Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others.
In short, it is a non economic or non pecuniary loss.
A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived.
Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
Haycraft vs Creasy, ; , in re.
London and Globe Finance Corporation Ltd., R. vs Welham, , Kotamraju Yenkatrayadu vs Emperor Mad. 90, Surendra Nath Ghose vs Emperor, Cal. 75, Sanjiv Ratnappa vs Emperor, A. I. R. and Emperor vs Abdul Hamid, A. 1.
R. , referred to.
|
Civil Appeal Nos.
2062 2063/ 78.
Appeals by Special Leave from the Judgment and Order dated 20 9 78 of the Madhya Pradesh High Court in Civil Misc.
Petition No. 403/78.
A. K. Sen, K. K. Adhikari, section K. Gambhir and Miss B. Ramrikhyanai for the Appellant.
N. C. Upadhaya, K. P. Gupta and B. B. Tawakley for Respondents 1 2.
The Judgment of the Court was delivered by KRISHNA IYER, J.
If King Midas suffered from the course of turning into gold everything he touched, Indo Anglian legalism suffers from the pathology of making mystiques of simple words of common usage when they are found in the Corpus Juris.
We cannot afford this luxury of legalistics, the besetting sin of law in action.
This acid comment is provoked by the prolonged debate carried on with logomachic dexterity in this appeal against a meticulous judgment where the semantic complexity and definitional intricacy of innocent words like 'syllabus ', 'courses of instruction ' and 'publish ' and the procedural mechanics for prescribing text books for secondary education set out in a fasciculus of sections have been investigated.
Law, in a democratic, pluralist society spreads over vast spaces where the Constitution of developing countries, like ours, commands the Slate to adventure into a profusion of welfare measures and commits to the judicial process the interpretation of legislation, not to obfuscate but to objectify the meaning of enactments.
The Justice System ceases to be functional if courts do not make the technology of statutory construction serve the betterment of society.
In Cardozo 's lofty diction: "We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without.
None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read ." (1) If a broad and viable reading of statutory language were not adopted by Judges filled with the wish to make things work according to social justice courts may be classed with the dinosaurs.
(1) The Nature of the Judicial Process by Benjamin N. Cardozo.
P. 174, 45 The State of Madhya Pradesh, alive to its obligation to promote education in widest commonalty, with accent on quality and cost, among the impressionable generation, undertook the task of statutory regulation of teaching material for 'primary education ', 'middle school education ', and 'secondary education '.
Then followed, in conformance with the rule of law, executive action, legislative measures, regulatory procedures and infra structures, necessary for the incarnation of a State directed but expert oriented scheme of pre university education.
A painstakingly accurate and comprehensively detailed statement of the project, with an integrated analysis of the statutory provisions and erudite enunciation of the law, is found in the judgment of Bhagwati, J. in Naraindas(1), if we may say so with respect, that a repeat performance here again may be supererogatory.
We read that ruling into this judgment by incorporations, as it were, and content ourselves with a skeletal projection of the legislation with special reference to the key sections, viz, sections 3, 4 and 5 of the Madhya Pradesh Act No. 13 of 1973.
Its title is Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam (hereinafter referred to, for short, as the 1973 Act).
The respondent before us who was the petitioner before the High Court is a private publisher.
It may be cynical to say that textbooks are commodity for consumers of school education and there is big money in the trade especially when the private sector in the book E business has been enjoying a ready market provided by the proliferation of schools and the obligatory purchase of text books, once Government prescribes them.
So, behind the veil of educational excellence formulation of syllabi and competent text books is the vast profit pouring into private publishers.
In our system, unalloyed public interest litigation, through organisations crusading in the field, is yet 'a consummation devoutly to be wished ', and private vested interests are the vociferous ventriloquists of public causes.
Democratic participation in the justice process gains reality only when popular organs blossom from the desert and enter the litigative oasis with fighting faiths.
Here the respondent successfully challenged before the High Court the validity of the prescription of the State 's text book for 'Rapid Reading ', an item in the syllabus for secondary schools.
Once Government books were chased out, the respondent filled the vacuum since prior to the entry of the State his book on the subject had admittedly been legally in vogue.
The State has, by special leave, come up in appeal and secured a stay of operation of the judgment of the High (1) Naraindas Indurkhva vs State of Madhya Pradesh & Ors. ; 46 Court, and its books are back in circulation in the schools.
brief calendar of events shows that since the opening of schools this academic year Government text books have been in use uptil now, barring for about a month between the judgment of the High Court and the stay ordered by this Court.
This bears upon moulding the relief since the benign power under article 226 is a special instrument of justice which, with flexible pragmatism and genius for equity inhibits social trauma even while upholding individual rights.
The writ jurisdiction is geared to community good.
There is a trichotomy of school education in Madhya Pradesh as in many other States Primary, Middle and Secondary.
We are concerned in this case with the text book controversy for secondary schools.
The Board of Secondary Education, Appellant No. 2, was constituted under Act No. 23 of 1965 which also conferred power on it to prescribe courses of instruction in such branches of secondary education as it deemed fit.
Indeed, the Board was a functional entity with expert capability and entrusted with secondary education in its many facets.
Even the power to make regulations was given to the Board and it did make such regulations providing for appointment of Committees on Courses which, in turn, could lay down syllabi in the various subjects and recommend suitable text books when required.
The courses approved by the Committee went to the Board and when sanctioned by the Board found their way in the printed prospectus which served as the guide book for study and examination for the students.
All that we need emphasise here is that the provisions of the 1965 Act and the regulations framed by the Board took good care of the Rule of Law as against behavioral caprice of administrative organs in this branch of education.
In 1973 the legislature enacted Act 13 of 1973, referred to earlier in this Judgment.
The provisions of this Act form the basis of the powers claimed by the appellants and the nidus of rights of the respondent alleged to have been violated.
The scheme of the statute runs as follows: Section 2 contains definitions and we are concerned particularly with section 2(d) which tells us what the legislature means by the expression 'syllabi '.
The Section also defines 'text book ', although there is not much quarrel about its connotation in the case before us.
One of the basic disputes between the parties turns on the conceptual clarity of 'syllabi ' as defined in 2(d).
Section 3 clothes the State Government and the Board with powers vis a vis laying down of syllabi.
To narrow the scope of the dispute we may straightway state that section 3(2) empowers the Board 47 to lay down 'syllabi ' in the case of secondary education.
We may have to take a close up of this provision a little later.
But suffice it to say for the present that the syllabus for 'Rapid Reading ', wh ch is the bone of contention before us, is within the province of the Board to lay down.
We may vivify the discussion by quoting the provisions of direct concern in this case and they are sections 2(d), 3 and 5. "2.(d) syllabi" means a document containing courses of instructions for each standard of primary education, middle school education and secondary education; 3.(1) Subject to the provisions of sub section (2) the State Government may, from time to time, in relation to primary education and middle school education and the Board may, from time to time, in relation to secondary education lay down syllabi and publish the same in such manner as may be prescribed.
(2) The syllabi laid down under the authority of the State Government in the case of primary education and middle school education and by the Board, in the case of the secondary education and in force immediately before the appointed day shall be the syllabi laid down and published for the purpose of sub section (1).
4.(1) The State Government may, by order, prescribe the text books according to syllabi laid down under section 3: Provided that text books for secondary education shall not be prescribed without prior con sultation with the Board.
(2) The text books prescribed by the State Government or the Board according to the syllabi referred to in sub section (2) of section 3 and in force immediately before the appointed day shall, till they are changed in accordance with the provisions of this Act, be the text books prescribed for the purpose of sub section (1).
48 (3) As from the appointed day, no books other than the text books prescribed under sub section (1) or referred to in sub section (2) shall be used in any approved school or recognised school for imparting instructions in accordance with syllabi in primary education, middle school education or secondary education.
The State Government may, if it considers it necessary so to do, undertake the preparation, printing or distribution of text books itself or cause the text books to be prepared, printed or distributed through such agency as it may deem fit on such terms and conditions as may be prescribed.
" Section 2(d) conceputalises 'syllabi '; section 3 statutorises the modus operandi for fixing the 'syllabus '.
Once the syllabus is fixed, the follow up is the prescription of text books in accordance with the syllabus.
Section 4 makes the State Government, the competent authority, to prescribe text books in accordance with the syllabus laid down under section 3.
Of course, even the provisions of text books for secondary education must be made by Government only after prior consultation with the Board.
This is obviously intended to ensure the quality of the text books which sometimes suffers at the hands of unenlightened departmental officers or unheeding political bosses too hubristic to listen to experts in the field.
It is vital to notice that until valid prescription of text books under section 4 (1) the books prescribed and in vogue immediately before the change shall continue; that is to say, the legislature has taken care to avoid a gap when there would be no text books for the students to study and take their examinations.
The scheme of section 4 is for the State Government to prescribe text books.
This may be done in one of the two ways.
Government may select from the private sector when text books are offered by publishers, if they satisfy quality control, price, social perspective and other relevant aspects.
Indeed, many publishers compete in the text book market because it assures purchasers and profit.
However, for a variety of good reasons the State Government may consider it necessary to depart from the practice of picking and choosing from the private sector.
May be, books are of sub standard quality; may be, the paper on which they are printed or the manner and design may be unsatisfactory; may be the cost is such that the poor children may be 49 priced out.
It may also be that Government thinks that more excellence and better educational direction may be imparted to the impressionable generation of students at the secondary school level by the public sector getting such text books compiled in conformity with the syllabi laid down by the concerned authority.
Section 5, therefore, makes it perfectly legitimate for the State Government to n undertake the preparation, printing and distribution of text books itself or cause them to be so done through such agency as it may deem fit and on such terms and conditions as may be prescribed.
In short, the relevant provision creates a facultative public sector for text book production and distribution.
What is significant to note is that the departure from the private sector and the "nationalisation" of text book manufacture may be undertaken only if the State Government "considers it necessary so to do".
Once it comes to that judgment, the competence to deprive the private sector and entrust to the public sector is beyond challenge.
In the present case, one of the subjects of secondary education is "Rapid Reading".
The syllabus has to be laid down in this behalf.
Text books need to be prescribed in conformity with the syllabi and then a decision has to be taken by the Government either to choose extant text books from the private publishers or take over the operation itself if it considers it necessary so to do.
The first appellant, in the present case, chose to exercise its power under section 5 and produced the necessary text book for "Rapid Reading" and distributed it among the students in many schools. 'Until then, the respondent 's books were in use for "Rapid Reading".
Naturally, when his customers vanished and his profit was extinguished he came up to the Court contending that the statutory exercise had not been carried out before preparing E ' and distributing the text books under section 5 and that, for that reason, the Government text books had to be withdrawn as invalid and his books, instead, resuscitated for circulation.
The specific grounds of invalidation relied on by the Writ Petitioner are many and the long Judgment of the High Court has lavished discussion on these aspects.
Counsel have sought to repeat the rival contentions before us.
But we do not think that it is necessary to embark upon the labyrinthine details or prolix analyses which have engaged the learned Judges of the High Court.
Nor do we think that extensive or intensive consideration of the decision in Naraindas 's case (supra) is called for since its ratio is clear and does not come in for serious application in the present dispute.
In this view, we proceed to specificate the precise issues pertaining to the decision as to whether 50 the production and distribution of text books by the State Government, on its own, is liable to be voided on the score of any fatal statutory infirmity.
The laying down of the syllabus is a condition precedent to the prescription of text books, because the courses of instruction follow upon and should be in conformity with the syllabus and text books are in implementation of the courses of instruction.
The first question that falls for consideration, therefore, is as to whether there has been a legally sustainable laying down of the syllabus for "Rapid Reading".
If there has been, the second crucial issue of importance is as to whether the State Government has given consideration to the availability of text books in terms of the 'syllabi ' with the publishers.
If such publishers have offered their text books, Government may consider them from many angles and reach a conclusion that it is necessary for the Government itself to undertake the preparation, printing and distribution of text books in this regard or entrust these operations to a choosen agency.
The question is whether such a consideration had been bestowed by the Government as required by section 5 before it produced and distributed the text books compiled by itself among the students of the secondary schools.
Assuming there is any breach, the next question is whether such non compliance spells invalidation of the text books altogether.
Finally, assuming all the points against the State Government, should the Court make a realistic appraisal of the situation as it exists currently and mould the relief appropriately so that the student community, which has to take the examinations in a couple of months or so, may not be obliged to switch text books belatedly in taking their examinations.
The ultimate concern of the judicial process is not to guarantee the profit of the private producers or to condone every executive sin but, within statutory parameters, to promote the educational welfare of the student community.
The core of the controversy turns on whether there is statutorily solemnised syllabus at all under section 3(2) of the 1973 Act and, whether the State has the facultative power to compile and distribute its own text books under section 5, even if there are private publishers in the field with ready made text books This duplex challenge once disposed of, the other disputes do not merit much discussion.
Naraindas (supra), heavily relied on by the respondent, is impeccable law but inapplicable here.
True many points arise, according to counsel.
But abbreviation, without amputation, does justice to the lis and avoids forensic prolixity, and so we turn the focus on these two points and, in the light of 51 Our answers, structure the relief to promote the interests of the invisible and inarticulate student sector for whose sake the law was made.
The real party, in many litigative battles under article 226, is the community whose processual participation is alien to the adversary system inherited from an individualistic legal culture.
The judges are the guardians of that silent sector until our system of procedure is re structured.
This observation assumes prominence as we shape the remedy finally.
Section 3 as well as section 5 must now come under the legal microscope.
Before that, we must bestow attention on a preliminary plea which respondent 's counsel, encouraged by his success at the High Court level, has urged before us.
He argues that the mere mention of topics in bare outline, such as has been done here by the Board of Secondary Education, does not constitute 'syllabi ' as defined in section 2(d).
To fulfil the statutory requisites, a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law.
If this be valid, no syllabus, no text book; and no text book, the status quo ante; and the book of the respondent being admittedly extant immediately before, it gains legal re incarnation and all the students shall have to do 'rapid reading ' of his book for which they must first buy them.
The Board is the legislative instrument for laying down the syllabi and must be presumed to possess academic expertise sufficient to understand what is a syllabus.
Words of technical import whose signification is familiar for specialists in the field should not be petrified by courts based on verbalism. 'A little learning is a dangerous thing ' and courts should not 'rush in ', tempted by definitional attraction, where experts 'fear to tread '.
Section 2(d) tells us that a syllabus is a document containing courses of instruction.
A broad outline, a brief indication, a demarcation of the topic may well meet with lexical approval.
Moreover, section 2(d) speaks of a 'course of instruction '.
This can be a bare outline, a bald mention of the matter and does not compel particularisation of details, even if it be desirable.
That part is taken care of by the next step of prescription of text books.
A syllabus may helpfully give general features but may not cease to be so solely because only an outline is silhouetted.
For instance, 'music ' without more, is not syllabus, because it may range wildly from weird noises which make music among African tribes but to an Indian ear may offensively amount to 'sound and fury signifying nothing ' to a concord of sweet sounds or continuous flow of micro notes which thrills the West and the East.
But if 'sitar ' or 'violin ' is mentioned it illumines, although it still leaves much for imagination to fill in a hundred details for instruction to be actually imparted in the class.
52 'Courses of Instruction ' in section 2(d) simply means the rubric for teaching, not more, although treacherous vagueness which disables textbook producers from responding to the Government by offering their books may be bad.
It must be a syllabus of courses and so the courses must be spelt out with relevancy, even though with brevity.
To exemplify again, 'Justice ' is not enough, Indian Justice System may fill the bill.
Brief may be, but not blank.
While courts, will not surrender their decisional power to the vagarious experts non interference by courts in fields of specialists, save in gross cases, is a wise rule of guidance.
From this angle, we are not satisfied that for so elusive a subject as 'Rapid Reading ', 'particularise or perish ' should be the test.
The absence of syllabus cannot defeat the case of the State.
We stress, however, that, functionally speaking, the syllabus must tell the publishers and pundits in the concerned field sufficient to enable them to help Government under section 4 to choose text books.
If this minimum is not complied with the court will use the lancet and issue an appropriate writ.
Language permitting, the appropriate interpretational canon must be purpose oriented.
Therefore, the expression "syllabi" must be so interpreted as to fulfil the purpose of sections 3 and 4 which means there must be sufficient information for those concerned to know generally what courses of instruction are broadly covered under the heading mentioned, so that they may offer text books for such courses.
If there is total failure here the elements of syllabi may well be held to be non existent even though experts might claim otherwise.
The law is what the Judges interpret the statute to be, not what the experts in their monopoly of wisdom assert it to be.
Now we move on to section 3 to verify what flaws vitiate the laying down of syllabi.
In this case if we predicate the existence of syllabus the next ingredient it its publication "in such a manner as may be prescribed.
" Publication of the syllabus is thus essential under section 3 and when confronted by this requirement, Shri A. K. Sen, counsel for the State, sought to construe that expression to mean communication by the Board to the Government or other concerned authorities.
To publish, according to him, is to make known to those concerned.
On the contrary, Shri Upadhyaya, counsel for the respondent, argued that "to publish" was more than to communicate to the Government Departments and really meant making known to the community or the concerned section of the community.
Contextually speaking, we are satisfied that 'publication ' means more than mere communication to concerned officials or Departments.
To publish a news item is to 53 make known to people in general; "an advising of the public or making known of something to the public for a purpose" (Black 's Legal Dictionary, p. 1386).
In our view, the purpose of section 3 animates the meaning of the expression 'publish '.
'Publication ' is "the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. an advising of the public; a making known of something to them for a purpose." Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the 'syllabi ' it must publish 'the same ' so that when the stage of prescribing text books according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text books from the private market or compiled under section 5 by the State Government itself.
In our view, therefore, "publication" to the educational world is the connotation of the expression.
Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom.
If this view be sound, the State Government has failed to comply with the requisite of publication of the syllabus before prescribing the text books.
On that ground atone the order of the Government prescribing text books must fail because the condition preceding such prescription, namely, publishing of the syllabi has not been complied with.
We confine our observations only to the item relating to "Rapid Reading ' ' so that there is no need for reopening other subjects and syllabi and to create chaos or uncertainty.
What should be the follow up action that the Court should adopt in issuing the necessary direction on this finding that, for want of publication of the syllabus, the prescription of text books even under section 5 must fail ? Necessarily publication is important and we should insist that the State Government should not dismiss it as a ritual of little moment.
As we have earlier indicated, but may repeat for emphasis that there is an object in publishing the syllabi and this public purpose will be stultified to the prejudice of the school going community if the syllabi ar not made known to the public generally.
Only when they come to know about the syllabi prescribed, representatives in the educational field or in the public sector may be able to tell the State Government what type of text books are available, what kinds of books will make for excellence in teaching and what manner of material will promote 54 the interests of the students in the subjects of study.
If there are existing text books, Government may give consideration for them or may invite opinion of experts on their worth.
Government may pay attention to the cost of the books so made available, their readability, their design and arrangement, the impression that they may produce on the 8 plastic minds and a host of other factors.
All these possibilities may be frustrated if the syllabi are not published.
What has been done in the present case by the State Government is to exercise its power under section 5 to prepare, print and distribute text books of its own compilation.
Certainly, this is well within the power of Government under section 5.
To dispel misapprehension we emphasise that no private publisher has a right under section 4 that his text book shall be prescribed or necessarily considered by Government.
No such right as is claimed by the respondent publisher has, therefore, been violated by the State Government.
We upset Government 's text books, not because the respondent publisher has a right to have his books necessarily considered by the Government, but because the syllabi have not been published prior to the prescription of text books.
We must erase another possible confusion.
Government has plenary power under section 5 to produce its own text books in tune with the syllabi prescribed under section 3.
No private published can quarrel 13 with it on the ground that his profit is affected or that the State sector acquires monopoly in text book production.
The legislature, in its wisdom, has empowered the State to do so and there is no vice of unconstitutionality whatever.
But there is a caveat built into section 5 by the legislature.
Before the State Government undertakes the preparation, printing or distribution of text books or causes them to be so done by any other agency, it must bestow appropriate attention on the wisdom of the policy in the given circumstances.
Section 5 authorises Government to enter the text book field as a monopolist "if it considers it necessary so to do.
" These are weighty words and cannot be slurred over.
Nationalisation of the activity of preparation, printing or distribution of text books is a serious step and resort to that measure calls for a policy judgment.
Government must consider it necessary so to do and this consideration must imply advertence to relevant factors.
Myriad matters, material to a right decision, may be thought of since books are more than collection of information but mental companionship for good or evil.
School children require uplifting books, not such as pollute their minds or inject prurience.
Their creativity must be kindled and not stifled.
The presentation of subjects must be appetising, not inhibiting.
The cost must be within the means of the 55 poor Indian parent.
Availability of sufficient number of books within easy reach so as to avoid a scarcity situation may be yet another criterion.
Indeed, it is beyond exhaustive enumeration to catalogue the considerations.
We do not think that the Court should sit in judgment over Government decisions in these matters save in exceptional cases.
The law is complied with if Government has, before under taking action under section 5, bestowed consideration on matters of relevance which may vary from time to time and from subject to subject.
We need hardly say that Government may like to avoid expenditure from the public exchequer if books, inexpensive and qualitatively acceptable, are easily available.
The decision is that of the Government and it has a wide discretion.
Publishers have no right to complain, and if the mind of the Government has been relevantly applied to the subject, courts must keep their hands off.
The construction we have put upon section 5 gives Government power which is also a responsible power.
Indeed, all public power is a public trust and in that spirit sections 4 and 5 must be executed.
On this basis, the direction that we give is that the State Government will publish, under section 3, the syllabus for 'Rapid Reading ' as a first step.
Thereupon, representations from any relevant quarters, if received, will be considered under section 4 so as to reach a decision on the prescription of the text books according to the syllabus.
This decision may be either to choose some text books available in the field or to compile text books on its own.
If the decision is the latter, Government is perfectly free to undertake preparation, printing and distribution.
It may be right to caution the State while choosing text books from the private sector or preparing such books on their own to remember the vital constitutional values of our nation.
Social justice is the corner stone of our Constitution.
Freedom of expression is basic to our democratic progress.
The right to know, awareness of the implications of a sovereign, secular, socialist republic and its membership and the broad national goals incorporated in the Constitution are fundamental.
When education is a State obligation, when prescription of syllabi and text books falls within the governmental function, when the constellation of values mandated by the Constitution is basic to our citizenship, the play of sections 3, 4 and 5 must respond to this script.
Instruction at the secondary school level must be promotional of these paramount principles.
Ultimately, it is Youth Power that makes for a Human Tomorrow.
The felt necessities of our cultural integration and constitutional creed are fostered essentially at the school level.
Books are not merely the best companions but make or mar the rising generation.
56 We have reached the final.
What remains is to crystallise the conclusions and to formulate the directions.
The syllabus for 'rapid reading ' is not bad as falling short of definitional needs, although it is desirable for the Board to be more expressive when laying it down.
Wilful vagueness in syllabi will invite an adverse verdict. 'Rapid Reading ', as a rubric, in itself, somewhat slippery as a substantive topic and so the syllabus for it also may share that trait.
The new plea urged specifically for the first time at the argument stage in this Court (and controverted by the State) that no syllabus has been laid down, as a fact, for 'Rapid Reading ' is too late to be permitted.
The syllabus for 'Rapid Reading ' suffers invalidation under section 3 because it has not been published.
The publication must precede the prescription af text books under section 4 or their preparation under section 5.
Here the case of the State show that the syllabus was published only on June 30, 1978, while the text books were prescribed in October 1977.
So sections 3 and 4 have been breached and a fresh decision by Government prescribing text books for 'Rapid Reading ' must be taken.
We are not disposed, even as in the case of the plea of no syllabus for 'Rapid Reading ', to consider the nascent discovery of Sri Upadhyaya, counsel for the respondent, that the two text books prescribed for 'Rapid Reading ' were not even in printed existence when they were prescribed.
Judicial proceedings, especially at the earlier stages, should not ordinarily be allowed to become the scene of newly discovered points of contention.
There is no substitute for proper briefs and good home work.
Never can controverted facts he raised de novo here.
We disallow the contention of non existence of text books in print or otherwise, when they were prescribed.
Reverting to the project of providing for the future course of action and to obviate the untowardness of a void in the syllabus and text books, we hold that the State Government shall take a fresh decision under sections 4 and 5 read together.
If publishers of text books or pro bono publico representationists communicate relevant matters bearing on the selection of text books and the wisdom of the State itself under taking the task, Government will give thought to them.
There is no need to wait idefinitely for such representations.
If within one month from they are received, their merits will be examined departmentally.
If, thereafter, Government considers it proper to take over the text book business under section 5 it is free to do so.
We make it clear that the private sector has no "right" and Government 's jurisdiction is wide although the State need not be allergic to private publishers if books of excellence, inexpensive and well designed, are readily available.
57 These directions take care of the future.
But what about the current academic year ? To change horses mid stream may be disastrous.
Throughout the better part of the year, except for around a month, Government text books have been in use.
The examinations are impending.
To harass the young alumni by putting them through fresh books of the respondent (though in circulation last year) is an avoidable infliction.
Therefore, for the nonce, Government books for 'Rapid Reading ' will continue in this year 's classes.
We direct so.
Before the next academic year begins, Government will decide, under sections 4 and 5, on preparing text books itself or selecting from the private sector.
This will be done on or before March 31, 1979.
If the decision taken is either way, the books shall be well stocked by the end of May.
We allow the appeal in part and dismiss in part and as a corollary, ing dates and months but governmental processes are often 'paper logged '. 'The fear that the State Government may not be sufficiently conscious of the due priority to be given to the tasks now set before it has persuaded us to issue these time bound directions.
We allow the appeal in part and dismiss in part and as a corollary, order the parties to bear their costs throughout.
N.V.K. Appeal allowed in part.
| The M. P. Prathmik Middle School Tatha Madhyamik` Shiksha (Pathya Pusthakon Sambandhi Vyavastha) Adhiniyam 1973 empowered the State Government to prescribe text books according to syllabus laid down and to undertake the preparation, printing and distribution of text books.
Section 2(d) of the Act defines "syllabi" as a document containing courses of instructions for each standard of primary, middle school and secondary education.
Section 3 empowers the State Government, in the case of primary and middle school education, and the Board in the dace of secondary education, to lay down the syllabi and publish the same.
Section 4 lakes the State Government the competent authority to prescribe the text books in accordance with the syllabus laid down under section 3.
Section 5 empowers the State Government to undertake the preparation, printing and distribution of text books itself or cause them to be done through such agency as it deems fit and on such terms and conditions as may be prescribed.
The appellant (State Government) exercised its power under section 5 of the Act and produced the necessary text book for "Rapid Reading" an item in the syllabus for secondary schools and distributed it among the students in many schools.
Until then, the books of the respondent, 2 private publisher were in use.
The respondent challenged the action of the State Government in the High Court on the ground that the State Government had not given consideration to the availability of text books in terms of the "syllabi" with private publishers as required by section 5 of the Act, before it produced and distributed the text books compiled by itself among the students of the secondary schools.
The High Court upheld the challenge and held that the statutory exercise envisaged under the Act had not been carried out before preparing and distributing the Government text books.
In the State Government 's appeal to this Court it was contended that (I) as section 2(d) envisages syllabus as a document containing courses of instruction, a broad outline, a demarcation if the topic would be sufficient compliance and that there need not be particularisation of details, and (2) 'publication ' of the syllabus, essential under section 3 means communication by the Board to the Government or the concerned authorities.
On behalf of the respondent it was submitted that the mere mention of topics in bare outline, as in the instant case did not constitute 'syllabi ' as defined in section 2(d) and that to fulfil, 4 196SCI/79 42 the statutory requisites a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law.
Allowing the appeal in part, ^ HELD: 1.
The syllabus for 'Rapid Reading ', suffers invalidation under section 3 because it has not been published.
The publication must precede the Prescription of text books under section 4 or their preparation under section 5.
[56C] In the instant case the syllabus was published only on June 30, 1978 while the text books were prescribed in October, 1977.
So sections 3 and 4 have been breached and a fresh decision by Government prescribing text books for 'Rapid Reading ' must be taken.
[56D] 2.
The State Government shall take a fresh decision under sections 4 and 5 read Together.
If publishers of text books or pro bono publico representationists communicate relevant matters bearing on the selection of text books, their merits will be examined departmentally.
If, thereafter, Government considers it proper to take over the text books business under section 5 it is free to do so.
The private sector has no 'right ' and Government 's jurisdiction is wide, although the State need not be allergic to private publishers if books of excellence, inexpensive and well designed, are readily available.
[56G H] 3.
The laying down of the syllabus is a condition precedent to the prescription of text books, because the courses of instruction follow upon and should be in conformity with the syllabus and text books are in implementation of the courses of instruction.
[50B] 4.
To fulfil the statutory requisites, a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law.
[51D] 5.
No private publisher has a right under section 4 that his text book shall be prescribed or necessarily considered by Government.
No such right as is claimed by the respondent publisher has, therefore, been violated by the State Government.
[54C] 6.
The syllabus for 'Rapid Reading ' is not bad as falling short of definitional needs, although it is desirable for the Board to be more expressive i when laying it down.
Wilful vagueness in syllabi will invite an adverse verdict.
[56A] 7.
A syllabus may helpfully give general features but may not cease to be so solely because only an outline is silhouetted. 'Courses of Instruction ' in section 2(d) simply means the rubric for teaching, not more.
It must be a syllabus of courses and so the courses must be spelt with relevancy, even though with brevity.
[51G, 52A] 8.
Functionally the syllabus must tell the publisher and pundits in the concerned field sufficient to enable them to help Government under section 4 to choose text books.
If this minimum is not complied with the court will use the lancet and issue an appropriate writ.
[52C D] 9.
The expression "syllabi" must be so interpreted as to fulfil the purpose of sections 3 and 4 which means there must be sufficient information for those concerned to know generally what courses of instruction are broadly covered 43 under the heading mentioned, so that they may offer text books for such A courses.
If there is total failure here the elements of syllabi may well be held to be non existent, even though experts might claim otherwise.
The law is what the Judges interpret the statute to be, not what the experts in their monopoly of wisdom assert it to be.
[52E F] 10. 'Publication ' means more than mere communication to concerned officials or departments.
The purpose of section 3 animates the meaning of the expression 'publish '. 'Publication is "the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. an advising of the public; a making known of something to them for a purpose." [52H, 53A B] 11.
The legislative objective is to ensure that when the Board lays down the 'syllabi ' it must publish 'the same ' so that when the stage of prescribing text books according to such syllabi arrives, both the publishers and the Stab Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text books from the private market or compiled under section S by the State Government.
[53C] 12.
"Publication" to the educational world is the connotation of the expression.
Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom.[53D] Only when they come to know about the syllabi prescribed representatives in the educational field or in the public sector may be able to tell the State Government what type of text books are available, what kind of books will make for excellence in teaching and what manner of material will promote the interests of the students in the subjects of study [53H 54A] 13.
Government has plenary power under section 5 to produce its own text books in tune with the syllabi prescribed under section 3.
No private publisher can quarrel with it on the ground that his profit is affected or that the State sector acquires a monopoly in text book production.
The legislature has empowered the State to do so and there is no vice of unconstitutionality whatever.
The caveat built into section S by the legislature is that it authorises Government to enter the text book field as a monopolist "if it considers so to do." [54E F] 14.
Nationalisation of the activity of preparation, printing or distribution of text books is a serious step and resort to that measure calls for a policy judgment.
[54G] 15.
The Court should not sit in judgment over Government decisions in these matters save in exceptional cases.
The law is complied with if Government has, before undertaking action under section 5, bestowed consideration on matters of relevance which may vary from time to time and from subject to subject.
Government may like to avoid expenditure from the public exchequer if books, inexpensive and qualitatively acceptable, are easily available.
The decision is that of the Government and it has a wide discretion.
Publishers have no right to complain, and if the mind of the Government has been relevantly applied to the subject, courts must keep their hands off.
[55B C] Naraindas Indutkhya vs State of M.P. & Ors., ; ; Black 's Legal Dictionary, p. 1386, referred to. 44
|
: Criminal Appeal Nos.
259 64 of 1987.
From the Judgment and Order dated 20.4.
1987 of the Designated Court, Ahmedabad in Terrorist Criminal Case No. 3 of 1985 with Terrorist Criminal Case Nos. 13 of 1985 and 6 of 1986.
T.U. Mehta, A.S, Quereshi, Salman Khurshid, S.H. Kureshi, Mrs. Vimla Sinha, Ifshad Ahmed, Imtiaz Ahmed, Gopal Singh and S.M. Qureshi for the Appellants.
P.S. Poti, M.N. Shroff, Anip Sachthey, Bimal Roy, Kai lash Vasdev, Ms. A. Subhashini, Chava Badri Nath Babu, Girish Chandra, Biman Jad and Ashish Verma for the Respond ents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Tragic trauma of ghastly, in human and beastly behaviour of one community against another depicted for weeks and weeks, in this criminal appeal, forcefully, at times, emotionally still hangs heavily.
What a tragedy? Eight human lives roasted alive.
Five in waiting for gal lows.
Neighbours residing peacefully for generations sharing common happiness and sorrow even playing cricket together suddenly went mad.
Blood thirsty for each other.
Burning, looting and killing became order of the day.
Even ladies attempted to prevent fire brigade from extinguishing fire.
How pathetic and sad.
Still sadder was the manner in which the machinery of law moved.
From accusation in the charge sheet that accused were part of unlawful assembly of 1500 to 2(100 the number came down to 150 to 200 in evidence and the charge was framed against sixty three under Terrorist and Disruptive Activities (Prevention) Act, 1985 (in brief TADA Act) and various offences including Section 302 under Indian Penal Code.
Even from that fifty six were acquitted either because there was no evidence, and if there was evidence against some it was not sufficient to warrant their conviction.
What an affront to fundamental rights and human dignity.
Liberty and freedom of these persons was in chains for more than a year.
For no reason.
One even died in confinement.
All this generated a little emotion during submissions.
But sentiments or emotions, howsoever, strong are neither relevant nor have any place in a court of law.
Acquittal or conviction depends on proof 111 or otherwise of the criminological chain which invariably comprises of why, where, when, how and who.
Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt.
Any crack or loosening in it weakens the prosecu tion.
Each link, must be so consistent that the, only con clusion which must follow is that the accused is guilty.
Although guilty should not escape.
But on reliable evidence truthful witnesses and honest and fair investigation.
No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal norm.
Heniousness of crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt.
Misgiving, also, prevailed about appreciation of evi dence.
Without adverting to submissions suffice it to men tion that credibility of witnesses has to be measured with same yardstick, whether, it is an ordinary crime or a crime emanating due to communal frenzy.
Law does not make any distinction either in leading of evidence or in its assess ment.
Rule is one and only one namely, if depositions are honest and true: Whether the witnesses, who claim to have seen the incident in this case, withstand this test is the issue? But before that some legal and general questions touching upon veracity of prosecution version may be dis posed of.
Trial under TADA Act was assailed, both, because of the Act being ultra vires of the fundamental right guaranteed under Constitution and absence of circumstances justifying its extension to the State of Gujarat.
For the latter no foundation was laid therefore it was not permitted to be raised.
And the former is awaiting adjudication before Constitution Bench from where this appeal was got delinked.
Invoking of provisions of TADA Act, in communal riot, was attacked and it was submitted that a combined reading of Sections 3 and 4 with explanation indicated that the Legis lative intention was to confine the applicability of the Act to secessionist or insurgency activities against the State and not to ordinary crimes for which provisions exist in the Penal Code.
Since the Constitution Bench is already ceased of the matter we are of the opinion that these aspects too can, well be raised there.
From acquittal of thirty seven accused for lack of evidence even though they were arrested in rounding off operation by the military, after cordoning off the area immediately after the incident, it was vehemently argued that it demonstrated that prosecution was not fair and there was deliberated attempt to rope in appellants who were well to do persons of the community not because they had any hand in 112 the crime but for extraneous reasons.
It was emphasised that if persons arrested on the spot residing in the same locali ty could not be identified nor any evidence could be pro duced against them then it was clear that the case against the appellants was also not trustworthy and they were impli cated either because of enemity or for oblique motive.
Although the argument did appear to be attractive on the first flush but it was dispelled soon by the learned counsel appearing for the State who submitted that the mistake in charge sheeting those accused along with appellant was bloated out of proportion.
According to him the incident for which the appellants have been convicted and sentenced was part of a different transaction, although it took place on the same day, than the incident in which thirty seven per sons were rounded off.
The learned counsel explained with help of Colonel Sudhakar PW 21 's statement and, in our opinion, rightly, that these arrests were made in conse quence of action taken by the military, on a different mob, as it included many ladies who did not form part of earlier mob, while attempting to bring situation under control after the incident.
Therefore, it is not possible to draw any adverse inference against prosecution on this score.
Time, place, background and manner in which dastardly crime was committed on 9th June, 1985 in broad daylight at 2.30 p.m. was by and large not in dispute.
What started as agitation in February 1985 against government policy of reservation, in the State of Ahmedabad, turned into communal riots between Hindus and Muslims in March, 1985 which went on, continuously, for long spell resulting in enormous loss of life and property of both the communities.
Situation deteriorated so much that military had to be called and stationed in sensitive areas, in April, 1985, including Dhabgarwad, a large area with Hindus and Muslims residing at places side by side and others exclusively.
In March 1985 riot of shocking magnitude had taken place in this area resulting in mass exodus of Dabgars, a Hindu community, who earned their livelihood by manufacturing musical instruments such as drums and also umbrellas and kites.
When calm was partially restored, due to the military being stationed, some of them returned and some used to visit their houses in day time to look after their property or business.
Maniben, a dabgar, whose one of the daughters had married a muslim but was having strained relations with him, continued to live in her house either because she had no other place to go or she was confident that she shall not be harmed.
Howev er despite stationing of military incidents went on whenever or wherever least opportunity was available with the result that curfew was clamped, continuously, in the area from 7th June, 1985.
As ill luck would have it the military stationed in 113 the area left for some other place at about 1.30 p.m. on 9th June, 1985.
Taking advantage of the vulnerability, due to absence of military.
members of minority community converged from two sides and when they intermingled in the corner somewhere near the house of Maniben or electric power sub station they indulged in most cowardly and shameful act of pushing open the door of her house setting fire to it and then chaining it from outside resulting in death of the lady, her two daughters.
four grand children and son of a neighbour.
Next house set ablaze was of Navin and then many others.
Prosecution version can thus be divided in three parts one, entry of mob from two sides one from Magadom Pole and other kalupur Panchpatti shouting 'kill ' 'cut ' pelting stones, throwing acid bulbs and flambeaus on houses of Hindus while approaching towards Nani Ali Pole.
The second was meeting of the two groups on the corner of Nani Ali Pole and then pushing open the door of Maniben 's house by five appellants armed with burning flambeau, iron pipe, stick, kerosene and bottle of petrol sprinkling of kerosene or petrol inside the house setting it ablaze then coming out of the house closing and shutting the door and chaining it from outside.
The third was entry of appellants thereafter in the house of Navin setting it on fire and then entering in Nani Ali Pole with other members of mob and attacking houses of Kantilal, Kalidas and others.
To prove it the prosecution examined twenty two witness es which were grouped by the trial judge in seven '.
One and the main group consisted of Navin PW 1, Ambalal PW 8, Rati lal PW 9, and Kalidas PW 13.
These were the witnesses who were 'said to have collected at the house of Ambalal from where they witnessed the occurrence and the participation of the appellants in it.
The second group consisted of Kalidas PW 7, Ramanlal PW 10, Manchharam PW 12, who were said to have witnessed the incident from the house of Kalidas Chha ganlal.
The third group consisted of Arun Kumar PW I 1, Jaswantlal PW 14, Dilip Kumar PW 17 and Sanmukhbhai PW 20, who were witnesses who are said to have arrived on hearing the shouts and commotion and witnessed the occurrence from near Dabgarwad Police gate.
The other groups comprised of official witnesses.
No witness was examined from any of the house situated on either side of road from where the two mobs entered or from any of the houses ,situated on the route through which the.
mob passed before it reached/the comer of Nani Ali Pole to establish identity of accused.
Mod which entered from Magadom Pole side was admitted by 114 Ambalal to have passed from,the front of his house.
But he stated that he could not recognise anyone out of them.
Appellants according to prosecution were in the mob which came from Kalupur Panchpatti.
From the place from where the mob entered and to the corner of Nani Ali Pole the mob had to pass from a long route which is inhabited by houses on both sides but not one witness was produced from any of these house nor it was clearly brought out that inmates of all these houses were of minority community only.
For the second group of witnesses who according to prosecution, saw the occurrence from the house top of Kanti Lal the Judge himself found that they were not in a position to see the road in front of house of Navin nor they were in a position to see the road in front of house of Maniben.
He, therefore, observed that so far evidence of these witnesses in respect of attack by the mob on house of Maniben and Navin was concerned it could be relevant only generally that they set fire to the house.
That is they could not be taken to be witnesses to prove that appellants broke open the door of Maniben 's house or set fire to it or chained it from outside.
Nor is the evidence of third group of witnesses helpful as they had collected near the gate of police outpost.
Distance between the gate and place of incident appears to be not less than 200 to 250 feet.
Moreover they collected after the house of Maniben was set on fire.
And it was admitted by PW 1, 8, 9 and 13 that the house of Navin, Kantilal, Ambalal could not be seen from police outpost.
Their testimony thus cannot be taken into account for prov ing second part of the incident which resulted in death of inmates of Maniben 's house.
Fate of the appellants, therefore, hangs on credibility of first group of witnesses.
For its better appreciation it is necessary to set out topography of the place of the incident.
From the map it is clear that the house of Maniben alongwith cluster of six other houses in surrounded on all sides by lanes and roads.
Immediately above her house is house of Navin in North.
Then there are two houses, parallel to each other, in south of her house.
There are three more houses one after the other, in south.
On west side of these is lane.
So is a lane in north side after which there is electric sub station.
On the left of substation there is gap and then there is one house and in its north is the house of Kantilal.
On the east of Maniben 's house is the Dabgarwad road which runs somewhat in semi circle running from Kalupur Panchpatti situated in extreme south east towards west, taking turn from near Dabgarwad Police outpost in the South moving up towards 115 north east in angle tilting slightly from somewhere near cluster of houses round Maniben 's house and then proceeding towards Daryapur.
House of Ambalal from where first set of witnesses had seen the occurrence is on this road from where the road tilts.
It was admitted by PW 1 that house of Amba lal was obliquely situated.
That is clear from the map as well.
If from the two ends of the house, south and north facing the road straight lines are drawn towards west they shall pass through the lane in front of Navin 's house and power station respectively.
Navin PW 1 whose house is situ ated in north of Maniben 's house admitted that electric sub station was in front of Ambalal 's house.
Rati Lal PW 9 stated that on one side of the road was his house and on other of Ambalal.
The house of Ambalal was thus above Mani ben 's house towards north east.
To bring home the guilt the prosecution was required to prove the presence of witnesses, possibility of seeing the incident by them and identification of the appellants.
Importance of first arose as due to riots in March 1985 there was mass exodus of Hindus from Dabgatwad.
Therefore presence of these witnesses was attempted to be challenged as curfew having been imposed from 7th June and Col. Sudha kar, PW 21, incharge of Military stationed, in the area, having stated that no passes were issued to anyone it was not probable that any of the witnesses who claim to have seen the occurrence could have been present.
But it appears to be devoid of any merit in view of unimpeachable testimony of the witnesses that they were present in their houses either because they had come earlier after restoration of partial calm or they had come on the day of occurrence to see their business and they were not prevented by the police even if they did not have any pass.
The Judge had examined this aspect in detail and found from various circumstances, namely, restoration of partial calm due to presence of military personnel, death of eight persons in Maniben 's house including children, rescuing of many persons trapped in the house of Kalidas Chhagan which too was set on fire, admission by accused in their statements under section 313 Criminal Procedure Code etc.
that presence of these witness es could not be doubted.
Further if the Dabgads had not returned and the area was deserted then where was the occa sion for the mob to indulge in this vendetta.
But mere presence of witnesses was not sufficient.
More important was if they saw the incident.
It assumed impor tance due to two reasons one because entire set of witnesses saw the incident from house of Ambalal which was situated upwards on the road towards north east as compared to the house of Maniben, and second that each 116 of the witnesses including Ambalal admitted that the exteri or of Maniben 's or even Navin 's house could not be seen from interior of the house.
From the location of Ambalal 's house it is clear that one could see front of Maniben 's house only if he stood in front of it with face towards west south.
But that is not the prosecution case.
In fact prosecution is silent on this aspect.
There is no whisper of the place from where the incident was seen by the witnesses.
Was it front of house of Ambalal or inside or roof.
Prosecution did not make any effort to remove this defect, obviously, because the investigation itself suffered from this flaw.
Although the defence, also, did not make any attempt to get it clari fied, may be as a part of clever design as to from where these witnesses saw the occurrence but the disadvantage, if any is of prosecution.
As stated earlier, this was very relevant as every witness admitted that from interior of Ambalal 's house the front of neither Maniben 's nor Navin 's house could be seen.
Evidence thus regarding possibility of seeing the appellant from house of Ambalal is very shaky.
The prosecution left an important lacuna.
Unfortunately, each witness ' not only stated that he saw the appellants but they went on to describe with remarkable similarity in detail the article which each accused had in his hand: What is surprising is that accused had come from Kalupur side therefore they could not have been seen prior to their arrival near electric sub station before which everyone had entered house of Ambalal yet it is they and they alone who could be identified from the entire mob.
PW 1 admitted that when he rushed from his house in fear the mob of Kalupur side was 40 or 50 feet away.
He also admitted that he saw these accused for the first time from the house of Ambalal from a distance of 20 feet.
No subsequent witness tried to explain it.
Others had reached admittedly prior to Navin.
Therefore, they could not have had occassion to see the Kalupur mob and if they saw then it must have been at a longer distance.
Statement of PW 9, therefore, that the appellants were leading the mob is very difficult to be accepted.
And if they saw for the first time from house of Ambalal, as stated by Navin and not improved upon by others, then it is very difficult to accept that they could have identified these appellants.
PW 1 further admitted that if anyone stood with his face towards house of Maniben his then his back only could be visible from Ambalal 's house.
That is clear from map as well.
Therefore identification of accused from out of the mob even if they were known from before becomes highly doubtful.
Out of persons who had collected at house of Ambalal only four were examined.
It was admitted by every witness that the last to enter 117 the house were Navin and his father.
Time of entry as given by witnesses was before mixing of the mob at the corner except Ambalal who stated that he came after the mob had collected.
But that appears to be improbable as he was so scared that he ran with his father without even closing door of his house.
And if he would have come out when mob had collected then it is difficult to believe that he would have been spared when his house too was burnt.
Navin was the first witness to be examined.
He stated, categorically, that when he entered the house of Ambalal it was closed from inside.
It was attempted to be improved upon by Ambalal who stated that he kept the door ajar.
But apart from normal human behaviour to close the door, for protection in the background of incident of March and fear generated by shout of 'kill ', and 'cut ', the other witnesses PW 9 and PW 13 too stated that the door was closed after entry of Navin.
In any case the incident having taken place after entry of Navin and the door having been closed thereafter or even ajar or half closed it was necessary for prosecution to establish how did the witnesses see the occurrence when they admitted that the exterior of Maniben 's house or even of Navin could not be seen from inside of Ambalal 's house.
The deficiency in prosecution version was attempted to be explained by the judge by adverting to evidence of PW 13 that Ambalal was opening and closing the door every now and then, therefore there was nothing improbable in witnesses having seen the occurrence.
But the approach was, both, faulty and illegal.
The conclusion by picking up isolated sentence without adverting to other parts of his statement where he admitted that after entry, of all, the doors of the house were closed, and, he was able to identify the appellants when they were effecting entry in house of Maniben and that he did not identify anyone out of the mob till he entered the house of Ambalal was contrary to rule of appreciation of evidence.
Reading the whole statement together makes it consistent with evidence of other witnesses and leaves no room for doubt that opening and closing the door was resort ed to let in the persons who were reaching house of Ambalal due to fear of mob.
And the exercise of opening and closing being over after entry of Navin seeing the mob or identify ing the accused in process of opening and closing was out of question.
The finding of the judge, thus, that 'it is not as if that once the door of the house of Ambalal was closed it was never opened again at any time before these persons escaped from the house of Ambalal . .
Therefore, even though the house of Ambalal is slightly obliquely situated as compared to the house of Maniben, it would not at all be difficult for these witnesses who had hid themselves in the house of Ambalal to have correctly identified the accused ', is not based on appreciation of evidence but on imagination.
118 Thus prosecution version suffered from serious infirmi ty.
Its failure to bring on record evidence which could establish the possibility or even probability of the witness seeing the occurrence demolishes the whole structure.
Since it was admitted to all the P.W.s that the exterior of Mani ben 's house could not be seen from interior of Ambalal 's house the prosecution could succeed in establishing its case only if it could prove that witnesses even then could have seen the occurrence.
The only possibility of seeing the occurrence could be either from the road or standing in front of Ambalal 's shop or if there was any source from inside house of Ambalal.
Evidence is lacking for either.
Possibility of the first two alternative from where incident could have been seen is out of question.
Witnesses were so terrified due to incident of March 1985 that they could not remain outside.
PW 1 was so afraid that he rushed with his father without even closing door of his house.
And if he would have come out when mob had reached house of Maniben was stated by Ambalal then there would have been every possibility of his being attacked.
PW 9 and 13 too were afraid and rushed to Ambalal 's house.
Every time these witnesses reached the door was opened and after entry it was closed.
Last man to enter was Navin Chandra.
No witness has stated that it was opened thereafter even once to look outside.
How did then these witnesses see pushing open of Maniben 's door by appellants, setting fire to her house and chaining from outside.
It was for prosecution to explain.
It could not be taken for granted merely because each witness repeated that they knew the appellant from childhood and each of them was armed with articles mentioned in their hand.
Ambala1 did state that the door of his shop had seven planks joined by hinges.
But the prosecution stopped there.
It did not dare to come out with the case that the witnesses saw from the crevices.
Therefore the prosecution version suffered from a lacuna which was fatal.
The doubt thus created if the witnesses saw the occurrence at a11 is strengthened by subsequent conduct and behaviour of these witnesses.
The prosecution version was that the moment the mob moved from house of Maniben to house of Navin Chandra towards Nani Ali Pole side the witness came out of Ambalal 's house and dashed towards police gate where large number of persons had collected.
But strangely not one of them told it to anyone present there or even to police personnel that Maniben 's house was burnt by appellants.
It was against normal human behaviour as all the appellants were known from before.
The incident had taken place due to communal frenzy.
It is, therefore, difficult to believe that once these witnesses reached Dabgarwad Police gate they would not have shouted at top of their voice that the appellants known as Lallewallas had killed Maniben.
What is further surprising is that they did not disclose the 119 names even to Manchharam whose son had been burnt alive in house of Maniben, nor to anyone in the hospital and kept their mouth sealed till 11th June 1985 and opened it for the first time in the Police Station when their statement was recorded giving graphic description step by step.
Not only that the PW 9 and 13 broke down in cross examination and admitted that they had not seen the appellants setting fire to the house of either Maniben or Navin.
They were saying so by inference as they had seen smoke coming from the houses.
Thus witnesses and circumstances both are against prosecu tion version.
Although there are contradiction on material aspects in statement of these witnesses and arguments were addressed on late recording of evidence, failure to produce the Chief Fire Officer, to establish if house was chained 'from outside, delay in preparation of panchnama of Mani ben 's house etc.
but we consider it unnecessary to discuss them as the prosecution, in our opinion, failed to prove beyond shadow of doubt that the dreadful crime was committed by appellants.
There is thus no option but to acquit these accused.
We, however, hope that our order shall bring good sense to members of both the communities residing in Dabgar wad and make them realise the disaster which such senseless riots result in and they shall in future take steps to avoid recurrence of such incidents and try to resort to the atmos phere that prevailed before March 1985.
For the reasons stated above all these appeals succeed and are allowed.
Reference No. 1 of 1987 for confirmation of death sentence is discharged.
The conviction and sentences of appellants herein under section 3(2)(i) of Terrorist and Disruptive Activities (Prevention) Act, 1985 read with section 34 of the Indian Penal Code, 302 Indian Penal Code read with sections 34,436/149, 449, 143 and 148 of Indian Penal Code are set aside.
The conviction and sentence of Haroon S/o Kalubhai Laliwala, under section 3(2)(ii) of the TADA Act 1985 is also set aside.
The appellants shall be set at liberty forthwith unless they are required in any other connection.
R.S.S. Appeals allowed.
| Respondents No. 2 to 4, regular employees of the appel lant Delhi Transport Corporation, were served with termina tion notices under Regulation 9(b) of the Delhi Road Trans port Authority (Conditions of Appointment & Service) Regula tions, 1952 by the appellant Corporation on the ground that they became inefficient in their work and started inciting other members not to perform their duties.
The three respondents and their Union, respondent No. 1 filed writ petition in High Court, challenging the constitu tional validity of Regulation 9(b), which gave the manage ment right to terminate the services of an employee by giving one month 's notice or pay in lieu thereof.
The Divi sion Bench of the High Court struck down the Regulation, holding that the Regulation gave absolute, unbridled and arbitrary powers to the management to terminate the services of any permanent or temporary employee, and such power was violative of Article 14 of the Constitution.
Hence, the Corporation filed the appeal before this Court, by special leave.
The validity of similar provisions in Para 522 of the Shastri Award, rule 1(i) of the District Board Rules 1926, Part V, Regulation 13 of Indian Airlines Employees ' Service Regulations, Regulation 48 of Air India Employees ' Service Regulations and also the clause in the contract of appoint ment in respect of employees of Zilla Parishad and the New India Assurance Company, also came up for consideration in the connected appeals and applications filed before this Court.
It was contended on behalf of the Delhi Transport Corpo ration that there was sufficient guideline in Regulation 9(b) and the power of termination, properly read, would not be arbitrary or violative of Article 14 of the Constitution, that the Court would be entitled to obtain guidance from the preamble, the policy and the purpose of the Act and the power conferred under it and to see that the power was exercised only for that purpose, that even a term like 'public interest ' could be sufficient guidance in the matter of retirement of a government employee, and such a provision could be read into a statute even when it was not otherwise expressly there, that it was well settled that the Court would sustain the presumption of constitutionality by con sidering matters of common knowledge and to assume every state of facts which could be conceived and could even read down the section, if it became necessary to uphold the validity of the provision, that the underlying 144 rationale of this rule of interpretation, or the doctrine of reading down of a statute being that when a legislature, whose powers were not unlimited, enacted a statute, it was aware of its limitations, and in the absence of express intention or clear language to the contrary, it must be presumed to have implied into the statute the requisite limitations and conditions to immunise it from the virus of unconstitutionality, that since every legislature intended to act within its powers, in a limited Government, the legislature would attempt to function within its limited powers and it would not be expected to have intended to transgress its limits, that the guidelines for the exercise of the power of termination simpliciter under Regulation 9(b) could be found in the statutory provisions of the 1950 Act under which the regulations had been framed, the pream ble; Sections 19, 20 and 53, the context of Regulation 9(b) read with Regulations 9(a) and 15, that even for the exer cise of this power, reasons could be recorded although they need not be communicated which would ensure a check on the arbitrary exercise of power and effective judicial review in a given case, ensuring efficient running of services and in public interest and the regulations in question were paral lel to, but not identical with, the exceptions carved out under proviso to Article 311(2), that even the power of termination simipliciter under Regulation 9(b) could only be exercised in circumstances other than those in Regulation 9(a), i.e. not where the foundation of the order was 'mis conduct ', the exercise of such power could only be for purposes germane and relevant to the statute, that the principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma and the principles of natural justice were not incapa ble of exclusion in a given situation, if importing the right to be heard has the effect of paralysing the adminis trative process or the need for promptitude or the urgency of the situation so demands, natural justice could be avoided; that the words "where it is not reasonably prac ticable to hold an enquiry" may be imported into the regula tion, that where termination took place by the exclusion of audi alteram partem rule in circumstances which were circum scribed and coupled with the safeguard of recording of reasons which were germane and relevant, then the termina tion would not render the regulation unreasonable or arbi trary, and if the regulation was read in this manner it could not be said that the power was uncanalised or unguid ed, that under ordinary law of "master and servant" the Corporation was empowered by the Contract of Service to terminate the services of its employees in terms thereof; the Declaration in Brojo Nath 's case that such a contract was void under section 23 of the Indian Contract Act or opposed to public policy offending the Fundamental Rights and the Directive Principles was not sound in law; as a master, the Corporation had unbridled right 145 to terminate the contract in the interests of efficient functioning of the Corporation or to maintain discipline among its employees, and if the termination, was found to be wrongful, the only remedy available to the employees was to claim damages for wrongful termination but not a declaration as was granted in Brojo Nath 's case.
On behalf of the workmen/intervenors, it was submitted that provision of any rule that service would be liable to termination on notice for the period prescribed therein contravened Article 14 of the Constitution, as arbitrary and uncontrolled power was left in the authority to select at its will any person against whom action would be taken; that Articles 14, 19 and 21 were inter related and Article 21 did not exclude Article 19 and even if there was a law providing a procedure for depriving a person of personal liberty and there was, consequently no infringement of fundamental right conferred by Article 21, such law in so far as it abridged or took away any fundamental right under Article 19 would have to meet the challenge of that Article, that violation of principle of natural justice by State action was viola tion of Article 14 which could be excluded only in excep tional circumstances, and, therefore, a clause which autho rised the employer to terminate the services of an employee, whose contract of service was for indefinite period or till the age of retirement, by serving notice, and which did not contain any guidance for the exercise of the power and without recording reasons for such termination, violated the fundamental rights guaranteed under Articles 14, 19(1)(g) and 21 and principles of natural justice and was void under Section 2(g) of the , and unforce able under Section 2(hi; that since audi alteram partem was a requirement of Article 14.
and conferment of arbitrary power itself was contrary to Article 14, the rule in ques tion could not be sustained as valid; that the Constitution al guarantees under Articles 14 and 21 were for all persons and there could be no basis for making a distinction between 'workmen ' to whom the Industrial Disputes Act and other industrial laws applied and those who were outside their purview, and the law applicable to the former could only add to and not detract from the rights guaranteed by Part 111 of the Constitution; that the power to terminate the services of a person employed to serve indefinitely or till the age of retirement could be exercised only in cases of proved misconduct or exceptional circumstances having regard to the Constitutional guarantee available under Article 14, 19(1)(g) and 21 and unless the exceptional circumstances were spelt out, the power to terminate the services would cover both permissible and impermissible grounds rendering it wholly invalid, particularly because, the requirement of audi alteram partem which was a part of the guarantee of 146 Article 14 was sought to be excluded, and there could be no guidance available in the body of the law itself, since the purpose for which an undertaking was established and the provisions dealing with the same in the law could provide no guidance regarding exceptional circumstances under which alone the power could be exercised, that the question in volved, in the instant cases was not the exercise of power which an employer possessed to terminate the services of his employee, but the extent of that power; that provisions of Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, could not be rendered constitutional by reading the require ment of recording reasons and confining it to cases where it was not reasonably practicable to hold an enquiry and read ing it down further as being applicable to only exceptional cases would not be permissible construction and proper; that the Regulation conferred arbitrary power of leaving it to the DTC Management to pick and choose, either to hold an enquiry or terminate the services for the same misconduct and there was nothing in the provisions of the Act or the regulations from which the Management could find any guid ance and, therefore, in order to conform to the constitu tional guarantees contained in Articles 14, 19(1)(g) and 21, the regulation would have to make a distinction between cases where services were sought to be terminated for mis conduct and cases of termination on grounds other than what would constitute misconduct; that regulation 9(b) deliber ately conferred wide power of termination of service without giving reasonable opportunity to an employee even if he was regular or permanent employee, in addition to regulation 15 which provided for dismissal or removal after a disciplinary enquiry, thus, the intention of the regulation making au thority was clear and unambiguous; the provision was not capable of two interpretations, and consequently, the ques tion of reading down did not arise, and reading down in the instant cases involved not interpretation of any single word in regulation 9(b) but adding a whole clause to it, which amounted to rewriting the provisions, which courts had refused to make up for the omission of the legislature, and would inevitably drain out Article 14 of its vitality, and the right to equality which was regarded as a basic feature of the Constitution, and subject permanent employees of the DTC to a tremendous sense of insecurity which is against the philosophy and scheme of the Constitution, that unless the provision of the Constitution itself excluded the principles of natural justice, they continued to be applicable as an integral part of the right to equality guaranteed by the Constitution, that as the employees of the DTC were not Government employees, Article 311(2) was not applicable, and Article 14 fully applied to them, including the principles of natural justice.
147 On behalf of the Indian Airlines Corporation and the Air India, which filed intervention applications, it was submit ted that there had been distinction between the discharge simpliciter and dismissal from service by way of punishment, that the effect of the judgments of this Court in the Cen tral Inland Water 's case and West Bengal 's case was to take away the right of the employer to terminate the services of an employee by way of discharge simpliciter, that this Court had recognised the existence of the inherent right of an employer to terminate the services of an employee in terms of the contract of employment and also under the various labour enactments, that a plain reading of the amended Regulation 13 of the Indian Airlines Employees ' Regulations and a cumulative reading of the amended regulations 48 and 44 of the Air India Employees Service Regulations clearly established that the vice, if any, of arbitrariness had been completely removed and that the power to terminate had been vested with the Board of Directors, and not with any indi vidual, and sufficient guidelines made available to the Board to exercise the restricted and limited power available to the employer under these regulations.
On behalf of another intervenor, New India Assurance Co., it was submitted that the Central Inland Water 's case was erroneous, insofar as it made complete negation of power of the employer to terminate and rendered the termination illegal even where the employer had made all the necessary investigation and had given hearing to the employee con cerned before making the order, and took in even private employment; therefore, the judgment of this Court should be read down and made applicable prospectively.
In Civil Appeal No. 4073 of 1986 it was contended on behalf of the Bank employee whose services were terminated under para 522 of the Shastri Award, that mere failure of the employee to mention the loan taken by him from another branch of the Bank, which was repaid subsequently, had deprived him of his livelihood, and his services were termi nated without charge of 'misconduct ' and without an enquiry, and paragraph 522 of the Shastri Award gave no indication as to on what conditions this arbitrary uncontrolled power could be used to get rid of one or more permanent employees for "efficient management of Banks" on subjective opinions or suspicion not tested in enquiry into facts, and that this provision provided for "insecurity of tenure" for lakhs of permanent employees; Articles 14, 19(1)(g) and 21 and the integrated protection of these Fundamental Rights excluded the "doctrine of pleasure" and insisted on security of tenure "during good behaviour", and the right to livelihood could not be rendered precari 148 ous or reduced to a "glorious 'uncertainty", that no princi ple of interpretation permitted reading down a provision so as to make it into a different provision altogether differ ent from what was intended by the legislature or its dele gate, and there could not be any reading down which was contrary to the principles of interpretation; that if two provisions existed, firstly to remove from service after holding an enquiry on a charge of 'misconduct ' and secondly, without serving a charge sheet or holding an enquiry, all provisions for holding enquiry would be rendered otiose and would be reduced to a mere redundancy, that the Court had a duty to correct wrongs even if orders had been made which were later found to be violative of any fundamental right and to recall its orders to avoid injustice; that substan tive provision of para 522 could not be controlled or cur tailed effectively so as to confine its operation within narrow constitutional limits; that it was not the duty of the court to condone the constitutional delinquencies of those limited by the Constitution if they arrogated uncon trolled unconstitutional powers, which were neither neces sary nor germane for supposed efficiency of services in the Banks as a business enterprise, and that in a system gov erned by rule of law, discretion when conferred upon execu tive authorities must be confined within clearly defined limits.
In Civil Appeal No. I 115 of 1976, the appellant employ ee of the Zila Parishad contended that his services were terminated on account of the vindictiveness of some of the employees of the respondent, and without enquiry.
The em ployer submitted that the termination order was passed on the basis of the condition in the mutually agreed terms of contract of appointment, and resolution passed by the Board, and that Rule 1(i) of District Board Rules, 1926, Part V gave right to both the parties to terminate the employment on one month 's notice.
On the questions (i) whether Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, was arbitrary, illegal, discriminatory and violative of audi alteram partem and so constitutionally invalid and void; and (ii) whether the Regulation could be interpreted and read down in such a manner as to hold that it was not discriminatory, or arbi trary and did not confer unbriddled and uncanalised power on the authority to terminate the service of an employee, including a permanent employee, without any reason whatsoev er.
Dismissing Civil Appeal No. 2876 of 1986 (appeal by the Delhi Transport Corporation), allowing Civil Appeal No. 1115 of 1976, and directing other matters to be placed before a Division Bench, in ac 149 cordance with the majority decision (per Ray, Sharma, Sawant and K. Ramaswamy, JJ.) this Court, HELD: Per Ray, J.: 1.
I Regulation 9(b) of the Delhi Road Transport Author ity (Conditions of Appointment and Service) Regulations, 1952 which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing to the employee before passing the orders is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Article 14 of the Constitution.
There is no guide line in the Regulations or in the Delhi Road Transport Authority Act, 1950 as to when or in which cases and circum stances this power of termination by giving notice or pay in lieu thereof can be exercised.
[264G, 285C] 1.2 Government Companies or Public Corporations which carry on trade and business activity of State being State instrumentalities, are State within the meaning of Article 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part 111 as well as to conform to the directive principles in Part IV of the Constitution.
In other words, the Service Regulations or Rules framed by them are to be tested by the touchstone of Article 14 of the Constitution.
Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust.
[264H, 265A B] 1.3 The 'audi alteram partem ' rule which, in essence, enforces the equality clause in Article 14 of the Constitu tion is applicable not only to quasi judicial orders but to administrative orders affecting prejudicially the party in question unless the application of the rule has been ex pressly excluded by the Act or Regulation or Rule which is not the case here.
Rules of natural justice do no supplant but supplement the Rules and Regulations.
Moreover, the Rule of Law, which permeates the Constitution of India, demands that it has to be observed both substantially and procedurally.
Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination.
[265D E] Regulation 9(b) does not expressly exclude the application of the 150 'audi alteram parterm ' rule and as such the order of termi nation of service of a permanent employee cannot be passed by simply issuing a month 's notice or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported order is made.
[265F] 1.4 Considering from all these aspects Regulation 9(b) is illegal and void, as it is arbitrary, discriminatory and without any guidelines for exercise of the power.
It confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the princi ples of natural justice.
It is also void under Section 23 of the Contract Act, as being opposed to public policy and also ultra vires of Article 14 of the Constitution.
[265E, 265B C, 266G] Moti Ram Deka Etc.
vs General Manager, NEF Railways, Maligaon.
Pandu, Etc., ; ; Parshotam Lal Dhingra vs Union of India, ; ; Shyam Lal vs The State of Uttar Pradesh and Anr., ; ; Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar & Ors., ; ; Jyoti Pershad vs The Administrator for the Union Territory of Delhi, ; ; State of Orissa vs Dr. (Miss) Binapani Devi & Ors., ; ; A.K. Kraipak of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791; Air India Corporation vs V.A. Rebello & Ant., AIR 1972 S.C. 1343; The Workmen of Sudder Office Cinnamara vs The Manage ment, ; Tata Oil Mills Co. Ltd. vs Work men & Anr.; , ; Maneka Gandhi vs Union of India, [1978] 2 SCR 621; E.P. Royappa vs State of Tamil Nadu and Anr. ; ; Municipal Corporation of Greater Bombay vs Malvenkar & Ors., ; ; Manohar P. Kharkher and Anr.
vs Raghuraj & Anr., ; 1.
Michael & Anr.
vs Johnaton Pumps India Ltd., ; ; Sukhdev Singh & Ors.
vs Bhagat Ram Sardar Singh Raghu vanshi & Anr.; , ; S.S. Muley vs J.R.D. Tata & Ors., ; West Bengal State Electricity Board & Ors.
vs Desh Bandhu Ghosh and Ors., [1985] 3 SCC 116; Workmen Of Hindustan Steel Ltd. and Anr.
vs Hindustan Steel Ltd. and Ors., ; ; O.P. Bhandari vs Indian Tourism Development Corporation Ltd. & Ors.
, ; ; Central Inland Water Transport Corporation Ltd. & Anr.
vs Brojo Nath Ganguly & Anr., and Delhi Transport Undertaking vs Balbir Saran Goel, ; , referred to.
2.1 An Act can be declared to be valid wherein any term has been 151 used which per se seems to be without jurisdiction, but can be read ' down in order to make it constitutionally valid by separating and excluding the part which is invalid or by interpreting the word in such a fashion as to make it con stitutionally valid and within jurisdiction of the legisla ture which passed the said enactment, by reading down the provisions of the Act.
This however, does not under any circumstances, mean that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulations that it confers arbitrary uncana lised, unbridled unrestricted power to terminate the serv ices of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Article 14 of the Constitution, it can be read down to save the said provision from constitutional invalidity, by bring ing or adding words in the said legislation, such as saying that it implies that reasons for the order of termination have to be recorded.
[271C F] 2.2 In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning that it can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity.
Therefore, it is impossible to hold by reading down the provisions of Regula tion 9(b) framed under section 53 of the Delhi Road Trans port Act, 1950 read with Delhi Road Transport (Amendment) Act, 1971 that the said provision does not confer arbitrary, unguided, unrestricted and uncanalised power without any guidelines on the authority to terminate the services of an employee without conforming to the principles of natural justice and equality as envisaged in Article 14 of the Constitution of India.
[271F H, 272A] Union of India & Anr.
vs Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131; Roshan Lal Tandon vs Union of India, ; ; Commissioner of Sales Tax, Madhya Pradesh, Indore & Ors.
vs Radhakrishan & Ors.
, ; ; In Re The Hindu Women 's Rights to Property Act, 1937, and the Hindu Women 's Rights to Property (Amendment) Act, 1938 and in Re a Special Reference under Section 213 of the Government of India Act, 1935, ; R.M.D. Chamarbaugwalla vs The Union of India; , ; R.L. Arora vs State of Uttar Pradesh & Ors.
, ; and The Mysore State Electricity Board vs Bangalore Woollen, Cotton and Silk Mills Ltd. & Ors., [1963] Supp.
2 SCR 127, Jagaish Pandey vs The Chancellor of Bihar & Anr.
, ; , referred to.
H.N. Seervai: Constitutional Law of India, Third Edi tion, p. 119, referred to.
152 Per Sharma, J. 1.1 The rights of the parties in the present cases cannot be governed by the general principle of master and servant, and the management cannot have unrestricted and unqualified power of terminating the services of the employ ees.
In the interest of efficiency of the public bodies, however, they should have the authority to terminate the employment of undesirable, inefficient, corrupt, indolent and disobedient employees, but it must be exercised fairly, objectively and independently; and the occasion for the exercise must be delimited with precision and clarity.
Further, there should be adequate reason for the use of such a power, and a decision in this regard has to be taken in a manner which should show fairness, avoid arbitrariness and evoke credibility.
And this is possible only when the law lays down detailed guidelines in unambiguous and precise terms so as to avoid the danger of misinterpretation of the situation.
An element of uncertainty is likely to lead to grave and undesirable consequences.
Clarity and precision are.
therefore, essential for the guidelines.
[272D F] 1.2 Regulation 9(b) of the Delhi Road Transport Authori ty (Condition of Appointment and Service) Regulation, 1952 cannot, therefore.
be upheld for lack of adequate and appro priate guidelines.
[272G] Per Saw,ant, J. 1.1.
There is need to minimise the scope of the arbi trary use of power in all walks of life.
It is inadvisable to depend on the good sense of the individuals.
however high placed they may be.
It is all the more improper and undesirable to expose the precious rights like the rights of life.
liberty and property to the vagaries of the individual whims and fancies.
It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness do not go with the posts, however high they may be.
There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility.
The presumption is neither legal nor rational.
History does not support it and reality does not warrant it.
In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.
[276E F] 1.2 Beyond the self deluding and self asserting right eous presumption, there is nothing to support the 'high authority ' theory.
This 153 theory undoubtedly weighed with some authorities for some time in the past.
But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it.
[278A B] 1.3 The employment under the public undertakings is a public employment and a public property.
It is not only the undertakings but also the society which has a stake in their proper and efficient working.
Both discipline and devotion are necessary for efficiency.
To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimiscal.
With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired.
[276G H, 277A] 1.4 The right to life includes right to livelihood.
The right to livelihood, therefore, cannot hang on to the fan cies of individuals in authority.
The employment is not a bounty from them nor can its survival be at their mercy.
Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental.
Fundamental rights can ill afford to be consigned to the limb of undefined premises and uncertain applications.
That will be a mockery of them.
[277B] 1.5 Both the society and the individual employed, there fore, have an anxious interest in service conditions being well defined and explicit to the extent possible.
The arbi trary rules which are also sometimes described as Henry VIII Rules, can have no place in any service conditions.
[277C] Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh Raghu vanshi & Anr.
; , ; Maneka Gandhi vs Union of India, ; The Manager, Government Branch Press & Ant.
vs D.R. Belliappa, ; ; The Manag ing Director, Uttar Pradesh Warehousing Corporation & Anr.
vs Vinay Narayan Vajpayee; , ; A.L. Kalra vs The Project & Equipment Corporation of India Ltd., ; ; Workmen of Hindustan Steel Ltd. & Anr.
vs Hindustan Steel Ltd. & Ors.
, ; ; West Bengal State Electricity Board & Ors.
vs Desh Bandhu Ghosh & Ors., [1985] 2 SCR 1014; Olga Tellis & Ors.
vs Bombay Municipal Corpora tion & Ors.
, [1985] Supp. 2 SCR 51; Union of India & Anr.
vs Tulsiram Patel& Ors., [1985] Supp. 2 SCR 131; Cen tral Inland Water Transport Corporation Ltd. & Anr.
vs Brojo Nath Ganguly & Anr.
, ; O.P. Bhandari vs Indian Tourism Development Corporation Ltd. & Ors. ; ; N.C. Dalwadi vs State of Gujarat, [1987] 3 154 SCC 611; M.K. Agarwal vs Gurgaon Gramin Bank & Ors., [1987] Supp.
SCC 643 and Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch etc.
vs Union of India & Ors., , referred to.
2.1 The doctrine of reading down or of recasting the statute can be applied in limited situations.
It is essen tially used, firstly, for saving a statute from being struck down on account of its unconstitutionality.
It is an exten sion of the principle that when two interpretations are possible one rendering it constitutional and the other making it constitutional the former should be preferred.
The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its viola tion of any of the provisions of the Constitution.
The second situation which summons its aid is where the provi sions of the statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made.
However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience.
In such circumstances, it is not possible for the Court to remake the statute.
Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it.
If the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided.
The doctrine can never be called into play where the statute requires extensive additions and deletions.
Not only it is no part of the court 's duty to undertake such exercise, but it is beyond its jurisdiction to do so.
[288F H, 289A B] Re Hindu Women 's Rights to Property Act, 1937, and the Hindu Women 's Rights to Property (Amendment) Act, 1938 etc., ; Nalinakhya Bysack vs Shyam Sunder Halder & Ors.
, ; ; R.M.D. Chamarbaugwalla vs The Union of India, ; ; Kedar Nath Singh vs State of Bihar, [1962] Supp.
2 SCR 769; R.L Arora vs State of Uttar Pradesh & Ors., ; ; Jagdish Pandey vs The Chancellor, University of Bihar & Anr., [1968] I SCR 231; Shri Umed vs Raj Singh & Ors., [1975] I SCR 918; Mohd. Yunus Salim 's case; , ; Sunil Batra etc.
vs Delhi Adminis tration & Ors.; , ; Excel Wear etc.
vs Union of India & Ors.
, ; ; Minerva Mills Ltd. & Ors.
vs Union of India & Ors.
, ; ; Union of India & Anr. etc.
vs Tulsiram Patel etc.
; , and Elliott Ashton Welsh, 11 vs United States; , ; 308, referred to.
155 2.2 Therefore, the doctrine of reading down cannot be availed of for saving the regulation in the instant case.
In the first instance, the regulation is a part of the service regulations of the employees made by the Delhi Road Trans port Authority in exercise of the powers conferred by sub section (1) read with clause (c) of sub section (2) of Section 53 of the Delhi Road Transport Act, 1950, whose object is to provide for the establishment and the regula tion of Road Transport Authority for the promotion of a co ordinated system of road transport in the State of Delhi.
There is nothing either in the object of the service regula tions or in the object of the Act which has a bearing on Regulation 9(b).
If anything the object of the Act would require framing of such service regulations as would ensure dedicated and diligent employees to run the undertaking.
The dedication of the employees would pre suppose security of employment and not a constant hanging of the Democle 's sword over their head, and hence would in any case not bear the existence of such regulation.
Secondly, the language of regulation is so crystal clear that no two interpretations are possible to be placed on it and hence it is not permis sible to read in it any meaning other than what is clearly sought to be conveyed by it.
Thirdly, the context of the regulation makes it abundantly clear that it is meant to be a naked hire and fire rule and the authority has been vested with unguided and arbitrary power to dispense with the services of any category of the employees.
Sub clause (a) of the Regulation mentions elaborately the circumstances in which the services of an employee can be terminated without any notice or pay in lieu of such notice.
Sub clause (b) follows closely on its heel and states in clear language that when the termination is made due to reduction of estab lishment or in circumstances other than those mentioned in sub clause (a), one month 's notice or pay in lieu thereof is all that is necessary to be given for terminating an employ ee 's services.
The intention of the rule making authority, therefore, is more than clear.
It was to give an absolute free hand without any limitations whatsoever to terminate the services of any employee.
Both the language of the regulation as well as the context in which it is cast leave no scope for reading into it any further provision.
[289C H, 290A] 2.3 Moreover, reading in the rule circumstances under which alone the rule can be used, and reading it down to read in it words or expressions or provisions in order to save the legislation would not only distort the intention of the rule making authority but would also require extensive amendment of a very vague nature to it.
The reading in the regulation of a provision that the concerned employees should be given a hearing with regard to his mis conduct will require that be should first be intimated of the mis conduct of which he is guilty.
But 156 that kind of a situation is taken care of by sub clause (a) of the said regulation.
There is.
therefore.
no need of a separate prevision for the same.
on the other hand.
the services of an employee are to be terminated on grounds other than those mentioned in sub clause (a), then those grounds being unknown to the employee, cannot be met by him even if he is given a hearing.
The Court cannot read in the rule all circumstances where it is not possible or necessary to hold an enquiry.
Such situations are capable of being formulated easily and conveniently at least in general terms as is done by the Constitution makers in the second proviso to Article 311( 2).
The reading of such circumstances in the existing regulation would require its extensive recasting which is impermissible for the Court to do.
There is no authority which supports such wide reading down of any provision of the statute or rule/regulation.
Therefore the doctrine of reading down is singularly inapplicable to the present case.
[281B, 290B, 291A F] 3.
Clause (b) of Regulation 9 contains the much hated and abused rule of hire and fire reminiscent of the days of laissez faire and unrestrained freedom of contract.
[274E] Per Ramaswamy.
J 1. 1.1 The question of security of work is of most impor tance.
If a person does not have the feeling that he belongs to an organisation engaged in promotion.
he will not put forward his best effort to produce more.
That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management.
Therefore, as far as possible security of work should be assured the employees so that they may contribute to the maximisation of production.
[300D E] Daily Rated Casual Labour vs Union of India, at 130 131, referred to.
1.2 A permanent employee of a statutory authority, corporation or instrumentality under Article 12 has a lien on the post till he attained superannuation or compulsorily retired or service is duly terminated in accordance with the procedure established by law.
Security of tenure enures the benefit of pension on retirement.
Dismissal, removal or termination of his/her service for inefficiency, corruption or other misconduct is by way of penalty.
He/She has a right to security of tenure which is essential to inculcate a sense of belonging to the service or organisation and in volvement for maximum production or efficient 157 service.
It is also a valuable right which is to be duly put an end to only as per valid law.
[300A G] Roshan Lal Tandon vs Union of India, ; at 195 196; Calcutta Dock Labour Board vs Jarfar Imam, and Sirsi Municipality vs Cecelia Kom Francis Tal lis; , , referred to.
1.3 The right to life, a basic human right, assured by Article 21 of the Constitution comprehends some thing more than mere animal existence; it does not only mean physical existence, but includes basic human dignity.
The right to public employment and its concomitant right to livelihood receive their succour and nourishment under the canopy of the protective umbrella of Articles 14, 16(1), 19(1)(g) and 21.
[296A, 297B] Munn vs Illinois, ; and 154, referred to.
Kharak Singh vs State of U.P., [1964] 1 SCR 332; Olga Tellis vs Bombay Municipal Corporation, [1985] 2 Suppl.
SCR page 51 at 79; Menaka Gandhi vs Union of India, [1978] 2 SCR 621; State of Maharashtra vs Chander Bhan, and Board of Trustees, Port of Bombay vs Dilip Kumar; , , referred to.
1.4 The arbitrary, unbridled and naked power of wide discretion to dismiss a permanent employee without any guidelines or procedure would tend to defeat the constitu tional purpose of equality and allied purposes.
Therefore, when the Constitution assures dignity of the individual and the right to livelihood, the exercise of power by the execu tive should be combined with adequate safeguards for the rights of the employees against any arbitrary and capricious use of those powers.
Workmen of Hindustan Steels Ltd. vs Hindustan Steel Ltd. & Ors.; , and Francis Corallie vs
U.T. of Delhi; , = ; , referred to.
1.5 It is well settled constitutional law that different Articles the Chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions, particularly the Fundamental Rights.
The fundamental rights, protected by Part III of the constitu tion, out of which Articles 14.
19 and 21 are the most frequently 158 invoked to test the validity of executive as well as legis lative actions when these actions are subjected to judicial scrutiny, are necessary means to develop one 's own person ality and to carve out one 's own life in the manner one likes best subject to reasonable restrictions imposed in the paramount interest of the society and to a just.
fair and reasonable procedure.
The effect of restriction or deprivation and not of the form adopted to deprive the right is the conclusive test.
Thus, the right to a public employ ment is a constitutional right under Article 16(1).
All matters relating to employment include the right to continue in service till the employee reaches superannuation or his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution or the Rules made under proviso to Article 309 of the Constitution or the statutory provision or the Rules.
regulations or instructions having statutory flavour made thereunder.
But the relevant provisions must be conformable to the rights guaranteed in Parts III & IV of the Constitu tion.
Article 21 guarantees the right to live which includes right to livelihood.
to many.
assured tenure of service is the source.
[311G; 312G H, 313A B] R.C. Cooper vs Union of India, ; ; Minerva Mills Ltd. vs Union of India, and Union of India & Ant.
vs Tulsiram Patel & 0rs. [1985] Suppl.
2 SCR 131 at 233 referred to.
1.6 Article 14 is the general principle while article 311(2) is a special provision applicable to all civil serv ices under the State.
Article 311(2) embodies the principles of natural justice but proviso to clause (2) of article 311 excludes the operation of principles of natural justice engrafted in article 311(2) as an exception in the given cir cumstances enumerated in these clauses of the proviso to article 311(2) of the Constitution.
Article 14 read with Arti cles 16(1) and 311 are to be harmoniously interpreted that the proviso to article 311(2) excludes the application of the principles of natural justice as an exception; and the applicability of Article 311(2) must, therefore, be circum scribed to the civil services and to be construed according ly.
In respect of all other employees covered by Article 12 of the Constitution the dynamic role of Article 14 and other relevant Articles like 21 must be allowed to have full play without any inhibition.
unless the statutory rules them selves, consistent with the mandate of Articles 14.16.19 and 21 provide, expressly, such an exception.
[317F H, 315A] Union of India & Ant.
vs Tulsiram Patel & Ors., [1985] Suppl.
2 SCR 131 at 233; A.K. Kraipak & Ors. etc.
vs Union of India & Ors., and Union of India vs Col J.N. Sinha & Ors., [1971] 1 SCR 791, referred to.
159 1.7 Article 19(1)(g) empowers every citizen right to avocation or profession etc., which includes right to be continued in employment under the State unless the tenure is validly terminated and consistent with the scheme enshrined in the fundamental rights of the Constitution.
Whenever there is arbitrariness in State action whether it be of the Legislature or of the Executive or of an authority under Article 12.
Articles 14 and 21 spring into action and strike down such an action.
The concept of reasonableness and non arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution.
[315B D] 1.8 Thus, Article 14 read with 16(1) accords right to an equality or an equal treatment consistent with principles of natural justice.
Any law made or action taken by the employ er, corporate statutory or instrumentality under Article 12 must act fairly and reasonably.
Right.
to fair treatment is an essential inbuilt of natural justice.
Exercise of unbri dled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively, judiciously and with out prejudice.
Wider the discretion, the greater the chances of abuse.
Absolute discretion is destructive of freedom than of man 's inventions.
Absolute discretion marks the beginning of the end of the liberty.
The conferment of absolute power to dismiss a permanent employee is antithesis to justness or fair treatment.
The exercise of discretionary power wide of mark would bread arbitrary, unreasonable or unfair actions and would not be consistent with reason and justice.
[320B D] 1.9 The right to public employment which includes right to continued public employment till the employee is superan nuated as per rules or compulsorily retired or duly termi nated in accordance with the procedure established by law is an integral part of right to livelihood which in turn is an integral part of right to life assured by article 21 of the Constitution.
Any procedure prescribed to deprive such a right to livelihood or continued employment must be just, fair and reasonable procedure and conformable to the mandate of Articles 14 and 21.
In other words, an employee in a public employment also must not be arbitrarily, unjustly or unreasonably deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure.
Otherwise any law or rule in violation thereof is void.
[320E F] A.K. Kraipak & Ors. etc.
vs Union of India & Ors.
, ; Union of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791; 160 Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors.
vs Union of India & Ors.
, ; at 60 61; S.S. Muley vs J.R.D. Tata, ; Superin tendent of Post Office vs K. Vasayya, [1984] 3 Andhra Pra desh law Journal 9; West Bengal Electricity Board & Ors. vs D.B. Ghosh & Orb '., [1985] 2 SCR 1014; Workmen of Hindustan Steel Ltd. & Anr.
vs Hindustan Steel Ltd. & Ors.
, ; ; O.P. Bhandari vs Indian Tourism Development Corp. Ltd. & Ors.
, ; ; A.P.S.R.T. Corp. vs Labour Court, AIR 1980 A.P. 132; R.M.D. Chamarbaugwalla vs State of Punjab, ; ; Kanhialal vs District Judge & Ors., ; M.K. Agarwal vs Gurgaon Gramin Bank & Ors., ; All Saints High School vs Government of A.P., ; & 938 e to f; Frank Anthoney Public School vs Union of India, ; & 269 b to e; Christian Medical College Hospital Employees ' Union & Anr.
vs Christian Medical College Veilore Association & Ors., ; & 562; Kameshwar Prasad vs State of Bihar, [1962] Suppl.
3 SCR 369 and O.K. Ghosh vs EZX Joseph, [1963] Supp. 1 SCR 789, referred to.
United States vs Samuel D. singleton; , , referred 1.10 Undoubtedly, efficiency of the administration and the discipline among the employees is very vital to the successful functioning of an institution or maximum produc tion of goods or proper maintenance of the services.
Disci pline in that regard amongst the employees is its essential facet and bas to be maintained.
The society is vitally interested in the due discharge of the duties by the govern ment employees or employees of corporate bodies or statutory authorities or instrumentalities under article 12 of the Con stitution.
The government or corporate employees are, after all, paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes.
The employees are charged with public duty and they should perform their public duties with deep sense of responsibili ty.
The collective responsibility of all the officers from top most to the lowest maximises the efficient public admin istration.
They must, therefore, be held to have individual as well as collective responsibility in discharge of their duties faithfully honestly with full dedication and utmost devotion to duty.
Equally the employees must also have a feeling that they have security of tenure.
They should also have an involvement on their part in the organisation or institution, corporation, etc.
They need assurance of serv ice and protection.
The public interest and the public good demands that those who discharge their duties honestly, efficiently and 161 with a sense of devotion and dedication to duty should receive adequate protection and security of tenure.
There fore, before depriving an employee of the means of liveli hood to himself and his dependents, i.e. job, the procedure prescribed for such deprivation must be just, fair and reasonable under articles 21 and 14 and when infringes article 19(1)(g) must be subject to imposing reasonable restrictions under article 19(5).
[320G H, 321A D, 322D] 1.11 Conferment of power on a high rank officer is not always an assurance, in particular, when the moral standards are generally degenerated, that the power would be exercised objectively, reasonably, conscientiously, fairly and justly without inbuilt protection to an employee.
Even officers who do their duty honestly and conscientiously are subject to great pressures and pulls.
Therefore, the competing claims of the "public interest" as against "individual interest" of the employees are to be harmoniously blended so as to serve the societal need consistent with the constitutional scheme.
[322D E] 1.12 Regulation 9(b) of the Delhi Road Transport (Condi tions of Appointment and Service) Regulations, 1952, is arbitrary, unjust, unfair and unreasonable offending Arti cles 14, 16(1), 19(1)(g) and 21 of the Constitution.
It is also opposite to the public policy and thereby is void under Section 23 of the .
[330G] 1.13 Under ordinary law of master and servant, whether the contract of service is for a fixed period or not, if it contains a provision for termination of service by notice, in terms thereof, it can be so determined and if the con tract finds no provision to give notice and the contract of service is not for a fixed period, law implies giving of a reasonable notice.
Where no notice or a reasonable notice was issued.
before terminating the contract.
the termination of the contract of service is wrongful and the aggrieved employee is entitled at law to sue for damages.
It is not disputed that the Delhi Road Transport Corporation is a statutory Corporation under the Delhi Road Transport Act and the Regulations are statutory and its employees are entitled to the fundamental rights enshrined in Part 111 of the Constitution.
The Corporation or an instrumentality or other authority under Article 12 is not free, like an ordinary master (a private employer) to terminate the services of its employees at its whim or caprices or vagary.
It is bound by the Act and the Regulation and paramount law of the land, the Constitution.
[292G H; 293A B] 1.14 Any law, much less the provisions of Contract Act, which are inconsistent with the fundamental rights guaran teed in Part III of 162 the Constitution, are void by operation of Article 13 of the Constitution.
The law of contract, like the legal system itself, involves a balance between competing sets of values.
Freedom of contract emphasises the need for stability.
certainty and predictability.
But, important as values are.
they are not absolute, and there comes a point when they face a serious challenge. 'This Court, as a court of consti tutional conscience enjoined and is jealously to project and uphold new values in establishing the egalitarian social order.
As a court of constitutional functionary exercising equity jurisdiction, this Court would relieve the weaker parties from unconstitutional contractual obligations, unjust, unfair, oppressive and unconscionable rules or conditions when the citizen is really unable to meet on equal terms with the State.
It is to find whether the citi zen, when entered into contracts of service, was in distress need or compelling circumstances to enter into contract on dotted lines or whether the citizen was in a position of either to "take it or leave it" and if it finds to be so, this Court would not shirk to avoid the contract by appro priate declaration.
[302G, 303B, 304H, 305A B] Central Inland Water Transport Company Limited vs Brojo nath Ganguly, 1986 SC 1571, affirmed.
Ramdas Vithaldas Durbar vs section Amarchand & 60., 43 Indian Appeals.
164 and V. Raghunadha Rao vs State of Andhra Pra desh, , referred to.
Anson 's Law of Contract, p. 6 and 7 and Professor Guido Calabresi of Yale University Law School "Refractivity, Paramount power and Contractual Changes", 1961 62 71 Yale Law Journal, P 1191, referred to.
2.1 The golden rule of statutory construction is that the words and phrases or sentences should be interpreted according to the intent of the legislature that passed the Act.
All the provisions should be read together.
If the words of the statutes are in themselves precise and unambig uous, the words, or phrases or sentences themselves alone do, then no more can be necessary than to expound those words or phrases or sentences in their natural and ordinary sense.
But if any doubt arises from the terms employed by the legislature, it is always safe means of collecting the intention, to call in aid the ground and cause of making the statute, and have recourse to the preamble, which is a key to open the minds of the makers of the statute and the mischiefs which the Act intends to redress.
In determining the meaning of statute the first question to ask always is what is the natural or ordinary meaning of that 163 word or phrase in its context.
It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intent of the legislature, then it is proper to look for some other possible meaning and the court cannot go further.
[323D G] 2.2 The Doctrine of Reading Down is, therefore, an internal aid to construe the word or phrase in a statute to give reasonable meaning, but not to detract, disort or emasculate the language so as to give the supposed purpose to avoid unconstitutionality.
Thus, the object of reading down is to keep the operation of the statute within the purpose of the Act and constitutionally valid.
[324E, 325B] 2.3 It cannot be accepted that the Courts, in the proc ess of interpretation of the Statute, would not make law but leave it to the legislature for necessary amendments.
In an appropriate case, Judges would articulate the inarticulate major premise and would give life and force to a Statute by reading harmoniously all the provisions ironing out the creezes.
The object is to elongate the purpose of the Act.
[323B] 2.4 The Courts, though, have no power to amend the law by process of interpretation, but do have power to mend it so as to be in conformity with the intendment of the legis lature.
Doctrine of reading down is one of the principles of interpretation of statute in that process.
But when the offending language used by the legislature is clear, precise and unambiguous, violating the relevant provisions in the constitution, resort cannot be had to the doctrine of read ing down to blow life into the void law to save it from unconstitutionality or to confer jurisdiction on the legis lature.
Similarly it cannot be taken aid of to emasculate the precise, explicit, clear and unambiguous language to confer arbitrary, unbridled and uncanalised power on an employer which is a negation to just, fair and reasonable procedure envisaged under Articles 14 and 21 of the Consti tution and to direct the authorities to record reasons, unknown or unintended procedure.
[326H, 327A B] Elliott Ashton Walsh, H vs United States, ; ; Nalinakhya Bysack vs Shyam Sunder Haldar & Ors., ; at 544 45; United States vs Wunderlick, ; S.C. Jaisinghani vs Union of India, ; ; In re Hindu Women 's Right to Property Act, ; K.N. Singh vs State of Bihar, [1962] Suppl. 2 SCR 769; R.L. Arora vs State of U.P., ; ; Jagdish Pandev vs Chan cellor of the Bihar, ; Amritsar Municipality vs State of Punjab, ; ;Sunil Batra vs Delhi Admn., ; ; N.C. Dalwadi vs State of Gujarat, [1987] 3 164 SCC 611; Charanlal Sahu vs Union of India, [1989] Suppl.
Scale 1 at p. 61; Delhi Transport Undertaking vs Balbir Saran Goel, ; Air India Corporation vs Rebellow; , and Municipal Corporation of Greater Bombay vs P.S. Malvankar, ; , re ferred to.
Federal Steam Navigation Co. vs Department of Trade and Industry, at p. 100 and Saints High School, Hyderabad vs Govt.
of A. P., ; , re ferred to.
Craies Statute Law, 7th Ed.
V, P. 64.
2.5 The language of Regulation 9(b) is not capable of two interpretations.
This power is in addition to the normal power in Regulation 15 to conduct an enquiry into misconduct after giving reasonable opportunity.
Thereby the legislative intention is manifest that it intended to confer such draco nian power couched in language of width which hangs like Damocles sword on the neck of the employee, keeping every employee on tenter hook under constant pressure of uncer tainty, precarious tenure at all times right from the date of appointment till date of superannuation.
It equally enables the employer to pick and choose an employee at whim or vagary to terminate the service arbitrarily and capri ciously.
Regulation 9(b), thereby deliberately conferred wide power of termination of services of the employee with out following the principles of audi alteram partem or even modicum of procedure of representation before terminating the services of permanent employee.
[327E G] 2.6 No doubt, the power to take appropriate and expedi tious action to meet the exigencies of weeding out ineffi cient, corrupt, indolent officers or employees from service should be provided and preserved to the competent authority but any action taken without any modicum of reasonable procedure and prior opportunity always generates an un quenchable feeling that unfair treatment was meted out to the aggrieved employee.
To prevent miscarriage of justice or to arrest a nursing grievance that arbitrary whimsical or capricious action was taken behind the back of an employee without opportunity, the law must provide a fair, just and reasonable procedure as is exigible in a given circumstance as adumbrated in proviso to article 311(2) of the Constitution.
If an individual action is taken as per the procedure on its own facts its legality may be tested.
But it would be no justification to confer power with wide discretion on any authority without any procedure which would not meet the test of justness, fairness and reasonable 165 ness envisaged under articles 14 and 21 of the Constitution.
Therefore, conferment of power with wide discretion without any guidelines, without any just, fair or reasonable proce dure is constitutionally anathema to articles 14, 16(1), 19(1)(g) and 21 of the Constitution.
Doctrine of reading down cannot be extended to such a situation.
[328A C, 329B C] 2.7 In view of the march of law, made by Article 14 it is too late in the day to contend that the competent author ity would be vested with wide discretionary power without any proper guidelines or the procedure.
When it is found that the legislative intention is unmistakably clear, unam biguous and specific, the preamble, the other rules and the circumstances could not be taken aid of in reading down the provisions of the rules or the regulations of the constitu tional scheme.
[330F G] 3.1 The phrases "public policy", opposed to public policy, or "contrary to public policy" are incapable of precise definition.
It is valued to meet the public good or the public interest.
What is public good or in the public interest or what would be injurious or harmful to the public good or the public interest vary from time to time with the change of the circumstances.
Therefore, in the absence of specific head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest invent new public policy and declare such practice or rules that are derogatory to the constitution to be opposed to public policy.
The rules which stem from the public policy must of necessity be laid to further the progress of the society, in particular when social change is to bring about an egalitar ian social order through rule of law.
In deciding a case which may not be covered by authority, courts have before them the beacon light of the trinity of the Constitution viz., the preamble, Part III and Part IV and the play of legal light and shade must lead on the path of justice social, economic and political.
Lacking precedent, the court can always be guided by that light and the guidance thus shed by the trinity of our Constitution.
[308C D, 309G H, 310A] 3.2 Since Constitutions are the superior law of the land, and because one of their outstanding features is flexibility and capacity to meet changing conditions, con stitutional policy provides a valuable aid in determining the legitimate boundaries of statutory meaning.
Thus public policy having its inception in Constitutions may accomplish either a restricted or extended interpretation of the liter al expression of a statute.
A statute is always presumed to be constitutional and where necessary, a constitutional meaning will be inferred to preserve validity.
Likewise, where a statute tends to extend or preserve a constitutional 166 principle, reference to analogous constitutional provisions may be of great value in shaping the statute to accord with the statutory aim or objective.
Therefore, when the provi sions of an Act or Regulations or Rules are assailed as arbitrary, unjust, unreasonable, unconstitutional, public law element makes it incumbent to consider the validity thereof on the anvil of inter play of articles 14, 16(1), 19(1)(g) and 21 and of the inevitable effect of the provi sion challenged on the rights of a citizen and to find whether they are constitutionally valid.
[310C D, 311E] 4.
The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based.
In a system governed by rule of law, dis cretion, when conferred upon executive authorities, must be confined within defined limits.
The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is.
If a decision is taken without any princi ple or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.
[328D E] 5.
No doubt, it is open to the authorities to terminate the services of a temporary employee without holding an enquiry.
But in view of the march of law made, viz., that it is not the form of the action but the substance of the order which is to be looked into, it is open to the Court to lift the veil and pierce the action challenged to find whether the said action is the foundation to impose punishment or is only a motive.
The play of fair play is to secure justice procedural as well as substantive.
The substance of the order, the effect thereof is to be looked into.
[330C D] Shamsher Singh vs State of Punjab, , re ferred to.
It is for concerned authorities to make appropriate rules or regulations and to take appropriate action even without resorting to elaborate enquiry needed consistent with the constitutional scheme.
[331A] Workmen of Hindustan Steel Ltd. vs Hindustan Steel Ltd. & Ors.
; , , referred to.
Ram Chander vs Union of India, , referred to.
The ratio in Brojonath 's case was correctly laid down and requires no reconsideration.
[331D] 167 Central Inland Water Transport Company Limited vs Brojo nath Ganguly, , affirmed.
Per Mukharji, CJ., (Contra) 1.
The constitutionality of the conferment of power to terminate services of a permanent employee without holding an enquiry is sustained by reading that the power must be exercised on reasons relevant for the efficient running of the services or performing of the job by the societies or the bodies.
It should be done objectively, the reasons should be recorded, and the basis that it is not feasible or possible reasonably to hold any enquiry without disclosing the evidence which in the circumstances of the case would be hampering the running of the institution.
The reasons though recorded, need not be communicated, it is only for the purpose of running of the institution.
There should be factors which hamper running of the institution without the termination of the employment of the employee concerned at the particular time, either because he is a surplus or inefficient, disobedient and dangerous.
[235C E] 2.1 The philosophy of the Indian Constitution, as it has evolved, from precedent to precedent, has broadened the horizons of the right of the employees and they have been assured security of tenures and ensured protection against arbitrariness and discrimination in discharge or termination of his employment.
This is the basic concept of the evolu tion from the different angles of law of master and servant or in the evolution of employer and employee relationship.
It is true that the law has traveled in different channels, government servants or servants or employees having status have to be differentiated from those whose relationships are guided by contractual obligations.
However, the basic and fundamental question to be judged is, in what manner and to what extent, the employees of either of semi Government or statutory corporations or public undertakings who enjoy the rights, privileges, limitations and inhibitions of institu tions who come within the ambit of Article 12 of the Consti tution could be affected in their security of tenure by the employers consistent with the rights evolved over the years and rights emanating from the philosophy of the Constitution as at present understood and accepted.
[229D G] 2.2 Efficiency of the administration of these undertak ings is very vital and relevant consideration.
Production must continue, services must be maintained and run.
Efficacy of the services can be manned only by the disciplined em ployees or workers.
Discipline. decency and 168 order will have to be maintained.
Employees should have sense of participation and involvement and necessarily sense of security in semipermanent or quasi permanent or permanent employment.
There must be scope for encouragement for good work.
In what manner and in what measure, this should be planned and ensured within the framework of the Constitution and, power mingled with obligations, and duties enjoined with rights, are matters of constitutional adjustment at any particular evolved stage of the philosophy of our Constitu tion.
[230A C] 2.3 Arbitrary, whimsical or discriminatory action can flow or follow in some cases by the preponderance of these powers to terminate.
The tact that the power is entrusted with a high ranking authority or body is not always a safe or sound insurance against misuse.
At least, it does not always ensure against erosion of credibility in the exercise of the power in particular contingency.
Yet discipline has to be maintained, efficiency of the institution has to be ensured.
It has to be recognised that quick actions are very often necessary in running of an institution or public service or public utility and public concern.
It is not always possible to have enquiry because disclosure is diffi cult; evidence is hesitant and difficult, often impossible.
In those circumstances, the approach to the location of power, possession and exercise of which is essential for efficient running of the industries or services, has to be a matter both of balancing and adjustment, on which one can wager the salivation of rights and liberties of the employ ees concerned and the future of the industries or the serv ices involved.
[330D F] 2.4 The power to terminate the employment of permanent employment must be there.
Efficiency and expediency and the necessity of running an industry or service make it impera tive to have these powers.
Power must, therefore, be with authorities to take decision quickly, objectively and inde pendently.
Power must be assumed with certain conditions of duty.
The preamble, the policy, purpose of the enacting provision delimit the occasions or the contingencies for the need for the exercise of the power and these should limit the occasions of exercise of such powers.
The manner in which such exercise of power should be made should ensure fairness, avoid arbitrariness and mala fide and create credibility in the decisions arrived at or by exercise of the power.
All these are essential to ensure that power is fairly exercised and there is fair play in action.
Reasons good and sound, must control the exercise of power.
[230G H, 231A] Thus, for the running of the industry or the service, effi ciently, 169 quickly and in a better manner or to avoid dead locks or inefficiency or friction, the vesting of the power in cir cumstances must be such that it will evoke credibility and confidence.
Notice of hearing and opportunity in the form of an enquiry may or may not be given, yet arbitrariness and discrimination and acting whimsically must be avoided.
These powers must, therefore, be so read that the powers can be exercised on reasons, which should be recorded, though need not always be communicated, and must be by authorities who are high ranking or senior enough and competent and are expected to act fairly, objectively and independently.
The occasion for the use of power must be clearly circumscribed in the above limits.
These must also circumscribe that the need for exercise of those powers without holding a detailed or prolonged enquiry is there.
[231E, F G] Workmen of Hindustan Steel Ltd. & Anr.
vs Hindustan Steel Ltd. & Ors.
, ; ; West Bengal State Electricity Board and Others vs Desh Bandhu Ghosh and Oth ers, [1985] 3 SCC 116; Moti Ram Deka vs North East Frontier Railway, ; S.S. Muley vs J.R.D. Tata, ; Manohar P. Kharkhar vs Raghuraj, ; Central Inland Water Transport Corporation Limited and Anr.
vs Brojo Nath Ganguly and Anr., ; Sukhdev Singh vs Bhagatram Sardar Singh Raghuvanshi, ; ; Union of India & Anr.
vs Tulsi Ram PateI, [1985] Suppl.
2 SCR 131 at p. 166; Tata Oil Mills Co. Ltd. vs Workmen & Anr., ; at 130; L. Michael & Anr.
vs M/s Johnston Pumps India Ltd.; , at 498; Delhi Transport Corporation Undertaking vs Balbir Saran Goel, ; at 764; Air India Corporation, Bombay vs V.A. Rebellow & Anr., ; ; Municipal Corpo ration of Greater Bombay vs P.S. Malvenkar & Ors., ; at page 1006; Roshan Lal Tandon vs Union of India, ; at 195 D E; Champak Lal Chiman Lal Shah vs The Union of India, at 204; Ram Gopal Chaturvedi vs State of M.P., ; at 475; Gheru Lal Parekh vs Mahadeodas Maiva & Others, [1959] Supp. 2 SCR 406 at 440; O.P. Bhandari vs I.T.D.C. & Ors., ; ; The Hindu Women 's Rights to Property Act, ; Fertilizer Corporation Kamgar Union (Regd.) Sindri and Others vs Union of India and Others, [1981] 2 SCR at 60 61; Ajay Hasia etc.
vs Khalid Mujib Sehravardi & Ors. etc.; , at 100 102; A.V. Nachane & Anr.
vs Union of India & Anr.
, ; ; India Tobacco Co. Ltd. vs The Commercial Tax Officer, Bhavanipore & Ors., at 657; A.L. Kalra vs The Project and Equipment Corpora tion of India Ltd.; , at 664; Bandhua Mukti Morcha vs Union of India & Ors., [1984] 2 170 SCR 79 at 101; Hindustan Antibiotics Ltd. vs The Workmen & Ors.
, ; at 669; The Collector of Customs, Madras vs Nathella Sampathu Chetty, ; at 825; Commissioner of Sales Tax, Madhya Pradesh vs Radhakrishan & Ors., (supra); Gurdev Singh Sidhu vs State of Punjab & Anr., ; at 592 593; U.P. State Electricity Board vs Hari Shankar Jain, ; A.R. Antulay vs R.S. Nayak and Anr., ; ; S.G. Jaisinghani vs Union of India and Ors., ; at p. 718 19 and Kesavananda Bharati vs State of Kerala, [1973] Supp. 1 SCR 1, referred to.
A. Schroeder Music Publishing Co. Ltd. vs Macaulay, (formerly Instone), , referred to.
Chitty on Contract, 46th Edition Vol.
II, p. 808 or 25th Edition Vol.
II p. 712 paragraph and Halsbury 's Law of England, 4th Edition Vol.
No. 16 paras 607 and 608, referred to.
3.1 Courts have been tempted to read down in the path of judicial law making on the plea that legislature could not have intended to give powers to the authorities or employers which would be violative of fundamental rights of the per sons involved in the exercise of those powers and, there fore, should be attributed those powers on conditions which will only make these legal or valid.
Our law making bodies are not law unto themselves and cannot create or make all laws.
They can only confer powers or make laws for the conferment of powers on authorities which are legal and valid.
Such powers conferred must conform to the constitu tional inhibitions.
[232C D] 3.2 Legislation, both statutory and constitutional, is enacted from experience of evils.
But its general language should not necessarily be confined to the form that the evil had taken place.
Time works changes, brings into existence new conditions and purposes and new awareness of limita tions.
Therefore, a principle to be valid must be capable of wider application than the mischief which gave it birth.
This is particularly true of the constitutional construc tions.
Constitutions are not ephemeral enactments designed to meet passing occasions, but designed to approach immor tality as nearly as human institutions can approach it.
In the application of a Constitutional limitation or inhibi tion, the interpretation cannot be only of 'what has been ' but of 'what may be '.
Therefore.
in the interpretation of the provisions of an Act, where two constructions are possi ble, the one which leads towards constitutionality of the legislation would be preferred to that which has the effect of 171 destroying it.
If the Courts do not read the conferment of power in the aforesaid manner, the power is liable to be struck down as bad.
[233B D] 3.3 The Court must proceed on the premise that the law making authority intended to make a valid law to confer power validly or which will be valid.
The freedom therefore, to search the spirit of the enactment or what is intended to obtain or to find the intention of parliament gives the Court the power to supplant and supplement the expressions used to say what was left unsaid.
This is an important branch of judicial power, the concession of which if taken to the extreme is dangerous, but denial of that power would be ruinous and this is not contrary to the expressed inten tion of the legislature or the implied purpose of the legis lation.
[234G H; 235A] 3.4 It has been said that if the legislature has mani fested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited.
This cannot be agreed to.
Our legis latures are limited by the constitutional inhibitions and it is made, that the Court should read their Acts and enact ments with the attribute that they know their limits and could not have intended to violate the Constitution.
It is true that the Court should be loath to read down where there are clear, unambiguous and positive terms in a legislation and should proceed with a straight forward method of strik ing down such legislations.
But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the inarticulation of its provisions, the Constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly.
[236H, 237A B] 3.5 The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation.
In doing so, to say what the legislature did not specifically say is not distortion to avert any constitutional collision.
[237E] In the language of the relevant provisions of the instant cases, there is no intention of the legislature to flout the constitutional limitations.
[237E] Elliot Ashto Welsh 11 vs United States; , , 26 Ed.
308, referred to.
3.6 It is not that the reading down is used for a purpose which is just the opposite which the legislature had intended.
Legislature had not 172 intended arbitrary or uncontrolled or whimsical power.
Indeed it considered.
This is not the proper way to read that power in the Regulation 9(b).
Para 522 of the Shastri Award, read properly, must be circumscribed with the condi tions indicated above as a necessary corollary or conse quence of that power.
It is also not reading to the legisla ture conditions which were not there in the second proviso to Article 311(2) of the Constitution.
[237H, 238A B] Union of India & Anr.
vs Tulsiram Patel, [1985] Supp.
2 SCR 131, relied on.
No doubt, absolute powers cannot be regulated without essential legislative policy, but in the instant cases properly read, absolute power was not there.
Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach.
But these conditions are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry.
[238C, E] 3.7 In the circumstances power must be there, the power must be read down in the manner and to the extent indicated above, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be either by virtue of the silence of the provi sion indicating the contingencies of termination or by virtue of constitutional inhibitions.
That reading would not violate the theory that judges should not make laws.
[238F G] Shri Ram Krishna Dalmia vs Justice Tandolkar, ; at 299; Jyoti Prasad vs The Administrator for the Union Territory of Delhi, ; at 139; Union of India vs Col. J.N. Sinha & Anr., ; at 461; N.C. Dalwadi vs State of Gujarat, paragraphs 9 and 10 at page 619; Commissioner of Sales Tax, M.P., Indore & Ors.
vs Radhakrishan & Ors.
, ; at 257; Olga Tellis & Ors. etc.
vs Bombay Municipal Corporation & Ors., [1985] Suppl.
2 SCR 51 at 89; R.M.D. Chamarbaugwalla vs Union of India; , at p. 935 and 938; Kedar Nath Singh vs State of Bihar, [1962] Supp. 2 SCR 769; R.L. Arora vs State of Uttar Pradesh, ; ; Jagdish Pandev vs The Chancellor, University of Bihar & Anr., ; , at pages 236 237; Sunil Batra vs Delhi Administration & Ors., ; ; Tinsukhia Electric Supply Co. Ltd. vs State of Assam & Ors., ; ; Charan Lal Sahu & Ors.
vs Union of India, , at 173 pages 53 and 54, paras 101 as well as p. 61 para 114; Shah & Co. vs State of Maharashtra, ; at 477 78; M. Pentiah and Ors.
vs Veera Mallappa and Ors., ; ; Bangalore Water Supply and Sewerage Board etc.
vs A. Rajappa & Ors., ; ; Minerva Mills Ltd.& Ors., vs Union of India & Ors.
, ; , at p. 239 and 259; Elliott Ashton Welsh, 11 vs United States, 26 Lawyers ' Edition 2nd, 308 at 327; Malinakhva Bysack vs Shyam Sunder Haldar & Ors., ; , at p. 544 545 and Municipal Committee, Amritsar & Anr.
vs State of Punjab & ors.
; , , referred to.
United States of America vs Edward A.
Rumely, 97 Law yers Edition 770 at 775; Reg.
vs Sadiers Co., ; , 460 and 463; Framamus vs Film Artists Association, at 542 and Seaford Court Estates, , referred to.
H.M. Seervaid 'Constitutional Law of India ', 3rd Edn.
1 pages 119 120 and Lord Denning: "The discipline of Law", at p. 12, referred to.
3.8 Termination simpliciter under Regulation 9(b) of the Regulation 1952, Delhi Road Transport Authority (Conditions of Appointment and Services) or similar powers can be exer cised only in circumstances other than those in Regulation 9(a).
The exercise of such powers can only be for purposes germane and relevant to the statute, viz., the employee is incompetent or unsuitable so as to make his continuance in the employment detrimental to the interest of the institu tion, or where the continuance of the employee is a grave security risk making his continuance detrimental to the interest of the Corporation and where because of the conduct of the employee, or there is lack of confidence in the employee which makes it necessary in the interest of the Corporation to immediately terminate the services of the employee etc., etc.
Therefore, each case of conferment of power involved should be judged on the aforesaid basis.
[236E G] 3.9 Having regard to the finality of the position of law and having regard to the theory that parties have ad justed their rights on the understanding of the law as it was, justice of the situation would be met if pending liti gations are examined and disposed of in the light of afore said principles.
Where issues of damages or consequences of termination by virtue of exercise of the power are still pending adjudication in any forum and have been finally adjudicated, these should be re examined by the appropriate authorities before whom these issues 174 are pending, but previous terminations, where no lis is pending, will not be reopened.
To that extent, the law will be prospective.
[239D F] 4.
This Court.
under Article 141 of the Constitution, is enjoined to declare law.
The expression 'declared ' is wider than the words 'found or made '.
To declare is to announce opinion.
Indeed, the latter involves the process.
while the former expresses result.
Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as a law.
The law de clared by this Court is the law of the land.
To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country.
Therefore.
there should be a more active and creative role for the courts in declaring what the law is.
[240E G] 1.
C. Golaknath & Ors.
vs State of Punjab & Anr.
, ; @ 811,813/84, referred to.
|
ivil Appeal No. 2111 of 1969.
(Appeal by Special Leave from the Judgment and Order dated 26 9 1968 of the Madhya Pradesh High COurt in Civil Revision No. 711/66).
V.S. Desai, P. C. Bhartari and D. N. Misra for the Appel lants.
B.N. Lokur and Rameshwar Nath for the Respondents.
1018 The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court dated September 26, 1968 setting aside the appellate order or the Second Additional District Judge, Indore, dated Octo ber 29, 1966 and remitting the matter to the Municipal Commissioner for a fresh determination of the annual value of the building.
The building in question is known as "Viram Lodge", on Ravindra Nath Tagore Marg, Indore.
It belongs to the respondent and has been used by them as a hotel.
The annual gross rental value of the building was determined at Rs. 6600/in 1956.
It was revised by the Assessment Officer on June 3, 1965 and was raised to Rs. 43,405.20.
The respondents filed objections to the valuation, but the Municipal Commissioner fixed the annual value at Rs. 43,405.20.
He held that, in view of the "non obstante" clause in section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, hereinafter referred to as the Act, there was no justification for the .argument that the rental value of the premises could not be fixed at a rate higher than the standard rent under section 7 of the Madhya Pradesh Accommodation Control Act, 1961.
An appeal was taken to the Second Additional District Judge, but without suc cess.
The respondents then filed an application for revi sion, which was allowed by the impugned judgment of the High Court dated September 26, 1968.
This is how the present appeal has arisen at the instance of the Municipal Corporation and its officers.
Section 138 of the Act prescribes the mode for determin ing the annual value of any land or building for purposes of assessing it to property tax.
Clause (a) of the section deals with the annual value of land, and it is not the case of the parties that it has any bearing on the controversy.
Clause (b) prescribes the mode of determining the annual value of a building and reads as follows, "(b) the annual value of any building shall notwithstanding anything contained in any other law for the time being in force be deemed to be the gross annual rent at which such building, together with its appurtenances and any furniture that may be let for use or enjoyment therewith might reasonably at the time of assessment be expected to be let from year to year, less an allowance of ten per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross annual rent.
" There are two explanations to the clause.
It is nobody 's case that they have any bearing on the short point in con troversy before us.
Clause (c) of the section prescribes that if the gross annual rent of a building cannot be deter mined under clause (b), the annual value of the building shall be determined according to that clause.
If is 1019 not in controversy before us that the Viram Lodge was never let on rent, and is being run as a hotel by its owners, the present respondents, so that the .question of fixing its standard rent under section 7 of the Madhya Pradesh Accommodation Control Act, 1961, has not arisen.
It has argued that, even so, the reasonable rent contemplated by section 138(b) of the Act cannot exceed the standard rent to be fixed under the aforesaid section 7.
It has thus been 'urged that it was incumbent for the Municipal Commissioner to determine the annual value of the building on the same basis on which its standard rent was required to be fixed under section 7.
Reliance in this connection has been placed on the deci sions of this Court in The Car oration of Calcutta vs Smt.
Padma Debi and others,(1) Corporation of Calcutta vs Life Insurance Corporation of India(2) Guntur Municipal Council vs Guntur Town Rate Payers 'Assiciation(3) New Delhi Munici pal Committee vs M.N. Soi and another.(4) As has been stated, clause (b) of section 138 of the Act provides that the annual value of any.
building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year.
" While therefore the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force".
It appears to us that it .would be a proper interpretation of the provisions of clause (b) of section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, hit, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permis sible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961.
This view will, in our opinion, give proper effect to the non obstante clause in clause (b with due regard to its Other provision that the letting value should be "rea sonable".
We have gone through the decision in Padma Debi 's case (supra).
There the premises were on rent and section 127(a) of Calcutta Municipal Corporation Act, 1923, did not con tain a non obstante clause.
That the section provided, inter alia, was that the annual value shall be deemed to be the gross annual rent at which the land or building might at the time of assessment "reasonably be expected to let from year to year." This Court examined the significance of the word "reasonable" and held that it would be incongruous to . (1) ; (2) [1971] 1 .C.R. 248.
(3) ; (4) ; 15 1338SC1/76 1020 consider fixation of rent beyond the limits fixed by penal legislation as reasonable.
That view was taken with refer ence to the provisions of the Rent Control Act which pena lised the taking of a higher rent, and also ' made it irrecoverable.
While, therefore, we are in agreement with the view taken in Padma Debi 's case (supra) that it would not be reasonable to consider fixation of rent beyond the limits fixed by the Rent Control Act as reasonable, it would not be a proper interpretation of section 138(b) of 'the Act to ignore the significance of its non obstante clause altogether.
That is why we have taken the view that it would be a fair and reasonable interpretation of section 138(b) to hold that as no standard rent has been fixed so far in respect of the Viram Lodge, the Municipal Commis sioner was justified in adopting another suitable criterion for determining the annual value of the building.
There is in fact nothing in the Act to.
make it obligatory for the Commissioner to follow the provisions of the Madhya Pradesh Accommodation Control Act in spite of the non obstante clause and to limit the annual value to any standard rent that the building might fetch under that Act.
We have also gone through Corporation of Calcutta vs Life Insurance,Corporation of India (supra).
That was also a case where the premises had been let out on rent.
The standard rent had also been fixed, and that was why Padma Debi 's case (supra) was held to be applicable.
So also, Guntur Municipal Council vs Guntur Town Rate Payers ' Association (supra) was a case where the premises.were on rent and there also Padma Debi 's case was held to be applicable even though the standard rent had not been fixed, because it was held that there was nothing to prevent the authorities concerned from ascertaining the fair rent by keeping in view the principles which had been laid down for its determination under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
Section 82(2) of the Madras District Municipalities Act, which governed that case, did not contain a non obstante clause.
Much the same was the position in M.N. Soi 's case which related to a house in New Delhi, of which rate had to be assessed under the provisions of the Punjab Municipal Act, 1911.
The High Court did not properly appreciate the differ ence between the wordings of section 127 of the Calcutta Municipal Corporation Act, 1923, and section 138(c) of the Act, and committed an error in thinking that this was virtu ally similar to Padma Debi 's case.
We find that the High Court has taken the view that a full hearing was not given to the respondents at the time of fixing the annual value of the Viram Lodge and that the valuation was based on "no principle".
Here again, the High Court was clearly in error because we find from the judgment of the Second Additional District Judge, dated October 29, 1966, that the counsel for the respondents 1021 was given "ample opportunity" by the Municipal Commissioner to represent his case before him.
He has also stated that the Assessment Officer paid due regard to all the relevant circumstances which had a bearing on the determination of the reasonable letting value of the building.
Counsel for the respondents has in fact not found it worth his while to argue either that such a hearing was not given, or that all the relevant factors were not taken into consideration in determining the annual letting value of the premises.
In the result, the appeal is allowed and the impugned judgment of the High Court dated September 26, 1968, is Set aside.
The appellants will however pay the costs of the respondents as stipulated in the order of this Court grant ing the special leave.
P.H.P. Appeal al lowed.
| Section 15(a) of the as it existed at the rele ant time enacted that tax in respect of any sale or purchase of declared goods inside the State shall not be levied at more than one stage.
According to cl.
(b) if these goods were subsequently sold, in the course of inter state trade, the tax to levied shall be refunded to such person as prescribed in the State law.
The proviso to section 4 of the Tamil Nadu General Sales Tax Act and r. 23 of the Rules provide for the refund of the sales tax in the type of cases mentioned in section 15(b).
The appellant bought cotton yarn from local dealers and sold it by way of inter_state sale.
It paid the State sales tax and claimed refund under section 15 (b)of the Central Act.
It succeeded in part at each of the different stages; but on second appeal for the balance, the Appellate Tribunal re jected the appellant 's claim and held that it was not enti tled to any refund including the relief granted by the Appellate Assistant Commissioner.
The High Court rejected its revision petition.
Allowing the appeal, HELD: (1) The appellant firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter State trade provided the appellant has paid the sales tax tinder the central Act in respect of those sales.
[956 E] (2) The proviso to section 4 of the State Act read with the rules leaves no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter State trade and who has paid the tax under the Central Act in respect of such sale.
[955 B] (3)(a) There is no anomaly in paying the amount of the sales tax under the State Act to a dealer who sells declared goods in the course of inter State trade even though he did not himself pay the tax under the State Act in respect of those goods.
The reason for that is the price charged from such dealer by the person from whom he purchased the goods would normally take into account the sales tax paid by the seller.
[955 C] (b) The case of M. A. Khader & Co. vs Deputy Commer cial Taxation officer 25 S.T.C. 104 followed by the High Court is distinguishable on facts.
The question of asking for refund of the sales tax paid under the State Act did not arise directly in that case.
The emphasis in the word 'refunded ' as used in section 15(b) of the Central Act and the proviso to section 4 of the State Act.
on repayment of the amount.
[954 G] (4) (a) A word can have many meanings.
To find out the exact connotaon of a word in a statute, one should look to the context in which it is used.
The context would quite often provide the key to meaning of the word and the sense it should carry.
Its setting would give.
colour to it and provide due to the intention of the legislature in using it.
In the instant case the context in which the word "refund ed" is used shows that such repayment need not be to the person who initially paid the tax.
[954 H] 951 (b) The amended provision makes it plain beyond doubt that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter State trade or commerce in such manner and subject to such conditions as may be provided in the law in force in that State.
Accord ing to the notes on clauses appended to the statement of objects and reasons of the Bill the amendment made in cl.
(b) makes it clear that local sales tax would be reimbursed to the person making the sale in the course of inter State trade and commerce.
The amendment made in cl.
(b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision.
[955 G] (c) The fact that the amendment of cl.
(b) of section 15 was not like some other provisions given retrospective effect, would not materially affect the position.
The legislature as a result of the amendment clarified what was implicit in the provisions as they existed earlier.
An amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provi sion even though such amendment is not given retrospective effect.
[956 B]
|
Appeal Nos.
266 267 of 1993.
From the Judgment and Order dated 8.2.91 & 22.3.91 of the Central Administrative Tribunal Principal Bench, New Delhi in O.A. No. 2540/89 & M.P. No. 219 of 1991.
K.T.S. Tulsi, Additional Solicitor General B. Parthasarthy, P. Parmeshwaran and C.V.S. Rao for the Appellants.
Indu Malhotra for the Respondent.
The Judgment of the Court was delivered by MOHAN, J.
Leave granted.
The respondent, while working as Income Tax Officer, Muktsar during the year 1982 83 completed certain assessments.
A charge memorandum dated 2.5.1989 was served on him to the effect it was proposed to hold an inquiry against him under Rule 14 of the Central Civil Services (Classification, Central & Appeal) Rules, 1965.
A statement of article of charge framed against him was to the following effect : STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST, SHRI K.K. DHAWAN, A GROUP 'A ' NOW POSTED AS ASSISTANT COMMISSIONER OF INCOME TAX, BOMBAY.
Article I Shri K.K. Dhawan while functioning as I.T.O. "A" 300 Ward, Muktsar during 1982 1983 completed nine assessments in the case of : (1) M/s Chananna Automobiles, (2) N/s Gupta Cotton Industries, (3) M/s Ajay Cotton Industries, (4) M/s National Rice Mills, (5) M/s Tek Chand Buchram, (6) M/s Tilak Cotton Industries, (7) M/s Chandi Ram Behari Lal, (8) M/s Phuman Mal Chandi Ram and (9) M/s Modern Tractors in an irregular manner, in undue haste and apparently with a view to conferring undue favour upon the assessees concemed By his above acts Shri Dhawan failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of a Govt.
servant, thereby violating provisions of Rules 3(1) (i), 3(1) (ii) and 3(1) (iii) of the CCS (Conduct) Rules, 1964.
This was accompanied by a statement of imputation of his misconduct or misbehaviour in support of the article of charge framed against him.
In each of the nine cases of the assesses above referred to, the details relating to misconduct or misbehaviour were furnished.
Therefore, it was charged that the respondent had violated the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964.
The necessary documents in support of these allegations were also enclosed.
Against the said memorandum dt.
2.5.1989, the respondent preferred an application O.A. No. 2540/89 before the Central Administrative Tribunal, New Delhi praying for a stay of the disciplinary proceedings and to consider his case for promotion on merits without resort to the sealed cover procedure.
301 By its order dt.
8.2.1991, Central Administrative Tribunal, Principal Bench, New Delhi directed the respondent Union of India to open the sealed cover immediately and implement the recommendations of the Departmental Promotion Committee in so far as it pertained to the petitioner and to promote him to the post of Deputy Commissioner of Income Tax if he was found fit for promotion within two weeks from the date of said order.
Thereafter, by a detailed judgment dated 22.3.1991, the Tribunal relying on S.L.P. (C) Nos.
2635 36/89 in Civil Appeal No. 4986 87/90, held that the action taken by the officer was quasi judicial and should not have formed the basis of disciplinary action.
Therefore, the application was allowed and the impugned memorandum dated 2.5.1989 was quashed.
The earlier order dated 8.2.1991 to open the sealed cover and implement the recommendations of Departmental Promotion Committee was made absolute.
Aggrieved by these two orders, the present special leave petitions have been preferred.
The teamed counsel for the appellant Shri K.T.S. Tulsi submits as under: (i) That in a case where disciplinary proceedings are pending against the respondent, the procedure of opening the sealed cover should not have been resorted to.
Otherwise, it would amount to putting a premium on misconduct.
(ii)The Tribunal failed to appreciate the ratio of the order in C.A. Nos.
4986 87/90.
In that case, the enquiry report showed that the charge framed against the officer had not been proved.
That is entirely different from holding that in a case of quasi judicial action taken by the Officer no disciplinary action could be taken.
The true purport of that observation is only to buttress the earlier finding that the charge had not been proved.
Therefore, reliance ought not to have been placed on this ruling which turned on the peculiar facts and circumstances of that case.
302 (iii)Though nine cases were cited in the charge memorandum, only one of the cases had been discussed.
(iv)Lastly, it is submitted that the respondent is charged for violation of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964.
Therefore, if the conduct of the respondent could be brought within the scope of the Rules, immunity from the disciplinary action cannot be claimed.
In support of these submissions, reliance is placed on Union of India & Ors.
vs A.N. Saxena, ; In Civil Appeal No. 560 of 1991, the peculiar facts art different; in disregard to the instructions of the Central Board of Direct Taxes, refund of taxes was ordered.
Further, there was no allegation of corrupt motive or to oblige any person on account of extraneous considerations.
Therefore, that ruling is distinguishable.
The respondent would try to support the impugned order contending that the opening of the sealed cover was correctly ordered because on the date when the Departmental Promotion Committee met in March 1989, no charge sheet had been served on the respondent.
The charge memorandum dated 2.5.1989 came up to be served only on 5.5.1989.
Therefore, following the earlier procedure such a direction was given.
This is a case in which the respondent was exercising quasi judicial functions.
If the orders were wrong the remedy by way of an appeal or revision could have been resorted to.
Otherwise, if in every case of wrong order, disciplinary action is resorted to, it would jeopardize the exercise of judicial functions.
The immunity attached to the officer while exercising quasi judicial powers will be lost.
Rightly, therefore, the Tribunal relied on Civil Appeal Nos.
4986 87/90 where this Court took the view that no disciplinary action can be taken in respect of exercising quasi judicial functions.
To the same effect in Civil Appeal No. 560/91 the decision relied on by the appellant namely Union of India & Ors., ; (supra) has no application to the instant case.
The charge memorandum dated 2.5.1989 states as follows 303 MEMORANDUM "The President proposes to hold an inquiry against Shri K.K. Dhawan under Rule 14 of the Central Civil Services (Classification, Central and Appeal) Rules, 1965.
The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of article of charge.
" At this stage, we will refer to Rule 3(1)(i) , 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 which are as under Rule 3 (1) : Every government servant shall at all time (i) maintain absolute integrity; (ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government servant.
The substance of the charge is the completion of nine assessments in an irregular manner, hastily with a view to confer undue favour upon the various assessees.
By such act, the respondent failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of government servant.
Certainly, it cannot be contended that concerning the violation of these rules, no disciplinary action could be taken.
However, what is urged is that in so far as the respondent was exercising quasi judicial functions, he could not be subject to disciplinary action.
The order may be wrong.
In such a case, the remedy will be to take up the matter further in appeal or revision.
The question, therefore, arises whether an authority enjoys immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi judicial functions? In Govinda Menon vs Union of India, ; , it was contended that no disciplinary proceedings could be taken against appellant for acts or omissions with regard to his work as Commissioner under Madras Hindu Religious and Charitable Endowments Act, 1951.
Since the 304 orders made by him were quasi judicial in character, they should be challenged only as provided for under the Act.
It was further contended that having regard to scope of Rule 4 of All India Services (Discipline and Appeal) Rules, 1955, the act or omission of the Commissioner was such that appellant was not subject to the administrative control of the Government and therefore, the disciplinary proceedings were void.
Rejecting this contention, it was held as under : "It is not disputed that the appropriate Government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the Central Government, but it was contended that I.A.S. Officers are governed by statutory rules, that ,any act or omission ' referred to in Rule 4(1) relates only to an act or omission of an officer when serving under the Government, and that 'serving under the Government ' means subject to the administrative control of the Government and that disciplinary proceedings should be, therefore, on the basis of the relationship of master and servant.
It was argued that in exercising statutory powers the Commissioner was not subject to the administrative control of the Government and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner.
We are unable to accept the proposition contended for by the appellant as correct.
Rule 4(1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted.
Rule 4(1) (b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission.
It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant.
It is, therefore, open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast 305 a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the service.
It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue.
In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject matter of disciplinary proceedings.
In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship.
To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government.
The test is whether the act or omission has some reasonable connection with nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant.
We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service.
" In this context reference may be made to the following observations of Lopes, LJ.
in Pearce vs Foster, [1866] 17 OBD 536, p.542.
"If a servant conducts himself in a way inconsistent with the 306 faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal.
That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business.
It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." (emphasis supplied) Concerning, the exercise of quasi judicial powers the contention urged was to the following effect : "We next proceed to examine the contention of the appellant that the Commissioner was exercising a quasi judicial function in sanctioning the leases under the Act and his order, therefore, could not be questioned except in accordance with the provisions of the Act.
The proposition put forward was that quasi judicial orders, unless vacated under the provisions of the Act, are final and binding and cannot be questioned by the executive Government through disciplinary proceedings.
It was argued that an appeal is provided under S.29(4) of the Act against the order of the Commissioner granting sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or correctness of the order of the Commissioner and that the Government also may in revision under S.99 of the Act examine the correctness or legality of the order.
it was said that so long as these methods were not adopted the Government could not institute disciplinary proceedings and reexamining the legality of the order of the Commissioner granting sanction to the leases.
" That was rejected as under: 'The charge is, therefore, one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of S.29 and the Rules thereunder in sanctioning the leases.
On behalf of the respondents it was argued 307 both by Mr. Sarjoo Prasad and Mr. Bindra that the Commissioner was not discharging quasi judicial functions in sanctioning leases under S.29 of the Act, but we shall proceed on the assumption that the Commissioner was performing quasi judicial functions in granting leases under S.29 of the Act.
Even upon that assumption we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty.
It is true if the provisions of S.29 of the Act or the Rules are disregarded the order of the Commissioner is illegal and such an order could be questioned in appeal under S.29 (4) or in revision under S.99 of the Act.
But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commissioner.
The appellant was proceeded against because in the discharge of his functions, he acted in utter disregard of the provisions of the Act and the Rules.
It is the manner in which he discharged his functions that is brought up in these proceedings.
In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against.
It is manifest, therefore, that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power.
We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was 308 guilty of misconduct or gross negligence.
We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case.
" The above case, therefore, is an authority for the proposition that disciplinary proceedings could be initiated against the government servant even with regard to exercise of quasi judicial powers provided : (i) The act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty, or (ii)there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or (iii)the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power.
We may also usefully refer to two English decisions.
Thayre vs The London, Brighton and South Coast Railway Company, states: "Dishonesty ' included dishonesty outside the service of the company as well as dishonesty towards the company." In Thompson vs British Berna Motor Lorries Limited 33 T.L.R. 187 at page 188, it has been held as under : "It was the duty of the servant to render proper, full and clear accounts to his principals, and it was the duty of a servant to render prompt obedience to the lawful orders of his master.
in this case the plaintiff had failed in both respects.
There was no question as to the plaintiff 's honesty, but he had been negligent.
" The Tribunal has chosen to rely on Civil Appeal Nos.
4986 87/90.
The order in that case clearly shows the ultimate conclusion was that the charge framed against the delinquent officer had not been established.
In support of that conclusion, it was observed as under 309 "We are also of the view that the action taken by the appellant was quasi judicial and should not have formed the basis of disciplinary action.
" We do not think where to buttress the ultimate conclusion, this observation was made, that could ever be construed as laying the law that in no case disciplinary action could be taken if it pertains to exercise of quasi judicial powers.
Then, we come to Civil Appeal No. 560/91 to which one of us (Mohan, J.) was a party.
The ruling in this case turned on the peculiar facts.
Nevertheless, what we have to carefully notice is the observation as under : "On a reading of the charges and the allegations in detail learned Additional Solicitor General has fairly stated that they do not disclose any culpability nor is there any allegation of taking any bribe or to trying to favour any party in making the orders granting relief in respect of which misconduct is alleged against the respondent.
" The above extract will clearly indicate that if there was any culpability or any allegation of taking bribe or trying to favour any party in exercise of quasi judicial functions, then disciplinary action could be taken.
We find our conclusion is supported by a following observations found in the said order at page 3: "In our view, the allegations are merely to the effect that the refunds were granted to unauthorized instructions of the Central Board of Direct Taxes.
There is no allegation, however, either express or implied that these actions were taken by the respondent actuated by any corrupt motive or to oblige any person on account of extraneous considerations.
In these circumstances, merely because such orders of refunds were made, even assuming that they were erroneous or wrong, no disciplinary action could be taken as the respondent was discharging quasi judicial function.
If any erroneous order had been passed by him correct remedy is by way of an appeal or revision to have such orders set aside.
" 310 In the case on hand, article of charge clearly mentions that the nine assessments covered by the article of charge were completed (i) in an irregular manner, (ii) in undue haste, and (iii) apparently with a view to confer undue favour upon the assessees concerned.
(Emphasis supplied) Therefore, the allegation of conferring undue favour is very much there unlike Civil Appeal No. 560/91.
If that be so, certainly disciplinary action is warranted.
This Court had occasion to examine the position.
In Union of India & Ors.
vs A.N. Saxena; , to which one of us (Mohan, J.) was a party, it was held as under : "It was urged before us by learned counsel for the respondent that as the respondents was performing judicial or quasi judicial functions in making the assessment orders in question even if his actions were wrong they could be corrected in an appeal or in revision and no disciplinary proceedings could be taken regarding such actions.
In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi judicial proceedings is not correct.
It is true that when an officer is performing judicial or quasi judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant.
The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence.
Hence, the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi judicial functions in respect of his actions in the discharge or purported to discharge his functions.
But it is not as if such action cannot be taken at all.
Where the 311 actions of such an officer indicate culpability, namely a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken.
" This dictum fully supports the stand of the appellant.
There is a great reason and justice for holding in such cases that the disciplinary action could be taken.
It is one of the cardinal principles of administration of justice that it must be free from bias of any kind.
Certainly, therefore, the officer who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge.
Accordingly, the contention of the respondent has to be rejected.
It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer.
The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act.
But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules.
Thus, we conclude that the disciplinary action can be taken in the following cases (i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; (ii)if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii)if he has acted in a manner which is unbecoming of a government servant; (iv)if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (v) if he had acted in order to unduly favour a party , (vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great.
" 312 The instances above catalogued are not exhaustive.
However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted.
Here, we may utter a word of caution.
Each case will depend upon the facts and no absolute rule can be postulated.
In view of the foregoing discussion, the appeals will stand allowed.
There will be no order as to costs.
We make it clear that it is open to the respondent to put forth all defenses open to him in the departmental inquiry which will be considered on its merit.
V.P.R. Appeals allowed.
| The petitioners challenged before the High Court the levy of excise duty on the weight of the yarn sized for the purpose of weaving them into fabrics.
The High Court held that no duty could be levied on the weight of the sizing material contained in yarn, and directed that the duty should be refunded since it has been levied not on the basis of yarn at the spindle stage, but on the weight of the sized yarn.
After the said judgment, the Central Government by Notification dated 20.2.1982 amended Rules 9 and 49 of the and Section 51 of the Finance Act, 1982 with retrospective effect.
In accordance with the said Notification, Central Excise Department issued show cause notices to the petitioners.
The constitutional validity of these amendments are challenged by the petitioners in the present Writ Petitions filed before this Court.
On behalf of the petitioners, it was contended that their cases were covered by the decision of this Court in J.K. Cotton Spinning and Weaving Mills Ltd. & Anr.
vs Union of India and Ors., ; and that excise duty could be levied on the weight of the unsized yarn and not on the basis of the weight of the sized yarn.
Allowing the petitions, this Court HELD: 1.1.
The Vires of Rules 9 and 49 of the Central Excise Rules, 1944 as well as section 51 of the Finance Act, 1982 and the retrospective 143 application of the same has already been upheld by this Court.
[145E] 1.2.
The sized yam which is actually put into the integrated process will not again be subjected to payment of excise duty, for the unsized yam which is sized for the purpose, does not change the nature of commodity as yarn.
Thus excise duty cannot be levied on the weight of the yarn after the yarn is sized for the purpose of weaving the same into fabrics.
[145G] 13.
Practically nine years have gone by since the show cause notices were issued by virtue of the same directives which were subject matter of J.K Cotton Mills case.
In view of this peculiar fact it would not be in the interest of justice if the petitioners are directed to contest the individual show cause notices issued by the respondents.
In order to avoid multiplicity of proceedings involving time and expense, the show cause notices in all these cases are quashed.
[148F G] J.K Cotton Spinning and Weaving Mills Ltd & Anr.
vs Union of India & Ors.
, ; , applied.
|
Appeal No. 387 of 1960.
Appeal by special leave from the judgment and order dated February 12, 1960, of the Andhra Pradesh High Court, in Writ Petition No. 5 of 1960.
P. A. Choudhuri and K. R. Choudhuri, for the appellants.
P. Ram Reddy, for respondents Nos. 1, 2 and 6 to 11. 1960.
November 7.
The Judgment of Gajendragadkar, Subha Rao, Wanchoo and,.
Mudholkar, JJ., 38 298 was delivered by Subba Rao, J. Sarkar, J., delivered a separate judgment.
SUBBA RAO J.
This appeal by special leave is directed against the judgment of the High Court of Judicature at Hyderabad dismissing the petition filed by the appellants under article 226 of the Constitution to issue a writ of quo warranto against respondents 1 to 10 directing them to exhibit an information as to the authority under which they are functioning as members of the Vicarabad Municipal Committee and to restrain them from selling certain plots of land belonging to the Municipality to third parties.
Vica rabad was originally situate in the Part B State of Hyderabad and is now in the State of Andhra Pradesh.
The Municipal Committee of Vicarabad was constituted under the Hyderabad Municipal and Town Committees Act (XXVII of 1951).
In the year 1953 respondents 1 to 10 were elected, and five others, who are not parties before us, were nominated, to that Committee.
On November 27, 1953, the Rajpramukh of the State of Hyderabad published a notification under the relevant Acts in the Hyderabad Government Gazette Extraordinary notifying the above persons as members of the said Committee.
Presumably with a view to democratize the local institutions in that part of the country and to bring them on a par with those prevailing in the neighbouring States, the Hyderabad District Municipalities Act, 1956 (XVIII of 1956), (hereinafter referred to as the Act), was passed by the Hyderabad _ Legislature and it received the assent of the President on August 9, 1956.
Under section 320 of the Act the Hyderabad Municipal and Town Committees Act, 1951 (XXVII of 1951) and other connected Acts were repealed.
As a transitory measure, under the same section any Committee constituted under the enactment so repealed was deemed to have been constituted under the Act and the members of the said Committee were to continue to hold office till the first meeting of the Committee was called under section 35 of the Act.
Under that provision respondents 1 to 10 and the five nominated members continued to function as members 299 of the Municipal Committee.
In or about the year 1958 the said Committee acquired land measuring acres 15 7 guntas described as " Varad Raja Omar Bagh " for Rs. 18,000 for the purpose of establishing a grain market (gunj).
For one reason or other, the Municipal Committee was not in a position to construct the grain market and run it departmentally.
The Committee, therefore, after taking the permission of the Government, resolved by a requisite majority to sell the said land to third parties with a condition that the vendee or vendees should construct a building or buildings for running a grain market.
There after the Committee sold the land in different plots to third parties ; but the sale deeds were not executed in view of the interim order made in the writ petition by the High Court and subsequently in the appeal by this Court.
In the writ petition the appellants contended, inter alia, that the respondents ceased to be members of the Municipal Committee on the expiry of three years from the date the new Act came into force and that, therefore, they had no right to sell the land, and that, in any view, the sale made by the Committee of the property acquired for the purpose of constructing a market was ultra vires the provisions of the Act.
The respondents contested the petition on various grounds.
The learned Judges of the High Court dismissed the petition with costs for the following reasons: 1.
The old Committee will continue to function till a new Committee comes into existence.
" Section 76 contemplates that property vested in it under section 72(f), 73 and 74 should be transferred only to Government.
Here, the transfer is not in favour of the Government.
That apart we are told that in this case sanction of the Government was obtained at every stage.
It cannot be predicated that the purpose for which the properties are being disposed of is not for a, public purpose.
It is not disputed that the properties are being sold only to persons who are required to build grain market ".
The act now opposed is not in any way in conflict with the provisions of sections 244, 245 and 247.
300 4.
" It looks to us that the petitioners lack in bona fides and that this petition is not conceived in the interests of the public ".
The present appeal, as aforesaid, was filed by special leave granted by this Court.
Mr. P. A. Chowdury, learned counsel for the appellants, canvassed the correctness of the findings of the High Court.
His first argument may be summarized thus: Under section 320 of the Act any Committee constituted under the repealed enactment shall be deemed to have been constituted under the Act and the members of the said Committee shall continue to hold office till the first meeting of the Committee is called under section 35 of the Act.
Under section 35 of the Act, the first meeting of the Committee shall not be held on a date prior to the date on which the term of the outgoing members expires under section 34.
Section 34 of the Act provides that the members shall hold office for a term of three years.
Therefore, the term of the members of the Committee deemed to have been constituted under section 320 is three years from the date on which the Act came into force.
If the term fixed Under section 34 does not apply to the members of the said Committee, the result will be that the said members will continue to hold office indefinitely, for the first meeting of the Committee could not be legally convened under the Act as section 16 which enables the Collector to do so imposes a duty on him to hold a general election within three months before the expiry of the term of office of the members of the Committee as specified in section 34, and, as no definite term has been prescribed for the members of the Committee under section 320, the election machinery fails, with the result that the members of the " deemed " Committee would continue to be members of the said Committee indefinitely.
On this inter pretation learned counsel contends that the section would be void for the following reasons: (1) section 320(1)(a) of the Act would be ultra vires the powers of the State Legislature under article 246 of the Constitution, read with entry 5, List II, VII Schedule; (2) the said section deprives the appellants of the right to equality and protection of the laws guaranteed under article 14 301 of the Constitution; (3) section 320 would be void also as inconsistent with the entire scheme of the provisions of the Act.
Let us first test the validity of the construction of section 320 of the Act suggested by the learned counsel.
The material part of section 320 reads: " (1) The Hyderabad Municipal and Town Committees Act, 1951, (XXVII of 1951). . . . (is) hereby repealed ; provided that: (a) any Committee constituted under the enactment so repealed (hereinafter referred to in this section as the said Committee) shall be deemed to have been constituted under this Act, and Members of the said Committee shall continue to hold office till the first meeting of the Committee is called under section 35;".
The terms of the section are clear and do not lend any scope for argument.
The section makes a distinction between the " said" Committee and the Committee elected under the.
Act and says, " Members of the said Committee shall continue to hold office till the first meeting of the Committee is called under section 35 ".
Though the word " Committee" is defined in section 2(5) to mean a Municipal or Town Committee established or deemed to be established under the Act, that definition must give way if there is anything repugnant in the subject or context.
As the section makes a clear distinction between the " said " Committee and the Committee elected under the Act, in the context, the Committee in section 320 cannot mean the Committee elected under the Act.
The term fixed for the members of the Committee constituted under the Act cannot apply to the members of the Committee deemed to have been constituted under the Act.
Section 32 which provides for the culminating stage of the process of election under the Act says that the names of all members finally elected to any Committee shall be forthwith published in the official Gazette.
Section 34 prescribes the term of office of the members so elected.
Under it, " except as is otherwise provided in this Act, members shall hold office for a term of three years." Section 320(1)(a) provides a different term for the 302 members of the Committee deemed to have been constituted under the Act.
Thereunder, the term is fixed not by any number of years but by the happening of an event.
The Committee constituted under section 320 clearly falls under the exception.
But it is suggested that the exception refers only to section 28 whereunder a member of a, Committee ceases to be one by a supervening disqualification.
Firstly, this section does not fix a term but only imposes a disqualification on the basis of a term fixed under section 34; secondly, assuming that the said section also fixes a term, the exception may as well cover both the deviations from the normal rule.
That apart, sub section
(2) of section 34 dispels any doubt that may arise on the construction of sub section (1) of the section.
Under sub section
(2), the term of office of such members shall be deemed to commence on the date of the first meeting called by the Collector under section 35.
Section 35 directs the Collector to call a meeting after giving at least five clear days notice within thirty days from the date of the publication of the names of members under section 32.
This provision clearly indicates that the members of the Committee mentioned in section 34 are only the members elected under the Act and not members of tile Committee deemed to have been elected under the Act, for, in the case of the latter Committee, no publication under section 32 is provided for and therefore the provisions of section 35 cannot apply to them.
It is, therefore, manifest that the term prescribed in section 34 cannot apply to a member of the deemed " Committee.
Let us now see whether this interpretation would necessarily lead us to hold that the members of the " deemed " Committee under section 320(1)(a) would have an indefinite duration.
This result, it is suggested, would flow from a correct interpretation of the relevant provisions of section 16 of the Act.
The judgment of the High Court does not disclose that any argument was addressed before that Court on the basis of section 16 of the Act.
But we allowed the learned counsel to raise the point as in effect it is only a link in the chain of his argument to persuade us to hold in his favour on the construction of section 320.
303 Before we consider this argument in some detail, it will be convenient at this stage to notice some of the well established rules of Construction which would help us to steer clear of the complications created by the Act.
Maxwell " On the Interpretation of Statutes", 10th Edn., says at p. 7 thus: ". . . if the choice is between two inter pretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
" It is said in Craies on Statute Law, 5th Edn., at p. 82 Manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly to be avoided. ') Lord Davey in Canada Sugar Refining Co. vs R. provides another useful guide of correct perspective to such a problem in the following words: " Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter.
" To appreciate the problem presented and to give an adequate answer to the same, it would be necessary and convenient to notice the scheme of the Act as reflected in the relevant sections, namely, sections 16, 17, 18, 20, 32, 34 and 320.
The said scheme of the Act may be stated thus: Under the Act, there are general elections and elections to casual vacancies.
The general elections may be in regard to the first election after the Act came into force or to the subsequent elections under the Act.
Section 5 imposes a duty on the Government to constitute a Municipal Committee for each town and notify the date when it shall come into existence.
Section 17 enjoins on the Government to issue a notification calling upon all the constituencies to elect members in accordance (1) 304 with the provisions of the, Act on or before such date or dates as may be specified in the said notification.
Section 16 imposes a duty upon the Collector to hold a general election in the manner prescribed within three months before the expiry of the term of office of the members of the Committee as specified in section 34 of the Act.
Sub section (2) of section 16 provides for a bye election for filling up of a casual vacancy.
Section 18 enables the Collector with the approval of the Government to designate or nominate a Returning Officer.
Section 19 imposes a duty upon such an officer to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by the Act and the rules made there under.
Section 20 authorizes the Collector to issue a notification in the Official Gazette appointing the dates for making nominations, for the scrutiny of nominations, for the withdrawal of candidatures and for the holding of the poll.
After the elections are held in the manner prescribed, the names of all the members finally elected to any Committee shall be published in the Official Gazette.
Except as other,wise provided in the Act, section 34 prescribes the term of three years for a member so elected.
As a transitory provision till such an election is held, section 320 says that the members of the previous Committee constituted under the earlier Act shall be deemed to be constituted under the Act and the members thereof shall hold office till the first meeting of the Committee is called under section 35 of the Act.
It is clear from the aforesaid provisions that the Government notifies the dates calling upon all the constituencies to elect the members before such date or dates prescribed; the Collector holds the election and fixes the dates for the various stages of the process of election ; the Returning Officer appointed by the Collector does all acts and things necessary for effectually conducting the election.
On the general scheme of the Act we do not see any legal objection to the Collector holding the first elections under the Act.
The legal obstacle for such a course is sought to be raised on the wording of section 16(1).
305 Every general election requisite for the purpose of this Act shall be held by the Collector in the manner prescribed within three months before the expiry of the term of office of the members of the Committee as specified in section 34.
" The argument is that the Collector 's power to hold a general election is confined to section 16(1) and, as in the case of the members of the Committee deemed to have been constituted under the Act the second limb of the section cannot apply and as the Collector 's power is limited by the second limb of the section, the Collector has no power to hold the first general election under the Act.
If this interpretation be accepted, the Act would become a dead letter and the obvious intention of the Legislature would be defeated.
Such a construction cannot be accepted except in cases of absolute intractability of the language used.
While the Legislature repealed the earlier Act with an express intention to constitute new Committees on broad based democratic principles, by this interpretation the Committee under the old Act perpetuates itself indefinitely.
In our view, section 16(1) does not have any such effect.
Section 16(1) may be read along with the aforesaid other relevant provisions of the Act.
If so read, it would be clear that it could not apply to the first election after the Act came into force, but should be confined to subsequent elections.
So far as the first general election is concerned, there is a self contained and integrated machinery for holding the election without in any way calling in aid the provisions of section 16(1).
Section 17 applies to all elections, that is, general as well as bye elections.
It applies to the first general election as well as subsequent general elections.
The proviso to that section says that for the purpose of holding elections under sub section
(1) of section 16 no such notification shall be issued at any time earlier than four months before the expiry of the term of office of the members of the Committee as specified in section 34.
The proviso can be given full meaning, for it provides only for a case covered by section 16(1) and, as the first general election is outside the scope of section 16(1), 39 306 it also falls outside the scope of the proviso to section 17.
Under section 17, therefore, the Government, in respect of the first general election, calls upon all the constituencies to elect members before the date or dates fixed by it.
Under section 20, the Collector fixes the dates for the various stages of the election.
The Returning Officer does all the acts and things necessary for conducting the election and when the election process is completed, the names of the members elected are published.
All these can be done without reference to section 16(1), for the Collector is also empowered under section 20 to hold the elections.
In this view, there cannot be any legal difficulty for conducting the first election, after the Act came into force.
If so, the term of the members of the Committee deemed to have been elected would come to an end when the first meeting of the Committee was called under section 35.
The Legislature in enacting the law not only assumed but also expected that the Government would issue the requisite notification under section 17 of the Act within a reasonable time from the date when the Act came into force.
The scheme of the Act should be judged on that basis; if so judged, the sections disclose an integrated scheme giving section 320 a transitory character.
It is conceded by learned counsel that if section 320(1)(a) is constructed in the manner we do, the other points particularised above do not arise for consideration.
Before leaving this part of the case we must observe that the difficulty is created not by the provisions of the Act but by the fact of the Government not proceeding under section 17 of the Act within a reasonable time from the date on which the Act came into force.
This is a typical case of the legislative intention being obstructed or deflected by the inaction of the executive.
Mr. Ram Reddy, learned counsel for the respondents, states that there are many good reasons why the Government did not implement the Act.
There may be many such reasons, but when the Legislature made an Act in 1956, with a view to democratize municipal administration in that part of the country so as to bring it on a par with that obtaining in other 307 States, it is no answer to say that the Government had good reasons for not implementing the Act.
If the Government had any such reasons, that might be an occasion for moving the Legislature to repeal the Act or to amend it.
If the affected parties had filed a writ of mandamus in time, this situation could have been avoided ; but it was not done.
We hope and trust that the Government would take immediate steps to hold elections to the Municipal Committee so that the body constituted as early as 1953, under a different Act could be replaced by an elected body under the Act.
Even so, learned counsel for the appellants contends that the Municipal Committee had no power to sell the land acquired by it for constructing a market.
To appreciate this contention it would be convenient to notice the relevant provisions of the Act.
Under section 72(f) all land or other property transferred to the Committee by the Government or the District Board or acquired by gift, purchase, or otherwise for local purposes shall vest in and be under the control of the Committee.
Section 73 enables the Government, in consultation with the Committee, to direct that any property, movable or immovable, which is vested in it, shall vest in such Committee.
Section 74 empowers the Government on the request of the Committee to acquire any land for the purposes of the Act.
Under section 76, the Committee may, with the sanction of the Government, transfer to the Government any property vested in the Committee under sections 72(f), 73 and 74, but not so as to affect any trust or public right subject to which the property is held.
Learned counsel contends that, as the land was acquired by the Committee for the construction of a market, the Committee has power to transfer the same to the Government only subject to the conditions laid down in section 76, and that it has no power to sell the land to third parties.
This argument ignores the express intention of section 77 of the Act.
Section 77 says: " Subject to such exceptions as the Government may by general or special order direct, no Committee shall transfer any immovable property except in pursuance of a resolution passed at a meeting by a 308 majority of not less than two third of the whole number of members and in accordance with rules made under this Act, and no Committee shall transfer any property which has been vested in it by the Government except with the sanction of the Government: Provided that nothing in this section shall apply to leases of immovable property for a term not exceeding three years ".
This section confers on the Committee an express power couched in a negative form.
Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative.
If the section is recast in an affirmative form, it reads to the effect that the Committee shall have power to transfer any immovable property, if the conditions laid down under the section are complied with.
The conditions laid down are: (1) there shall be a resolution passed at a meeting by a majority of not less than two third of the whole number of members of the Committee; (2) it shall be in accordance with the rules made under the Act; (3) in the case of a property vested in it by the Government, the transfer can be made only with the sanction of the Government; and (4) the sale is not exempted by the Government, by general or special order, from the operation of section 77 of the Act.
It is not disputed that the relevant conditions have been complied with in the present case.
If so, the power of the Committee to alienate the property cannot be questioned.
Learned counsel contends that the provisions of section 76 govern the situation and that section 77 may apply only to a property vested in the Committee under provisions other than those of sections 72(f), 73 and 74, and that further, if a wider interpretation was given to section 77, while under section 76 the transfer in favour of the Government would be subject to a trust or public right, under section 77 it would be free from it if it was transferred to a private party.
The first objection has no force, as there are no sections other than sections 72, 73 and 74 whereunder the Government vests property in a Committee.
The second objection also has no merits, for the trust or public right mentioned in section 76 309 does not appear to relate to the purpose for which the property is purchased but to the trust or public right existing over the property so alienated by the Committee.
Further the proviso to section 77, which says, " nothing in this section shall apply to leases of immovable property for a term not exceeding three years ", indicates that the main section applies also to the property vested in the Committee under the previous section, for it exempts from the operation of the operative part of section 77 leases for a term not exceeding three years in respect of properties covered by the preceding section and other sections.
This interpretation need not cause any apprehension that a Com mittee may squander away the municipal property, for section 77 is hedged in by four conditions and the conditions afford sufficient guarantee against improper and improvident alienations.
In this context learned counsel for the appellants invoked the doctrine of law that an action of a statutory corporation may be ultra vires its powers without being illegal and also the principle that when a statute confers an express power, a power inconsistent with that expressly given cannot be implied.
It is not necessary to consider all the decisions cited, as learned counsel for the respondents does not canvass the correctness of the said principles.
It would, therefore, be sufficient to notice two of the decisions cited at the Bar.
The decision in Elizabeth Dowager Baroness Wenlock vs The River Dee Company (1) is relied upon in support of the proposition that when a corporation is authorised to do an act subject to certain conditions, it must be deemed to have been prohibited to do the said act except in accordance with the provisions of that Act which confers the authority on it.
Where by Act 14 & 15 Viet.
a company was empowered to borrow at interest for the purposes of the concerned Acts, subject to certain conditions, it was held that the company was prohibited by the said Act from borrowing except in accordance with the provisions of that Act.
Strong reliance is placed on the decision in Attorney General vs Fulham Corporation (1) (2) 310 There, in exercise of the powers conferred under the Baths and Wash houses Acts the Metropolitan Borough of Fulham propounded a scheme in substitution of an earlier one whereunder it installed a wash house to which persons resorted for washing their clothes bringing their own wash materials and utilised the facilities offered by the municipality on payment of the prescribed charges.
Sarjant, J., held that the object of the legislation was to provide for persons who became customers facilities for doing their own washing, but the scheme provided for washing by the municipality itself and that, therefore, it was ultra vires the statute.
In coming to that conclusion the learned Judge, after considering an earlier decision on the subject, applied the following principle to the facts of the case before him : " That recognises that in every case it is for a corporation of this kind to show that it has affirmatively an authority to do particular acts; but that in applying that principle, the rule is not to be applied too narrowly, and the corporation is entitled to do not only that which is expressly authorised but that which is reasonably incidental to or consequential upon that which is in terms authorized.
" The principle so stated is unobjectionable.
The correctness of these principles also need not be canvassed, for the construction we have placed on the provisions of the Act does not run counter to any of these principles.
We have held that section 77 confers an express power on the Municipal Committee to sell property subject to the conditions mentioned therein.
Therefore, the impugned sales are not ultra vires the powers of the Committee.
In view of the said express power, no prohibition can be implied from the provisions of section 76.
Learned counsel further contends that the statutory power can be exercised only for the purposes sanctioned by the statute, that the sales of the acquired land to private persons were not for one of such purposes, and that, therefore, they were void.
The principle that a statutory body can only function within the statute is unexcecutionable; but the 311 Legislature can confer a power on a statutory corporation to sell its land is equally uncontestable.
In this case we have held that the statute conferred such a power on the Municipal Committee, subject to stringent limitations.
Many situations can be visualized when such a sale would be necessary and would be to the benefit of the corporation.
of course the price fetched by such sales can only be utilised for the purposes sanctioned by the Act.
The last point raised is that the learned Judges of the High Court were not justified in holding on the materials placed before them that the appellants lacked bona fides and that the petition filed by them was not conceived in the interests of the public.
We do not find any material on the record to sustain this finding.
Indeed, but for the petitioner appellants the extraordinary situation created by the inaction of the Government in the matter of implementing the Act, affecting thereby the municipal administration of all the districts in Telangana area, might not have been brought to light.
We cannot describe the action of the appellants either mala fide or frivolous.
In the result, the appeal fails and is dismissed but, in the circumstances, without costs.
SARKAR, J.
The first question is whether the first ten respondents are still members of the Municipal Committee of Vicarabad.
These persons had been elected to the Committee in the elections held in 1953 under the Hyderabad Municipal and Town Commit tees Act, 1951 (Hyderabad Act XXVII of 1951), hereafter called the repealed Act.
That Act was repealed by the Hyderabad District Municipalities Act (Hyderabad Act XVIII of 1956), hereafter called the new Act, which came into force in August 1956.
The appellants, who are rate payers of the Municipality, contend that on a proper reading of the new Act, it must be held that these ten respondents have ceased to be members of the Committee, and they seek a writ of quo warranto against the respondents.
Section 320 of the new Act provides that any Committee constituted under the repealed Act shall be deemed to have been constituted under the new Act 312 and its members shall continue to hold office till the first meeting of the Committee is called under section 35 of the new Act.
The ten respondents contend that as admittedly the meeting under section 35 has not been called, their term of office has not yet expired.
Now section 35, so far as is material, provides that the first meeting of the Committee shall be called by the Collector within thirty days of the date of publication of the names of members under section 32.
Section 32 states that the names of members finally elected to any Committee shall be forthwith published in the official Gazette.
It is quite clear, therefore, that the Committee mentioned in this section, is a Committee constituted by an election held under the new Act.
It would follow that the meeting contemplated in section 35 is a meeting of a Committee constituted by an election held under the new Act.
The provisions of that section put this beyond doubt.
In order, therefore, that a meeting of the Committee contemplated in section 35 may be held, there has first to be an election under the new Act to constitute the Committee.
No such election has yet been held.
It is the provision concerning election in the new Act that has given rise to the difficulty that arises in this case.
Section 16, sub section
(1), gives the power to hold the general elections.
It is in these words: Every general election requisite for the purpose of this Act shall be held by the Collector in the manner prescribed within three months before the expiry of the term of office of the members of the Committee as specified in section 34 ".
Section 34 in substance states that except as other.
wise provided members of the Committee shall hold office for a term of three years and that term of office shall be deemed to commence on the date of the first meeting called under section 35.
It would therefore appear that the members whose term of office is sought to be specified by section 34 are members elected under the new Act, for their term is to commence on the date that they first meet under section 35 and as earlier stated, the meeting under section 35 is a meeting of members elected under the new Act.
313 The contention for the appellants is that if a. 34 is construed in the way mentioned above, the first general election under the new Act cannot be held under section 16, for an election can be held under that section only within three months before the expiry of the term of office of members elected under the new Act and in the case of first election there are ex hypothesi, no such members.
It is said that as there is no other provision in the new Act for holding a general election, the Act would then become unworkable, for if the first general election cannot be held no subsequent election can be held either.
, The result, it is contended, is that the Committee elected under the repealed Act would continue for ever by virtue of section 320.
Such a situation, it is said, could not have been intended by the new Act.
It is therefore suggested that section 34 should be construed as specifying a term of office of three years from the commencement of the new Act for members elected under the repealed Act who are under section 320, to be deemed to form a Committee constituted under the new Act.
If section 34 is so construed, then the first general election under the new Act can properly be held under section 16.
It is on this basis that the appellants contend that the ten respondents ' term of office expired in August, 1959, and they are in possession of the office now without any warrant.
There is no doubt that the Act raises some difficulty.
It was certainly not intended that the members elected to the Committee under the repealed Act should be given a permanent tenure of office nor that there would be no elections under the new Act.
Yet such a result would appear to follow if the language used in the new Act is strictly and literally interpreted.
It is however well established that " Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or in justice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. . . 40 314 Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman 's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.
Nevertheless, the courts are very reluctant to substitute words in a Statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good Bense.": see Maxwell on Statutes (10th ed.) p. 229.
In Seaford Court Estates Ltd. vs Asher (1), Denning, L. J., said, " when a defect appears a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parliament. . . and then he must supplement the written word so as to give " force and life " to the intention of the legislature. . .
A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done.
A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
" I conceive it my duty, therefore, so to read the new Act, unless I am prevented by the intractability of the language used, as to make it carry out the obvious intention of the legislature.
Now there does not seem to be the slightest doubt that the intention of the makers of the new Act was that there should be elections held under it and that the Municipal Committees should be constituted by such elections to run the administration of the municipalities.
The sections to which I have so far referred and the other provisions of the new Act make this perfectly plain.
Thus section 5 provides for the establishment of municipal committees and section 8 states that the committees shall consist of a certain number of elected members.
The other sections show that the Committees shall have charge of the administration of the municipalities for the benefit of the dwellers within them.
It is plain (1) ,164. 351 that the entire object of the new Act would fail if no general election could be held under it.
The question then is, How should the Act be read so as to make it possible to hold general elections under it ? I agree with the learned advocate for the appellants that the only section in the new Act providing for general elections being held, is section 16(1).
In my view, section 20 does not authorise the holding of any general election; it only provides for a notification of the date on which the poll shall, if necessary, be taken.
There is no doubt that under section 16(1) the second and all subsequent general elections can be held ; in regard to such general elections, no difficulty is created by the language of the section.
It would be curious if section 20 also provided for general elections, for then there would be two provisions in the Act authorising general elections other than the first.
Then I find hat all the sections referring to general elections refer to such elections being held under section 16(1) and not under section 20.
Thus section 31 provides that if at a general election held under section 16, no member is elected, a fresh election shall be held.
It would follow that if in an election under section 20, assuming that that section authorises an election, no member is elected, no fresh election can be held.
There would be no reason to make this distinction between elections held under section 16 and under section 20.
Again the proviso to section 17 requires a certain notification to be issued within a prescribed time for holding elections under section 16(1).
If an election can be held under section 20, no such notification need be issued for there is no provision requiring it.
This could not have been intended.
For all these reasons it seems to me that section 20 does not confer any power to hold any election.
I have earlier said that the suggestion for the appellants is that the best way out of the difficulty is to read section 34 as specifying a term of office of three years commencing from the coming into force of the new Act, for the members elected under the repealed Act who are to be deemed under section 320 to be a committee constituted under the new Act.
It seems to me that this is not a correct solution of the problem.
First, 316 the object of continuing the members elected under the repealed Act in office is clearly to have, what may be called a caretaker committee to do the work of the Municipality till a committee is constituted by election under the new Act.
It could not have been intended that the committee of the members elected under the repealed Act would function for three years after the new Act has come into operation nor that such members would have the same term of office as members elected under the new Act.
Secondly, I do not find the language used in section 34 sufficiently tractable to cover by any alteration, a member elected under the repealed Act.
To meet the suggestion of the appellants, a new provision would have really to be enacted and added to section 34 and this I do not think is permissible.
It would be necessary to add to the section a provision that in the case of members elected under the old Act the term of office of three years would start running from the commencement of the new Act, a provision which is wholly absent in the section as it stands.
Lastly, so read, section 34 would come into conflict with section 320 which expressly provides that the term of office of the members elected under the repealed Act would continue till the first meeting of the committee constituted under the new Act is held under section 35.
This portion of section 320 would have to be completely struck out.
It seems to me that the real solution of the difficulty lies in construing section 16(1) so as to authorise the holding of the first general election under it and remove the absurdity of there being no provision directing the first general election to be held.
Now that section applies to ,every general election requisite for the purpose of this Act.
" It therefore applies to the first and all other general elections.
The clear intention hence is that the first general election will also be held under this provision.
But such election cannot be held within the time mentioned therein for that time has to be calculated from the expiry of the term of office of the Committee elected under the Act and in the case of the first general election under the new Act, there is no such Committee.
The requirement 317 as to time cannot apply to the first general election.
The section has therefore to be read as if there was no such requirement in the case of the first general election.
It will have to be read with the addition of the words " provided that every general election excepting the first general election shall be held " between the words " prescribed " and " within ".
That would 'carry out the intention of the legislature and do the least violence to the language used.
So read, there would be clear power under the Act to hold the first general meeting.
There would of course then be no indication as to when this election is to be held but that would only mean that it has to be held within a reasonable time of the commencement of the new Act.
The course suggested by me is not without the support of precedents.
Thus in Salmon vs Duncombe (1), the Judicial Committee in construing a statute omitted from it the words " as if such natural born subject resided in England " because the retention of those words would have prevented the person contemplated getting full power to dispose of his immovable property by his will which it was held, the object of the statute was, he should get.
With regard to the other point argued in this .appeal, namely, whether the Municipal Committee even if properly constituted, has power to sell the land mentioned in the petition, I agree, for the reasons mentioned in the judgment delivered by the majority of the members of the bench, that it has such power and have nothing to add.
The appeal therefore fails.
Appeal dismissed.
| The appellant purchased groundnuts out of which it manu factured groundnut oil ; it also refined the oil and hydrogenated it converting it into Vanaspati.
It sold the oil in all the three states.
Under the Madras General Sales Tax Act, 1939, and the Turnover and Assessment Rules, for determining the taxable turnover the appellant was entitled to deduct the purchase price of the groundnuts from the proceeds of the sale of all groundnut oil.
The High Court held that the appellant was entitled to the deduction in respect of the sales of unrefined and refined groundnut oil but not in respect of the sales of hydrogenated oil on the ground that Vanaspati was not " groundnut oil " but a product of groundnut oil.
Held, that the appellant was entitled to the deduction in respect of the sales of hydrogenated groundnut oil also.
The hydrogenated groundnut oil continued to be " groundnut oil " notwithstanding the processing which was merely for the purpose of rendering the oil more stable.
To be groundnut oil two conditions had to be satisfied it must be from groundnut and it must be " oil ".
The hydrogenated oil was from groundnut and in its essential nature it remained an oil.
It continued to be used for the same purposes as groundnut oil which had not undergone the process.
A liquid state was not an essential characteristic of a vegetable oil ; the mere fact that hydrogenation made it semisolid did not alter its character as an oil.
|
Appeal No. 21 of 1956.
Appeal from the judgment and decree dated August 12,1954, of the Bombay High Court in Appeal No. 45 of 1954, arising out of the judgment and decree dated February 17, 1954, of the said High Court in Suit No. 246 of 1956.
H. J. Umrigar, N. N. Keswani and R. H. Dhebar, for the appellant.
M. C. Setalvad, Attorney General of India, section M. Dubash and G. Gopalakrishnan, for the respondents.
March 25.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal on a certificate granted by the Bombay High Court.
The brief facts necessary for its disposal are these.
Messrs. section section Miranda Ltd (hereinafter called the respondent) is a company and was holding a trade and import licence of foreign liquor as well as a vendor 's licence under the Bombay Abkari Act (Bom.
V of 1878) (hereinafter 399 called the Act), upto the end of March 1949.
It used to keep the liquor in a bonded warehouse.
On April 2, 1948, the respondent was informed by the State of Bombay (hereinafter called the appellant) to remove S, the liquor from the bonded warehouse after paying the necessary excise duty.
In pursuance of this letter, the respondent paid the duty and got transport permits from the appellant.
It may be mentioned that the bonded warehouse was in the premises of the respondent itself and all that happened after the payment of the duty was that the liquor no longer remained in bond but came into possession of the respondent.
The transport permits were issued on April 5, 1948, and thereafter the respondent took over the liquor and some of it was sold.
On December 16, 1948, a notification was issued by the appellant (hereinafter referred to as the Notification) whereby the duty on foreign liquor was doubled.
Thereupon the respondent was asked by the appellant to pay the additional duty upon the liquor which was still lying in its godown and was also told that it would not be permitted to deal with that liquor until the additional duty was paid.
The respondent objected to this demand but paid the duty, which came to over two lacs of rupees, under protest.
Thereafter a notice was given by the respondent under section 80 of the Code of Civil Procedure to the appellant and was followed by a suit on the original side of the Bombay High Court.
The main contention of the respondent was that the Notification in so far as it imposed and levied additional duty on the stock of foreign liquor on which the duty had already been paid at the time of its issue ' from the bonded warehouse was illegal, invalid and ultra vires the Act and in particular beyond the scope of section 19 of the Act.
The respondent therefore claimed refund of the duty which it had paid under protest and also interest at 6 per cent.
per annum from the date of payment till the date of recovery.
The suit was resisted by the appellant, and its case was that the Notification was valid and that the respondent was bound to pay the duty prevailing on 400 the transport of the excisable articles at the time of transporting the same from its premises to another place within the State of Bombay.
Thus the only question that fell for consideration was whether the additional duty imposed and levied under the Notification was legally levied.
The learned judge, who tried the suit, was of the opinion that it was competent for the legislature to impose tax on excisable articles whenever they were transported from one place to another and that that power was delegated to the State Government which was thus competent to impose a duty on excisable articles not only once when they were transported in the beginning but also thereafter whenever they were transported from one place to another within the State before the goods passed into the hands of the consumer, and dismissed the suit.
The respondent went in appeal against the dismissal.
The appeal was heard by a Division Bench and was allowed and the suit was decreed with interest at certain rates.
The Division Bench was of the opinion that reading sections 10 and 19 together it was clear that when the duty mentioned in section 19 had been paid, the prohibition contained in section 10 must disappear subject to the Explanation to section 19.
It also held that the first proviso to section 19A of the Act was really a proviso to section 19 and determined the rate at which the duty was to be paid and that there could be no further imposition of duty against the terms of that proviso by the Notification.
The main contention on behalf of the appellant before us is that it is open to the legislature to impose excise duty at more points than one and that that was what has been done by the legislature in this case and the Government when it made the Notification in December 1948 was carrying out the provisions of the Act.
Reliance in this connection was placed on sections 3(10), 10 and 19 of the Act, and it is urged that reading these three sections, together it will be clear that the Notification was valid and within the powers of the State Government.
The relevant portion of the Notification is in these terms: 401 " In exercise of the powers conferred by section 19 of the Bombay Abkari Act, 1878 (Bombay V of 1878), and in partial supersession of all previous orders and notifications issued thereunder, that is to say, in so far as they relate to the imposition of excise and countervailing duties charged on the excisable articles specified in column 1 of Schedules A and B hereto annexed, the Government of Bombay is pleased to direct that (a) excise or countervailing duty, as the case may be, shall be imposed on the excisable articles specified in column 1 of Schedule A at the rate specified in columns 2 and 3 thereof, when such excisable articles are (i) imported into the Province in accordance with the provision of sub section (1) of section 9 of the said Act; or (ii) issued from any brewery, distillery 'or a warehouse established under the said Act in the Province; or (iii) transported from the premises of persons holding a Trade and Import license under the said Act to any place within the Province: Provided that no such duty shall be imposed on the excisable articles which have been imported into British India and were liable on such importation to duty under the Indian Tariff Act, 1934, or the : Provided further that if excise or countervailing duty has already been paid on such excisable articles for their import, issue or transport for consumption into, to or within any place in the Province, the amount of duty to be imposed shall be the difference between the amount of duty leviable at the rates specified in the said Schedule and that already paid on such articles; and (b). . . . . . . ".
Then follow the Schedules Which it is unnecessary to set out.
By the notification excise duty at the rates specified in the Schedules is imposed on excisable articles when they are transported from the premises of persons holding a trade and import licence under the said Act to any place within the State.
The second 402 proviso, however, provides that where some excise duty has already been paid in connection with transport, the amount of duty to be imposed under the Notification would be the difference between the duty leviable under the Notification and the duty already Paid.
The narrow question therefore is whether this additional duty can be legally levied by the State of Bombay and the answer to it will depend on the three provisions of the Act relied upon by the appellant.
3(10) defines "to transport" to mean "to move to one place from another place within the State ".
This definition is very wide and would cover any movement of excisable article at any stage from one place to another within the State.
Then comes section 10, the relevant portion of which is in these terms " No intoxicant and no hemp shall be exported or transported unless (a) the duty, if any, payable under Chapter VI has been paid or a bond has been executed for the payment thereof.
" This section thus forbids the transport of any excisable article unless the duty payable under Chapter VI (which deals with the subject of duties) has been paid.
Lastly, we come to section 19 which is the charging section and is in these terms " An excise duty or countervailing duty, as the case may be, at such rate or rates as the State Government shall direct may be imposed either generally or for any specified local area, on any excisable article (a) imported in accordance with the provision of sub section (1) of section 9; or (b) exported or transported in accordance with the provisions of section 10; or (c) manufactured under a license granted in accordance with the provisions of section 14 or section 15; Provided that (i) duty shall not be so imposed on any article which has been imported into India and was liable on such importation to duty under the Indian Tariff Act, 1894 or the : 403 Explanation Duty may be imposed under this section at different rates according to the places to which any excisable article is to be removed for consumption, or according to the varying strengths and quality of such article.
" This section gives power to the State Government to fix the rate or rates on which the duty will be levied on transport of excisable articles.
The Explanation to the section gives powers to the State Government to impose duties at different rates according to the places to which any excisable article is to be removed for consumption or according to the varying strengths and quality of such article.
The argument on behalf of the appellant is that in view of the very wide definition of the word " transport " and the prohibition of transport contained in section 10 without payment of duty it is clear that every time there is transport the duty becomes payable at the rate fixed by the State Government under section 19 and that there is nothing in these sections which in any way limitsthe power to levy duty at every stage of transport.
If this argument is accepted it will logically mean that every time there is transport of an excisable article duty will have to be paid till the excisable article has been actually consumed.
In other words when for example, the excisable article is transported from the bonded warehouse by a wholesaler he will have to pay duty on it; when a wholesaler sells to a retailer there is bound to be transport from the wholesaler 's premises to the retailer 's premises and the duty will have to be paid again.
Finally when the retailer sells it to a consumer there will again be transport from the retailer 's place to the consumer 's place and duty will have to be paid a third time.
Further if the interpretation as urged on behalf of the appellant is accepted, the duty will have to be paid again and again in the cases mentioned above, even though the rate remains the same.
The fact that in this particular case the rate was changed and that the State Government only demanded the extra duty will not affect the question of interpretation of the three provisions of the Act with which we are concerned.
Was it then the intention of the legislature when it 404 made these provisions to levy duty irrespective of the fact whether the rate was changed or not, again and again as an excisable article passed from the bonded warehouse to the wholesaler, from the wholesaler to the retailer and from the retailer to the consumer ? It is true that it was competent for the legislature to make such a provision; but the question is whether the three provisions which we have set out above, amount to making such a provision.
Sri Umrigar for the appellant fairly admits that if the rate of duty had not been changed there would not have been any demand of any further duty on any sale by the respondent which might have resulted in transport and that the practice was not to charge the same duty over again on sale by the wholesaler to the retailer or by the retailer to the consumer even though these sales resulted in transport except where the Explanation to section 19 applies.
If this practice is in accordance with law when there is no change in duty we cannot see how the excisable article which had been subjected to duty once will be liable to further duty equal to the difference when there is increase in the rate, (except of course where the Explanation to section 19 applies).
We see nothing in section 10 which lays down that every time there is transport, duty must be paid even though the duty has already been paid when the first transport of an excisable article takes place.
What section 10 prohibits is the transport of excisable article unless the duty has been paid thereon.
Once the duty has been paid the prohibition under section 10 no longer applies, unless the case is covered by the Expla.
nation to section 19.
However wide may be the definition of " transport " what has to be seen is whether the prohibition under section 10 is to apply even to those excisable articles on which duty has been paid.
On a plain reading of section 10, the prohibition under that section cannot apply to transport of excisable articles on which duty has been paid.
Section 19, which is the charging section, provides for levying of duty on transport in accordance with the provisions of section 10.
This brings us back to section 10 and the question again is whether the prohibition having been removed by payment of duty once, there is anything in section 10 which 405 requires that the duty should be paid again for transporting the goods on which duty has been paid.
As we read section 10 we find nothing in it which requires that duty should be paid again for transport once the duty has been paid and the prohibition removed subject always to the Explanation to section 19.
Under that Explanation if there are different duties in different regions and the excisable article which has paid duty of one region is removed to another region where the duty is different the excess will have to be paid in order that prohibition of transport in that region may be removed.
But apart from the cases covered by the Explanation we can see no justification for reading section 10 as giving power to impose duty on the same excisable article again and again as it moves in the course of trade from, say, the bonded warehouse to the wholesaler and from the wholesaler to the retailer and from the retailer to the consumer.
Plainly, therefore, once the duty has been paid and the prohibition under section 10 is removed the transport of the duty paid excisable article can take place free from any further imposition, except where it is transported to a region where the duty is different from the region where the duty is paid.
Nor do we find any power in the State Government to impose a duty at every movement during the course of trade in the words of section 19.
All that section 19 empowers the State Government to do is to fix the rate of duty on transport in accordance with section 10.
There is no delegation to the State Government anywhere in the Act of the power to impose duty from stage to stage during the movement of excisable articles in the course of trade.
It is true that the legislature has the power if it so chooses, to levy duty on every movement; but as we read the three provisions on which reliance has been placed we do not find any exercise of that power by the legislature.
Nor do we find any delegation by the legislature of any such power to the State Government.
The view therefore taken by the Division Bench that once the duty mentioned in section 19 has been paid the prohibition con tained in section 10 must disappear, (subject always to the Explanation to s, 19), and that there is nothing in 52 406 s.19 delegating any power to the State Government of levying excise duty more than once and at more than one point during the progress of the excisable goods from the time they leave the bonded warehouse till the time they reach the consumer is in our opinion correct.
It is not in dispute in this case that the Explanation to section 19 does not apply.
Turning now to the first proviso '.to section 19 A, it may be noticed that that section deals with the manner of levying duty.
But the first proviso goes further and lays down that where the duty is levied on issue from a bonded warehouse it will be at the rate in force on the date of issue.
We agree with the Division Bench that this proviso has no logical connection with section 19 A and would more properly be a proviso to section 19.
It has nothing to do with the manner of payment but is concerned with the liability to pay at the rate prevalent on the date of issue from the bonded warehouse.
If that is so, the quantum of tax is once for all determined by this proviso subject always to the Explanation to section 19 and cannot be increased thereafter.
Reference in this connection was made to section 15 A also.
But that section seems to have been inserted as a measure of abundant caution and does not appear to go further than section 10.
It seems to determine the time and manner of payment in cases where excisable articles are kept in a distillery or brewery or warehouse or other place of storage established or licensed under the Act where duty may not have been paid before such storage.
It is not the charging section and cannot be read to go beyond section 19 which is the charging section.
We are therefore of opinion that on this ground also no additional duty could be charged from the respondent in this case as the Explanation to section 19 has admittedly no application here.
The appeal therefore fails and is hereby dismissed with costs.
Appeal dismissed.
| A Hindu governed by the Mitakshara School of Hindu Law died leaving three widows as his legal heirs.
The widows took the estate as joint tenants and did not exercise their right to separate possession and enjoyment.
The main income was from dividends and from immovable property.
The latter was held under section 9(3) of the Income tax Act not to be assessable as income 514 of an association of persons.
The question was whether the three widows could be assessed as an association of persons in respect of the rest of the income: Held, that the three widows did not have the status of an association of persons within the meaning of section 3 of the Income tax Act.
An association of persons is one in which two or more persons join in a common purpose or common action and, for purposes of the income tax law, one of its objects must be to produce income, profits or gains.
It must be a combination of persons formed for the promotion of a joint enterprise for producing income.
In the present case except for receiving the dividends and interest jointly the widows had done no act which helped to produce the income.
In Ye : B. N. Elias, , Commissioner of Income tax, Bombay vs Laxmidas Devidas, and Re. Dwayakanath Harishchandra, , approved.
|
tition (Crl) No. 1792 of 1981.
(Under article 32 of the Constitution of India) V.M. Tarkunde, G. C. Patel and K. Prasad for the Petitioner.
M. K. Banerjee, Additional Solicitter General and Miss A, Subhashini for the Respondent.
984 The Judgment of the Court was delivered by SEN, J.
This petition under article 32 of the Constitution raises a question of some nicety.
The question is whether the 'right to be defended by a legal practitioner of his choice ' under article 22(1) of the Constitution comprehends the right of an accused to be supplied with a lawyer by the State.
The petitioner is an advocate on record practising in this Court and has been arraigned along with four others to stand his trial for the commission of an alleged offence of murder in furtherance of criminal conspiracy punishable under section 302 read section 120 B of the Indian Penal Penal Code in what is known as the Samastipur Bomb Blast case in the Court of the Additional Sessions Judge, Delhi.
Bawa Gurcharan Singh engaged by the main accused Santoshanand and Sudevanand as senior counsel was also appearing for the petitioner as a matter of professional courtesy to a fellow member of the Bar.
The evidence of the first approver P.W. 1 Madan Mohan Srivastava @ Visheshwaranand was concluded on March 25, 1981 and he was cross examined by Bawa Gurcharan Singh on behalf of the main accused as well as the petitioner, and by P. P. Grover appearing on behalf of the other two accused Arteshanand and Gopalji.
On the same day, Bawa Gurcharan Singh withdrew his appearance for the petitioner and thereafter the petitioner himself has been conducting the case.
The recording of the evidence of the second approver P.W. 2 Jaldhar Dass @ Vikram has already commenced.
The petitioner contends that although he is not an indigent person he as a struggling lawyer has neither the capacity nor the means to engage a competent lawyer for his defence.
He com plains that under the rules framed by the Delhi High Court, a princely sum of Rs. 24 per day is fixed as fee payable to a lawyer a appearing in the Court of Sessions as amicus curiae, and as the sessions trial in which he is involved lasts three days on an average in a week, no lawyer of sufficient standing will find it possible to appear as counsel for his defence.
He alleges that the prosecution is being conducted by a special public prosecutor assisted by a galaxy of lawyers specially engaged by the State and large amounts are being paid as their fees.
As a matter of processual fair play it is incumbent on the State to provide him with a counsel for his defence on a basis of equal opportunity as guaranteed under Art, 985 39A of the Constitution.
Upon this basis, he seeks the issuance of a writ in the nature of Mandamus and other appropriate writs, directions and orders to ordain the Union of India to give financial assistance to him to engage a counsel of his choice on a scale equivalent to, or commensurate with, the fees that are being paid to the counsel appearing for the State.
During the pendency of the writ petition, the Court by its interim order dated June 4, 1981 having regard to the fact that the petitioner is a practising lawyer and is involved in a long drawn sessions trial, directed that the State should undertake to help him in the matter of his defence so far as the payment of fees to his counsel to defend him in the trial was concerned.
It directed that the petitioner will inform the Court of Sessions the name of the counsel who would be appearing for him with a direction that the State would make necessary arrangement to pay the amount required to be expended on his fees subject to final accounting to be made depending on the result of the writ petition.
By the subsequent order dated August 18, 1981 the Court in modification of the earlier order quantified that a sum of Rs. 500 per day will be paid by the State to the senior counsel and Rs. 250 per day to the junior for representing the petitioner.
At the hearing it was urged by learned counsel for the petitioner that suitable directions be made in conformity with the interim orders passed by the Court for payment of a reasonable amount as fees to the amicus curiae who appears for the petitioner at the trial.
The learned Additional Solicitor General on the other hand takes serious exception to the directions made by the Court and contends that the petitioner has no legal right to be supplied with a lawyer by the State nor is there any corresponding obligation cast on the State to give financial assistance to him to engage a counsel of his choice.
According to him, the remedy of the petitioner is to make an application before the learned Additional Sessions Judge under sub section
(1) section 304 of the Code of Criminal Procedure, 1973 to provide him with free legal aid and it is for the learned Additional Sessions Judge to be satisfied on material placed before him that the petitioner is not possessed of sufficient means to engage a counsel.
The submission is that it is upon the fulfillment of this condition that a direction can be made to provide a counsel for his defence at the expense of the State.
He accordingly contends that no petition under article 32 of the Constitution is maintainable.
986 The petition is virtually for the enforcement of the Directive Principle of State Policy enshrined in article 39A of the Constitution which reads: "39A. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
" There can be no doubt that the petitioner is not entitled to the grant of a writ of Mandamus for the enforcement of the Directive Principle enshrined in article 39A by ordaining the Union of India to give financial assistance to him to engage a counsel of his choice on a scale equivalent to, or commensurate with, the fees that are being paid to the counsel appearing for the State.
As is clear from the terms of article 39A, the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid.
The remedy of the petitioner, if any, lies by way of making an application before the learned Additional Sessions Judge under sub section
(1) of section 304 of the Code of Criminal Procedure, 1973, and not by a petition under article 32 of the Constitution.
The traditional view expressed by this Court on the interpretation of article 22(1) of the Constitution in Janardan Reddy & Ors.
vs The State of Hyderabad & Ors.(1) that 'the right to be defended by a legal practitioner of his choice ' could only mean a right of the accused to have the opportunity to engage a lawyer and does not guarantee an absolute right to be supplied with a lawyer by the State, has now undergone a change by the introduction of the Directive Principle of State Policy embodied in article 39A by the Constitution (Forty Second) Amendment Act, 1976, and the enactment of sub section
(1) of section 304 of the Code of Criminal Procedure.
It was in this case that the Court observed that the American rule enunciated in the case of Powell.
vs Aalbama(2) founded on the doc trine of 'due process ' was not applicable to India and that under article 22(1) there was no absolute right to an accused to be supplied 987 with a lawyer by the State.
There has been a definite shift in the stance adopted by the Court by its decisions in Maneka Gandhi vs Union of India(1), E. P. Royappa vs State of Tamil Nudu(2) R.D. Shetty vs The International Airport Authority of India & Ors.(3) In Maneka Gandhi 's case, supra, the Court observed that the requirement of compliance with natural justice was implicit in article 21 and that if any penal law did not lay down the requirement of hearing before effecting him, that requirement would be implied by the Court so that the procedure prescribed by law would be reasonable and not arbitrary procedure.
The procedure which was 'arbitrary ' oppressive or fanciful, was no 'procedure ' at all.
A procedure which was unreasonable could not be said to be in conformity with article 14 because the concept of reasonableness permeated that Article and arbitrariness is the antithesis of equality guaranteed under article 14.
It is difficult to hold in view of these decisions that the substance of the American doctrine of 'due process ' has not still been infused into the conservative text of Art 21.
Although in the earlier decisions the Court paid scant regard to the Directives on the ground that the Courts had little to do with them since they were not justiciable or enforceable, like the Fundamental Rights, the duty of the Court in relation to the Directives came to be emphasized in the later decisions which reached its culmination in Keshavanand Bharti vs Union of India(4) laying down certain broad propositions.
One of these is that there is no disharmony between the Directives and the Fundamental Rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare State, which is envisaged in the Preamble.
The Courts therefore have a responsibility in so interpreting the Constitution as to ensure implementation of the Directives and to harmonize the social objective Underlying the Directives with the individual rights.
Primarily, the mandate in article 39A is addressed to the Legislature and the Executive but insofar as the Courts of Justice can indulge in some judicial law making within the interstices of the Constitution or any statute before them for construction, the Courts too are bound by this mandate.
988 Read with article 21, the Directive Principle in article 39A has been taken cognizance of by the Court in M. H. Hoskot vs The State of Maharashtra(1), State of Haryana vs Darshana Devi & Ors.(2) and Hussainara Khatoon & Ors.
vs Home Secretary, State of Bihar, Patna(3) to lead to certain guidelines in the administration of justice.
One of these is that when the accused is unable to engage a counsel owing to poverty or similar circumstances, the trial would be vitiated unless the State offers free legal aid for his defence to engage a lawyer whose engagement the accused does not object.
This more or less echoes the moving words of Sutherland, J. in Powell 's case, (supra). 'The right to the aid of counsel ', wrote Sutherland, J., 'is of a fundamental character '.
In this country (i e. United States of America) 'historically and in practice ', a hearing has always included 'the right to the aid of counsel when desired and provided by the party asserting the right '.
Sutherland, J. went on to indicate why this should be so: "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and sometimes no skill in the science of law.
If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad.
He is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one.
He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." But he did not stop there.
If the accused were unable to get counsel, even though opportunity were offered, then the 'due process ' clause in the Fourteenth Amendment required the trial court 'to make 989 effective appointment of counsel '.
This was new law, and so it was natural that the Court would set careful limits for the new principle; "Whether this would be so in other criminal prosecutions, or under other circumstances, we need not deter mine.
All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendent is unable to employ counsel, and is incapable adequately of making his own defence because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the Court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to perclude the giving of effective aid in the preparation and trial of the case," It must be stated that Powell 's case involved a capital punishment where the accused was unable to employ counsel due to his indigence and therefore was incapable adequately of making his own defence, and according to the Supreme Court, the failure of the trial court to give reasonable time and opportunity to secure counsel was a clear denial of due process.
There was a clear departure by the Supreme Court of the United States in Betts vs Brady(1) where the Court made an abrupt break and held that the 'due process ' clause of the Fourteenth Amendment did not impose upon the States, as the Sixth Amendment imposed upon the Federal Government, an absolute requirement to appoint counsel for all indigent accused in criminal cases.
It required the State to provide a counsel only where the the particular circumstance of a case indicated that the absence of counsel would result in a trial lacking 'fundamental fairness '.
Ever since the decision in Bett 's case, the problem of the constitutional right of an accused in a State Court became a continuing source of controversy until it was set at rest in the celebrated case of Guideon vs Wainright.(2) Under the rule laid down in Bett 's case, the Court had to consider the 'special circumstances ' in each case to determine whether the denial of counsel had amounted to a constitutional 990 defect in the trial and in an era of constantly expanding federal restrictions on State criminal processes, it was hardly startling that the Court in Gideon 's case explicitly rejected the rule laid down in Bett 's case and held that 'Sixth Amendment 's (unqualified) guarantee of counsel for all indigent accused ' was a "fundamental right made obligatory upon the State by the Fourteenth Amendment".
We are however not in the United States of America and therefore not strictly governed by the 'due process ' clause in the Fourteenth Amendment.
We therefore need not dilate on the subject any further.
In recent years, it has increasingly been realized that there cannot be any real equality in criminal cases unless the accused gets a fair trial of defending himself against the charge laid down and unless he has competent professional assistance.
The Law Commission in its Fourteenth Report Volume I on the subject "Reform of Judicial Administration" made certain recommendations for State aid.
One of those was that "representation by a lawyer should be made available at Government expense to accused persons without means in all cases tried by a Court of Sessions".
This recommendation has now been codified in sub section (1) of section 304 of the Code of Criminal Procedure which reads .
Legal aid to accused at state expense in certain cases: (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
" The Law Commission in its Forty Eighth Report suggested for making provision for free legal assistance by the State for all accused who are undefended by a lawyer for want of means.
This recommendation still remains to be implemented.
Many a time, it may be difficult for the accused to find sufficient means to engage a lawyer of competence.
In such a case, the Court possesses the power to grant free legal aid if the interests of justice so require.
The remedy of the petitioner therefore is to make an application before the Additional Sessions Judge making out a case for the grant of free 991 legal aid and if the learned Additional Sessions Judge is satisfied that the requirements of sub section
(1) of section 304 of the Code are fulfilled, he may make necessary directions in that behalf.
While fixing the fee of counsel appearing for the petitioner, the learned Additional Sessions Judge shall fix the amount of fee having regard to the interim orders passed by this Court.
But if he feels that he is bound by the constraints of the rules framed by the Delhi High Court prescribing scales of remuneration for empanelled lawyers, he shall make a reference to the High Court for suitable directions.
On such reference being made, the High Court shall consider in its undoubted jurisdiction under article 227 (3) of the Constitution whether the scales of remuneration prescribed for empanelled lawyers appearing in sessions trials are not grossly insufficient and call for a revision.
That however is a matter which clearly rests with the High Court and we wish to say no more.
We only wish to impress that the contention advanced before us has been that the existing rules are wholly antiquated and do not take into account the realities of the situation.
It was urged that under the present scales of fee as prescribed by the Delhi High Court for empanelled lawyers appearing in sessions trials, it is impossible for a person facing a sessions trial on a capital charge to get competent professional assistance.
Surely, the High Court has ample power to fix a reasonable amount as fee payable to counsel appearing for the petitioner In the facts and circumstances of the present case.
We direct that in case the amount so fixed is lower than the scales of fee fixed by this Court by its interim orders, the excess amount paid to the petitioner in terms thereof shall not be recoverable.
With these observations, the writ petition must fail and is dismissed with no order as to costs.
H.L.C. Petition dismissed.
| The Committee of Management of a non Government aided school, by its resolution dated April 19,1981 appointed the appellant as Principal of the college run by it.
The order was communicated to the appellant on April 27 198} and he assumed charge on May 1, 1981.
In the meanwhile on April 7, 1981 the Secretary to the Government of U. P. Education Department communicated by radiogram to the various authorities the order of the Government stopping all fresh selections and appointments of principals in all non Government aided secondary schools.
A copy of it was sent to the college by the District Inspector of Schools on May 1,1981.
Though the appellant continued to function as Principal of the college the Committee of Management stopped payment of his salary on the ground that his appointment was not valid after the issue of the Government order dated April 7,1981.
The appellant filed a writ petition under Article 226 of the Constitution praying for a writ of mandamus directing the Committees of Management of the College not to interfere with the discharge of his duties as Principal and also to pay him his salary.
T he High Court, dismissing his petition, held that the appellant 's appointment as Principal of the college was invalid in that the Committee of Management had no power to set up the Selection Committee nor had the Selection Committee the power to make any appointment.
In appeal to this Court it was contended on behalf of the appellant that on the date of his appointment as Principal the Committee of Management had the power to make the appointment notwithstanding the fact that the Government had withdrawn that power.
Dismissing the appeal, ^ HELD: The order of the Government became effective the moment it was issued.
The effect of that order was that the Selection Committee had no right to select the appellant nor did the Committee of Management have any power to make the appointment.
[1979 A B] 972 The Board constituted under the Act had the power to make regulations and this power could be exercised only with the previous sanction of the State Government.
Section 9(4) specifically confers power on the State Government without making any reference to the Board to make, modify or rescind any regulation.
This power comprehend the power to stop all appointments for the time being.
Exercising power under this section the State Government issued orders stopping all fresh selections and appointments of Principals in all non Government aided schools.
The effect of the order was to rescind the regulation conferring power on the Committee of Management to make appointments of Principals.
[978 B G] There was no merit in the submission that the letter dated May 1, 1981 had not been received by the Management.
[979 D] If the order was valid and power to make the appointment was with drawn or suspended, it would not be open to the Selection Committee to select the appellant an issue the order of appointment to him.
The appointment in that event would be by a body not authorised to make it and so it was in effective though not invalid.
[979 E F] Section 16E (10) which provides that where the competent authority was satisfied that a person had been appointed as Principal in contravention of the provisions of the Act, it may cancel such appointment after affording him an opportunity of being heard has no application to the present case because power of appointment conferred by the regulation on the Committee of Management was withdrawn or suspended and therefore the Committee had no power to make the appointment.
1980 E Gl
|
Appeal No. 372 of 1979.
From the Judgement and Order dated 25.5.1978 of the Delhi High Court in Civil Writ Petition No. 1494 of 1973.
Dr. N.M. Ghatate and D.N. Mishra (for J.B.D. & Co.) for the Appellant.
V.C. Mahajan, C. Ramesh and C.V. Subba Rao for the Respon dents.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
The appeal is preferred against the judgment of the Delhi High Court allowing the writ petition filed by the second respondent M/s Ferro Alloys Corporation Ltd. The writ petition was directed against the judgment and order of the Government of India, Ministry of Finance, dated September 19, 1973 in an appeal preferred under paragraph (9) of the Tax Credit Certificate (Exports) Scheme, 1965.
The second respondent is the manufacturer cxportcr of ferro manganese and chrome concentrates.
During the year 1964 65 (from February 28, 1965 to June 5, 1965) the second respondent entered into a number of agreements with the foreign buyers for the sale of the aforesaid two commodities.
The export was routed through the M. M.T.C. the appellant herein, to bring it within the system of private barter introduced by the Government of India with a view to encourage exports.
It would be appropriate to notice the essential features of the barter system in vogue during the relevant period at this stage.
The main objective behind the system was to provide a mechanism which would result in increased export of particular commodities which were ordinarily difficult to sell abroad and to destinations, in which the selling countries were not able to _Pet a foot hold.
This objective was sought to be achieved by linking them to imports of an equivalent or 15 lesser value of essential commodities, which, in any event, the country had to import.
All barter proposals were scrutinized in the first instance by the M.M.T.C. and then by the Barter Committee.
The essential stipulations were: "(i) All imports made under barter deals were subject to such sale price and distribution control as were laid down by the Government and (ii)All barter deals were to be routed through S.T.C./ M.M.T.C. unless otherwise decided upon by barter committee." As and when approval was given by the Government of India, a letter of indent used to be issued by the M.M.T.C. to the bartering firm or the local supplier, as the case may be.
(In this case, there was no bartering firm.
Ferro Alloys was directly sending the goods).
As far as purchase and sale contracts were concerned, the M.M.T.C. insisted that there should be one contract of sale between the local supplier and the M.M.T.C. and another contract of sale by the M.M.T.C. to the foreign buyer on principal to principal basis.
The foreign exchange so generated under this arrangement was the basis for issue of import licences, which were issued in the name of M.M.T.C. with the letter of authority in favour of the bartering firm or the local supplier, as the case may be.
This enabled the bartering firm/local supplier to import the approved commodity under its approval barter and thus he in a position to recoup the losses incurred by it in arranging the supply or in supplying, as the case may be of export commodities to the M.M.T.C.
It was agreed and understood that the ferro alloys should intimate the foreign buyer to enter into a direct contract with the M.M.T.C. treating it as the seller.
It was also agreed that G. R.I. Form prescribed by the Reserve Bank of India under the Rules framed under the Foreign Exchange Regulation Act (for accounting the receipt of foreign exchange) was to be signed by the M.M.T.C. showing it as the exporter and seller vis a vis the foreign buyer.
Letters of credit was also to be opened in the name of M.M.T.C.? which was to be assigned to the Feffo alloys.
This was done with a view to enable the Ferro alloys to receive the payment directly for the goods supplied to M.M.T.C.
The Shipping Bill, which is a document prescribed under the Customs Act, was also to be made out 16 showing M.M.T.C. as the exporter.
The transactions were gone through.
Dispute arose between the parties when the question of issuance of a tax credit certificate under Section 280 (Z) (C) of the Income Tax Act arose.
Sub section (1) of section 280 (Z) (C), as in force at the relevant time, read as follows "Tax Credit Certificate in relation to exports (1) Subjects to the provisions of this section.
a person who exports any goods or merchandise out of India after the 28th day of February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947 (7 of 1947), and the rules made thereunder, shall be granted a tax credit certificate for an amount calculated at a rate not exceeding fifteen per cent on the amount of such sale proceeds.
" A reading of the sub section shows that the tax Credit Certificate is issued to the person "who exports any goods or merchandise out of India after the 28th day of February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947 and the Rules made thereunder.
" Question, therefore, arose who is the person, in the case of this transaction, who can be said to have exported the goods and received the sale proceeds in the shape of foreign exchange.
The matter was taken in appeal before the Government of India under paragraph (9) of the Tax Credit Certificate Exports Scheme, 1965.
On an elaborate consideration of the bartering scheme and the several documents which came into existence in connection with the transactions between the parties, the Government of India held that the M.M.T.C. must be held to be the exporter for the purpose of Section.280(Z)(C) and not the Ferro alloys.
This order was challenged by Ferro alloys by way of a writ petition in the High Court.
The High Court allowed the writ petition on the following reasoning: "While the terms of the scheme of barter and the 17 arrangement between the exporter and the Corporation visualizes in theory that the contracts to be entered into between the exporter and the foreign buyers would be duly substituted by principal to principal contracts between the foreign buyer and the Corporation as well as the Corporation and the Indian supplier of the goods, so that the Corporation virtually gets substituted for the exporter for all external appearance, in actual practice, however, it appears that the substituted contracts are rarely executed and were, in any event, not executed in the present case at either of the two ends although the letter of credits were opened by the foreign buyers in favour of the Corpo ration and the shipments were made in some cases in the name of the Corporation on account of the exporter while in the others in the name of the exporter on account of the Corporation.
No consideration, however, passed between the Corporation and the exporter on account of any sale of the commodity to the Corporation.
The letters of credit being transferable are endorsed immediately on receipt in favour of the exporter by the corporation and the sale proceeds are directly realized by the exporters through their bankers and the commission of the Corporation agreed to is paid by the exporter to the Corporation.
The declaration under Section 12 of the Foreign Exchange (Regulations) Act in Form GR I contains the name of the Corporation as the exporter.
But the form lists the name of the exporters ' banker as the banker concerned.
" In other words, the High Court 's approach was that while for external appearances, the corporation was given out as the exporters, Ferro alloys was the real exporter for all purposes and it was Ferro alloys which earned and received the foreign exchange.
M.M.T.C. got only its commission of 2% and nothing more.
Alternatively held the High Court even if it is held that the documents executed between the parties had the legal effect of transferring title in the goods to and in favour of the Corporation, even so Ferro alloys must be deemed to be 18 the real exporter for the purposes of Section 280(Z)(C), having regard to the objective underlying the said section viz., providing an additional incentive to the real exporter.
The correctness of the said view is questioned in this appeal.
Though the second respondent, Ferro alloys Corporation Ltd., has been served, no one appears on its behalf.
We are, therefore, obliged to dispose of this appeal only with the assistance of the counsel for the M.M.T.C.
May be that there are factors in this case supporting the contentions of both the parties.
In such a case, we have to decide the question on a totality of relevant factors applying the test of predominance.
It is true that there was initially an agreement or contract between Ferro alloys and the foreign buyer for export of manganese and other goods but that was substituted and superseded by the two contracts entered into with respect to the very same goods.
One contract was between Ferro alloys and M.M.T.C. for sale of the said goods to and in favour of M.M.T.C. and the other was a sale by M.M.T.C. to the foreign buyer.
It is significant to notice that these contracts were on principal to principal basis.
Apart from this fact all the statutory documents viz., G. R.I. Form prescribed under the Foreign Exchange Regulation Act, 1947 and the shipping bill prescribed by the Customs Act were made out in the name of M.M.T.C. showing it as the exporter.
We have perused the Form G.R.I.Column 1 pertains to exporter 'sname.
Against this column is shown Minerals and Metals Trading Corporation of India Limited '.
The Form contains a declaration to be signed by the exporter declaring that he is the seller/consignor of goods and a further undertaking that they will deliver to the Bank mentioned in the said Form, the foreign exchange resulting from the export of the goods mentioned therein.
It was signed by the M.M.T.C. Letters of credit were opened in the name of M.M.T.C.
All this was done as required by the system of barter.
Ferro alloys availed of this system presumably because it was to its advantage.
In fact, it appears that it was not able to sell the said goods otherwise.
Be that as it may, whether by choice or for lack of alternative, it chose to route its goods through M.M.T.C.
Is it open to the Ferro alloys now to say that all this must be ignored in the name of "external appearances" and it must be treated as the real exporter for the purposes of Section 280(Z)(C).
It wants to be the gainer in both the events.
A case of "heads I win, tails you lose.
" As against the above circumstances, the factors appearing in favour of the 19 Ferro alloys are the following: The contract between the parties spoke of "commission" of two per cent payable to the M.M.T.C. Use of the expression "commission", it is pointed out, is indicative of the fact that M. M.T.C. was only an agent.
For the M.M.T.C., it is explained that it was one way of describing the difference between the export price and the sale price.
It is submitted that the said feature must be understood in the context of the totality of the scheme, which was not a mere commercial scheme but a scheme conceived in the interest of foreign trade, economy and balance of payments.
Ferro alloys also relied upon a certificate given by the foreign buyer stating that the goods in question were sold to it by Ferro alloys.
But as rightly pointed out by the Government of India, this certificate was obtained long after the relevant transactions were over and evidently to buttress its case with respect to the tax credit certificate.
Not much significance can be attached to it, also because it is in the teeth of the contracts signed by the foreign buyer with the M.M.T.C. with respect to the very same It is also pointed out that some of the documents required to be executed according to (he system of barter were not actually executed between the parties.
May be so.
The fact yet remains that the entire export was done through M.M.T.C. in accordance with the system of barter.
There is no half way house; either it is no '? barter system or it is.
This is an undisputed fact as are the several statutory documents made out in the name of M.M.T.C., referred to here in before.
On a consideration of all the relevant factors and circumstances, we are of the opinion that the M.M.T.C. must be held to be the exporter for the purpose of Section 280(Z)(C).
The entire system of barter and the several documents executed in that behalf including those required by statutory provisions cannot be explained away as mere "external appearances".
The Ferro alloys cannot come to M.M.T.C. when it is profitable to it and disavow it when it is not profitable to it.
It cannot have it both ways.
The title to goods passed to M.M.T.C. by virtue of the several documents executed between the parties.
Indeed, that was the fulcrum of the entire scheme of Barter.
We are also not convinced with the alternative reasoning of the High Court that even if it is held that the title to the goods passed to M.M.T.C., even so Ferro alloys must be held to be the real exporter, in view of the objective underlying Section 280(Z)(C).
If M.M.T. C. has acquired the title to the goods and is the exporter for all other purposes it equally the exporter 20 for the purposes Section 280(Z)(C).
There can he no dichotomy of the nature propounded by the High Court.
We are, therefore of the opinion that the High Court was not right in holding to the contrary.
The appeal is allowed.
The judgment and order of the High Court of Delhi is set aside and the order of the Government of India dated September 19, 1973 is restored.
The writ petition filed by the second respondent in the Delhi High Court is dismissed.
No costs.
G. N. Appeal allowed.
| In respect of an ancient temple situate in the State of Bihar, disputes arose in I897 between the high priest and the " pandas " regarding the control of the temple which ultimately led to a suit being filed under section 539 (now section 92) Of the Code of Civil Procedure, in the Court of the District judge of Burdwan and a decree was passed by the Additional District judge, under which a scheme was framed for the proper management of the temple.
The decree was confirmed by the Calcutta High Court and the scheme itself was later modified from time to time by the said High Court.
After the coming into force of the Bihar Hindu Religious Trusts Act, 1950, the President of the Bihar State Board of Religious Trusts, acting under section 59 of the Act, served a notice on the respondent, who had been appointed Sardar Panda for the temple under the scheme, asking him to furnish a statement in respect of the temple and the properties appertaining thereto.
The respondent made an application under article 226 of the Constitution to the High Court of Patna challenging the validity of the action taken against him on the grounds (1) that the Bihar 625 Hindu Religious Trusts Act, 1950, was ultra vires the Bihar Legislature, (2) that the Bihar Legislature did not have legislative competence to deal with the temple in question as some of the properties appertaining to the temple were situate outside Bihar, and (3) that, in any case, the Act did not apply to the temple by reason of the fact that the temple and its properties were administered under a scheme made by the Court of the District Judge of Burdwan and approved by the Calcutta High Court both of which were situate outside the territorial limits of Bihar, as otherwise the Act by some of its provisions would seek to interfere with the jurisdiction of courts which are outside Bihar and thereby get extra territorial operation.
Held: (1) that the Bihar Hindu Religious Trusts Act, 1950, is intra vires the Bihar State Legislature Mahant Moti Das vs section P. Sahi, [1959] SUPP.
2 S.C.R. 563 followed.
(2) that it is competent to the Bihar Legislature to legislate in respect of religious trusts situate in Bihar though some of the properties belonging to the trust may be outside Bihar; State of Bihay vs Charusila Dasi, [1959] SUPP.
2 S.C.R. 601 followed.
(3) that the provision of law in sub section
(5) of section 4 Of the Act by which section 92 Of the Code of Civil Procedure shall not apply to any religious trust in the State of Bihar, is valid; and (4) that as under section 4(5) Of the Act religious trusts in Bihar are taken out of the purview of section 92 Of the Code of Civil Procedure, the jurisdiction of the District judge of Burdwan or the Calcutta High Court to deal with the temple in question under section 92 comes to an end; consequently the Act and its several provisions do not suffer from the vice of extra territoriality and the Act applies to the temple in question and the properties appertaining thereto.
|
minal Appeal No. 119 of 1966.
Appeal by special leave from the judgment and order dated ' March 15, 1966 of the Calcutta High Court in Matter No. 375 of 1965.
B. Sen, P.K. Chatterjee and P.K. Chakravarti, for the appellant.
section V. Gupte and G.S. Chatterjee, for the Calcutta High Court.
The Judgment of the Court was delivered by Shah, J.
This appeal is filed with special leave against the order of the High Court of Calcutta declaring that a speech broadcast on the night of November 25, 1965, on the Calcutta Station of the All India Radio by Mr. P.C. Sen, then Chief Minister of West Bengal, was calculated to obstruct the course of justice and 651 on that account amounted to contempt of court and the conduct of Mr. Sen merited disapproval.
On August 23, 1965, the State of West Bengal issued, in exercise of power under sub rr.
(2) and (3) of r. 125 of the: Defence of india Rules, the West Bengal Channa Sweets Control Order, 1965, placing restrictions upon the right of persons carrying on business in milk products and especially dealers in sweetmeat made out of Channa.
In a petition moved by Nani Gopal Paul the High Court of Calcutta declared by order dated Novera bet 16, 1965, that the West Bengal Channa Sweets Control Order, 1965, is an "unreasonable piece of delegated legislation made in arbitrary exercise of power under r. 125 without any justification in law and regardless of the purpose for which such order may be made", and issued an injunction against the State of West Bengal from enforcing that order.
The State of West Bengal thereafter issued another order with immediate effect on November 18, 1965, called the "West Bengal ' Milk Product Control Order, 1965".
On November 22, 1965, Messrs Ramlal Ghosh and Grandsons challenged by Petition No. 369 of 1965 the validity of the Order issued on November 18, 1965, and prayed for a writ declaring the Order "null and void" and for an injunction restraining the State of West Bengal and the Secretary, Department of Animal Husbandry and Veterinary Services from giving effect to the said Order.
Rule was issued on the Petition by Banerjee, J., and was duly served on the State of West Bengal, on November 23, 1965.
On the night of November 25, 1965, the Chief Minister of West Bengal broadcast a speech on the All India Radio, Calcutta Station, seeking to justify the propriety of the Control Order.
In the course of that broadcast speech the Chief Minister made several comments on controversial matters which were pending for adjudication before the court At the hearing of the rule on November 29, 1965, counsel 1or.
Ramlal Ghosh and Grandsons brought to the notice of the Court a newspaper report of the speech broadcast by the Chief Minister Rule was issued by Banerjee, J., requiring the Chief Minister to show cause why he should not be committed for contempt of court on the grounds ( 1 ) that the speech was likely to prejudice the Court and the public against the cause of the petitioners, and ' may compel or induce them to discontinue the action, (2) that it was likely to have "the pernicious con,sequence" of prejudicing the minds of the public against the petitioners, (3) and that it was likely to have the effect of misrepresenting a piece of illegal legislation before the Court had an opportunity to decide the matter, and was on that account calculated to deter other persons havingsimilar causes from approaching the Court for relief.
652 Instead of making a frank statement before the Court, the Chief Minister was apparently advised to adopt grossly technical pleas Counsel informed the Court that the Chief Minister did "not like to use any affidavit showing cause".
Evidence was then led before the Court to prove that the offending speech was in fact broadcast by the Chief Minister on the All India Radio, Calcutta Station.
After evidence was recorded in the Court about the speech broadcast by the Chief Minister he somewhat belatedly filed an affidavit on March 4, 1966, admitting that he had delivered the speech on the All India Radio on the night of November 25, 1965, the contents of which were proved by the evidence of the Programme Director.
It was also admitted that the Chief Minister had knowledge of the filing of the petition when he broadcast the speech and of the rule served upon the State Government.
By the affidavit it was attempted to justify the speech, on the plea that the Chief Minister came to learn that certain persons had started publicly propagating the view that far from achieving the objects, the Order will not only reduce the supply of fluid milk in the area, but also displace numerous persons from their normal avocation resulting in unemployment for many that the object of the propaganda was to criticise and ridicule the policy of the State Government in promulgating the Order, that the propaganda had misled certain sections of the people about the object, purpose and nature of the Order and the consequences thereof, particularly with regard to the position of supply of milk and the question of continued employment of the persons working in the sweetmeat shops in the area, that taking advantage of the situation, attempts were made to commence a political agitation against the State Government for having promulgated the Order, and in the circumstances and particularly with a view to preventing widespread agitation in connection with the Order, it was thought that it was the duty of the Chief Minister of the State to explain to the people the policy underlying and the reasons for promulgating the Order, that in making the speech his sole and only intention and purpose was to "remove the confusion and allay the fears, if any, from the minds of the people with regard to the purpose nature, object and effect of the promulgation of the Order", that he had no intention, whatsoever of either showing any disrespect to the Court or interfering in any manner with the due course of the administration of justice, nor did he anticipate that his speech could have any such effect, and that by broadcasting his speech he had committed no contempt of Court nor had he any intention of doing so.
Banerjee, J., after a detailed examination of the relevant law and the speech broadcast, held that the speech broadcast amounted to contempt of Court "in the sense that it was likely to have 653 several baneful effects upon the petitioners" in Petition No. 369 of 1965, "upon their cause and upon others having a cause similar to that of the petitioners".
The learned Judge accordingly recorded that "the Chief Minister cannot wholly escape the charge of having committed contempt of Court", since "the speech was contumacious in the sense that it was likely to have baneful effects upon the petitioners" in Petition No. 369 of 1965 "their cause, and upon persons having a similar cause and as such was likely to interfere with the administration of justice by the Court.
" The learned Judge, however, observed that "the condemner Mr. Sen should be let off with an expression of disapproval of his conduct and in the hope that the sort of indiscretion will not be repeated".
In This appeal counsel for the appellant has raised four contentions in support of his argument that the High Court erred in holding that the Chief Minister by broadcasting the speech did commit contempt of Court: (1) that there is no finding by the High Court that the contempt was intentionally committed by the Chief Minister; (2) that by broadcasting the speech no real prejudice was caused either in the mind of the Judge or to the cause of the petitioners in Petition No. 369 of 1965; (3) that the speech contained no direct reference to any pending proceeding; and (4) that the Chief Minister was under a duty to make the Speech to instruct the public about the true state of affairs and to remove the misgivings arising in the public mind from agitation carried on by political parties.
The law relating to contempt of Court is well settled.
Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court: R.v.
Gray(1).
Contempt by speech or writing may be by scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard.
It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences.
Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a pro (1)[1900] at p.40.
Sup CI/69 9 654 ceeding amount to contempt.
To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt.
Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources.
The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice.
The question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice.
As observed by the Judicial Committee in Debi Prasad Sharma and Ors.
vs The King Emperor (1): " . the test applied by the .
Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law.
" If, therefore, the speech which was broadcast by the Chief Minister was calculated to interfere with the course of justice, it was liable to be declared a contempt of the Court even asuming that he had not intended thereby to interfere with the due course of justice.
There is nothing in Saibal Kumar Gupta and Ors.
vs B.K. Sen and Ant.
(2), on which counsel for the appellant relied, which supports his contention that intention of the contemner is the decisive test.
The observations of Imam, J., speaking for the majority of the Court that the appellants should be acquitted, because they "had at no time intended to interfere with the course of justice and their conduct did not tend to interfere with the course of justice", does not imply that conduct which tends to or is calculated to interfere with the administration of justice is not liable to be punished as contempt because the contemner had no intention to interfere with the course of justice.
Nor does the judgment of the Judicial Committee in Arthur Reginald Perera vs The King(a) support the contention that in determining whether conduct which is otherwise calculated to interfere with the due administration of justice will not be contempt of Court because on the part of the contemner there was no intention to interfere with the administration of justice.
In that case, a member of the House of Representatives in Ceylon, on receiving a complaint from some of the prisoners about the practice of producing followed by the Jail Authorities in the Court when an appeal filed by the prisoners was being heard, made an entry in the prison visitors ' book that "The present practice of appeals of remand prisoners being heard in their absence is not healthy.
When (1) L.R. 70I. A. 216atp.
(2) [1961] 3S.C.R. 460.
(3) 655 represented by counsel or otherwise the prisoner should be present at proceedings".
Information conveyed to Perera was inaccurate It was held by the Judicial Committee that Perera acted in good faith and in discharge of what be believed to be his public duty as a member of the legislature, and that he had not committed any contempt of Court because the words made no direct reference to the Court or to any of its Judges, or to the course of justice or to the process of the Courts.
His criticism was honest criticism on a matter of public importance and there was nothing in his conduct which came within the definition of contempt of Court.
The Chief Minister in the speech broadcast 'by him in the first instance announced what in his view is the legal effect of the Order promulgated, and then proceeded to state the reasons which persuaded the Government of West Bengal to issue the Order banning the preparation of sweetmeats with milk products Channa and Khir and expressed the hope that the residents of Calcutta will be in a position to secure larger quantities of milk.
He stated that if producers of Milk cooperate with the Government, not only will they be benefited, but they will do real good to a large number of people of the State.
He estimated the number of establishments which were in his view likely to be affected, and stated that many of the employees in their establishments who it was expected were likely to be thrown out of employment, may be employed in depots for collection of milk.
He wound up by stating "This new Order will (not) only be beneficial to the buyers and sellers of milk alone it will (also) be of help in solving the milk problem in the whole of West Bengal in the near future".
In the course of his speech he stated after referring to the difficulties encountered in procuring milk and the acute scarcity of milk prevailing in West Bengal: "According to the science relating to nutrition a person requires at least 8 Ounces of milk per day Hence to prepare any food with Milk in our West Bengal is, indeed, tantamount almost to a crime.
" He also stated: "The quantity of the milk collected under the Greater Calcutta Milk Supply Scheme has increased to 65 thousand Litres from 23 thousand Litres per day on the average.
A large number of people were getting supply of milk according to their requirements from the local Milkman (Goalas).
The quantity of milk collected from different sources in Calcutta increased to 2 lakhs and 61 thousand Litres from 2 lakhs and 12 thousand Litres.
This volume of milk supply (however) consti 656 tutes 41% of the total demand.
This supply could have been augmented much more if powder milk could be obtained in sufficient quantity from foreign countries.
But in view of foreign exchange difficulties, the Government of India curtailed the import of powder milk and as a result thereof great inconvenience was felt.
In the Greater Calcutta areas, the total demand of Milk at present is at least 6 lakhs and 30 thousand Litres" and that "The Government have considered the question of few employees of sweetmeat establishments being thrown out of employment as a result of promulgation of this new Order.
There are about seven thousand sweetmeat shops in the City of Calcutta and the number of persons employed in them is nearly 3,500.
The number of sweetmeat shops in other towns is about 1,000 and the number of persons employed in them is approximately 4,000.
Hence the total number of employees in all these sweetmeat establishments comes to about 39,000.
We should bear in mind that almost all these sweetmeat shops prepare salted (nonta) variety of edibles, such as, nimki, singara, radhaballavi, luchi dalpuri, Kachuri, jhuribhaja, alurdom, curry, dal etc.
Besides, curd is also sold by those shops which also sell kinds of sweets that do not at all require Channa or Khir (for their preparation)," that "Those workers who had until recently been bringing milk and Channa to Calcutta will be able to supply from now on milk to the Milk Collection Centres of the Government", and that "The quantity of milk collected by the Government is indeed daily on the increase.
And yesterday nearly 92 thousand 800 (sic) litres of milk were collected.
New Milk Depots will have to be opened soon in Calcutta and outside.
25 depots will shortly be opened in Calcutta and its neighbouring areas.
If the quantity of milk collected increases according to expectations, at least 1,000 additional depots will have to be opened in different places.
If in spite of an increase in the demand for other sweets a number of workers become unemployed, the Government is prepared to employ them in those depots.
This new Order will only be beneficial to the buyers and sellers of milk alone.
it will (also) be of help in solving the milk problem of the whole of West Bengal in the near future".
In their Petition No. 369 of 1965 M/s. Ramlal Ghosh and Grandsons had pleaded that the State of West Bengal and the Secretary, Department of Animal Husbandry and Veterinary 657 Services had acted mala fide and "in complete and utter disregard of the judgment and order of the High Court of Calcutta and without reading or considering the same had vindictively published" the impugned order "in anger and hot haste being recklessly careless as to the consequences thereof and without giving their mind to the comprehension and their wills to the discharge their duty towards the public" (Para 18).
They also had averted that they and other traders who carried on business only in milk products like Channa, Kheer including Khoa Kheer were facing complete ruin by reason of the total prohibition of their trade, commerce and intercourse (Para 19); that the impugned Order had not only prohibited the trade, commerce and intercourse of the petitioners but also its movement, and by the impugned Order the petitioners were not only prohibited from manufacturing but were also ordered not to supply or to trains ' port the same and to deliver the same to various customers within and outside Calcutta (Para 20); that "there was not nor there was any material before the Governor of West Bengal to form the alleged opinion and/or that the purported opinion was not reasonably formed" (Para 24); and that according to newspaper reports there were about 8,000 shops in Calcutta and 4,000 more in the neighbouring areas and those employed about 50,000 men and presuming that each employee maintained a family of 4, at least 200,000 people would be affected by the impugned Order (Para. 32).
In his speech the Chief Minister characterised the preparation of any food with milk in West Bengal as tantamount to a crime.
He also announced his version about the validity of the Order, the reasons why it was promulgated, and asserted that it was an order made bona fide and in the interests of the public, and that those who resisted it were acting contrary to the public interest.
But these questions had to be determined by the Court.
Banerjee, 1, in the judgment under appeal was of the view that the speech was likely to influence public opinion against the petitioners since the Chief Minister occupies a highly responsible position of power and authority under the Constitution, and being a person most likely to know the needs of the State there would be many who may believe in factual statements made by him.
The learned Judge observed that he was not prejudiced by the speech against the petitioners before him, since he was only "concerned with the constitutional and legal validity of the Control Order, and incidentally only with its socio economic justification", but it could ' not be said that the speech did not or could not or was not likely to prejudice the public against the cause of the petitioners.
He also observed that for the Chief Minister to have made a public appeal in support of the Order, with the knowledge of the issue of 658 the Rule Nisi calling upon the State Government and the Secretary, Department of Animal Husbandry and Veterinary Services to show cause why the Control Order should not be declared void was "improper and ill timed" and also "contumacious", for the Chief Minister had published in advance the defence to be taken against the Rule.
The criticism made by the learned Judge is not unwarranted.
The statements in a broadcast speech by an important dignitary of the State that persons who prepare sweets out of milk in the course of their business are on the version set up by him criminals, and the suggestion that the Order was issued in the interests of the public, whereas it was the contention of the petitioners that it was done "recklessly, arbitrarily and vindictively and without caring for the consequences, and without considering their duty to the public", are prima facie calculated to obstruct the administration of justice, since they are likely to create an atmosphere of prejudice against the petitioners and also to deter other persons having similar claims from approaching the Court.
There is in the speech no direct reference to the proceedings pending before the Court, but it is now common ground that the Chief Minister was aware of the filing of the petition and the issue of the rule which was served upon the Government.
Whether he was aware of all the details of the allegations made in the petition is not relevant.
If he knew that a petition was filed and the rule was served upon the Government of which he was the Chief Minister, before making any statement on a matter which was controversial it was his duty to acquaint himself with the allegations made and also to ascertain what the points in dispute were before going to on to a public broadcasting system to announce the case of the Government.
Whatever may be the motive of the Chief Minister and whatever he may have thought as a Chief Minister to be necessary in order to acquaint the public, a speech which presented the case of the Government to the public, before it was tried by the Court, and suggested that those who prepare sweetmeats out of milk were criminals and were acting in a manner contrary to the interest of the general public, was calculated to interefere with the due administration of justice.
Council for the Chief Minister contended, relying upon certain judgments of the Courts in the United Kingdom that in cases where the trial of a case is held without the aid of a jury, comments on matters in dispute in a pending proceeding or criticism of the parties thereto, will not amount to interference with the administration of justice.
Courts seek to punish acts or conduct calculated to interfere with the administration of justice; and we are unable to hold that when the trial of a case is held by a Judge 659 without the aid of a jury no contempt by interfering with the administration of justice may be committed.
The foundation of the jurisdiction lies not merely in the effect which comments on a pending proceeding may have upon the minds of the jury, but the pernicious consequences which result from the conduct of the contemner, who by vilification, or abuse of a party seeks to hold up a party to public ridicule, obloquy, censure or contempt or by comment on his case seeks to prejudge the issue pending.
We are unable to agree that where a trial of a case is held in the Court of First Instance, without a jury, or before a Court of Appeal persons so inclined are free to make comments on pending proceedings or to abuse parties thereto without any protection from the Court.
It is difficult to accept the contention that comments which are likely to interfere with the due administration of justice by holding up a party to a proceeding to ridicule or to create an atmosphere against him in the public mind against his cause when the trial is held without the aid of a jury do not amount to contempt.
If a party to the proceeding is likely to be deterred from prosecuting ,his proceeding or people who have similar cause are likely to be dissuaded from initiating proceedings, contempt of court would be committed.
It matters little whether the trial is with the aid of the jury or without the aid of jury.
In The William Thomas Shipping Co., In re.
H.W. Dhillon & Sons Ltd. vs The Company, In re.
Sir Robert Thomas and others(1) it was observed that the publication of injurious misrepresentations concerning parties to proceedings in relation to those proceedings may amount to contempt of Court, because it may cause those parties to discontinue or to compromise, and because it may deter persons with goods causes of action from coming to the Court, and was thus likely to affect the course of Justice.
But Maugham, J. observed: "There is an atmosphere in which a common law judge approaches the question of contempt somewhat different from that in which a judge who sits in this (Chancery) Division has to approach it.
The common law judge is mainly thinking of the effect of the alleged contempt on the mind of the jury and also, I think, he has to consider the effect or the possible effect of the alleged contempt in preventing witnesses from coming forward to give evidence.
In these days, at any rate, a Judge who sits in this Division is not in least likely to be prejudiced by statements published in the press as to the result of cases which are coming before him.
He has to determine the case on the (1) 660 evidence, of course, and with regard to the principles of law as he understands them; and the view of a newspaper, however intelligible conducted it may be, cannot possibly affect his mind.
Accordingly, a Judge in the Chancery Division starts on the footing that only in the rarest possible case is it likely that the publication by a newspaper of such a statement as I have here to consider will affect the course of justice in the sense of influencing, altering or modifying the judgment or judgments which the Court will ultimately have to deliver;" But our Courts, are Courts, which administer both law and equity.
Assuming that a Judge holding a trial is not likely to, be influenced by comments in newspapers or by other media mass communication may be ruled out though it would difficult to be dogmatic on that matter also the Court is entitled ' and is indeed bound to consider, especially in our country where personal conduct is largely influenced by opinion of the members of the caste, community, occupation or profession to which he belongs, whether comments holding up a party to public ridicule, or which prejudices society against him may not dissuade him from prosecuting his proceeding or compel him to compromise it on terms unfavorable to himself.
That is a real danger which must be guarded against: the Court is not in initiating proceedings for contempt for abusing a party to a litigation merely concerned with the impression on the Judge 's mind even on the minds of witnesses for a litigant, it is also concerned with the probable effect on the conduct of the litigant and persons having similar claims.
In Regina vs Duffey and others Ex Parte Nash(1) the Court of Appeal in England had to consider the question whether comments made upon a person after his conviction and before appeal was heard may be regarded as contempt of Court.
Lord Parker, C.J., observed: "Even if a Judge who 'eventually sat on the appeal had seen the article in question and had remembered its contents, it is inconceivable that he would be influenced consciously or unconsciously by it.
A Judge is in a very different position to a juryman.
Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case.
This, indeed, happens daily to Judges on Assize.
This is all the more so in the case of a member of the Court of Criminal (1) 662 Appeal, who, in regard to an appeal against conviction is dealing almost entirely with points of law,.
and who, in the case of an appeal against sentence is considering whether or not the sentence is correct in principle.
" This may be true when a Court of Appeal determines questions of law only or the appeal is confined to questions of sentence, but where a proceeding which is tried on evidence in the Court ' of First Instance, or in the Court of Appeal on questions of fact as well as of law, it would be an over statement to assert that a Judge may not be influenced even "unconsciously" by what he has read in newspapers.
No distinction is, in our judgment, warranted that comment on a pending case or abuse of a party may amount to contempt when the case is triable with the aid of a jury, and not when it is triable by a Judge or Judges.
Ordinarily a Court will not initiate proceedings for commitment for contempt where there is a mere technical contempt.
In Legal Remembrancer vs Matilal Ghose and Others(1) it was observed by Jenkins, C.J., that proceedings for contempt shotfid be initiated with utmost reserve and no court in the due discharge of its duty can afford to disregard them.
It was also observed that jurisdiction to punish for contempt was arbitrary, unlimited and uncontrolled and should be exercised with the greatest caution: that this power merits this description will be realised when it is understood that there is no limit to the imprisonment that may be inflicted or the fine that may be imposed save the Court 's unfettered discretion, and that the subject is protected by no right of general appeal.
We may at once observe that since the enactment of the Contempt of Courts Act 12 of 1926 and Act 32 of 1952 the power of the Court in imposing punishment for contempt of court is not an uncontrolled or unlimited power.
That, however does not justify the court in commencing proceedings without due caution and reserve.
But Banerjee, 1., who must be conversant with local conditions was of the view that action of the Chief Minister was likely to interfere with the course of justice for it was likely to have "baneful effects" upon the petitioners their cause and upon persons having a similar cause, and sitting in appeal we do not think that we can hold that he took an erroneous view of his power or of the tendency of the speech, which he has characterised as having "baneful effects".
Banerjee, J, has ultimately treated the contempt as technical for he has not imposed any substantive sentence, not even a warning.
He has merely expressed his displeasure.
The speech was ex facie calculated (1) I.L.R. 662 to interfere with the administration of justice.
In the circumstances the order of Banerjee, J., observing that the Chief Minister had acted improperly and expressing disapproval of the action does not call for any interference by this Court.
The appeal is dismissed.
| The West Bengal Government issued an Order under Rule 125 of the Defence of India Rules, placing certain restrictions upon the right of persons carrying on business in milk products.
The validity of this Order was challenged by a writ petition.
After Rule had been issued on the petition and served on the State Government, the State Chief Minister broadcast a speech sreking to justify the propriety of the Order.
The High Court issued a Rule requiring the Chief Minister to show cause why he should not be committed for contempt of Court.
It was contended on behalf of the Chief Minister that he had come to learn of certain persons propagating the view that the Order would not only have the effect of reducing the supply of milk, but also of displacing numerous persons from work and causing unemployment; that attempts were made to commence a political agitation against the Order; and that with a view to agitation it was considered that the Chief Minister was under a duty to explain to the people the policy underlying, and the reasons for promulgating the Order.
The High Court held that the speech amounted to contempt of Court; that it was contumacious in that it was likely to have a baneful effect upon the petitioners who had challenged the validity of the Order, and their cause and upon other persons having a similar cause; and that it was likely to interfere with the administration of justice.
The High Court therefore expressed disapproval of the Chief Minister 's conduct.
In appeal to this Court it was contended, inter alia, on behalf of the Chief Minister that the High Court erred in holding that the Chic/ Minister committed contempt of court because there was no finding that the contempt was intentionally committed; no real prejudice was caused either in the mind of the Judge or to the cause of the petitioners; that the speech contained no direct reference to any pending proceedings and that the Chief Miraster was under a duty to make the speech to instruct the public about the true state of affairs.
HELD :The speech was ex facie calculated to interfere with the administration of justice.
The High Court 's orders observing that the Chief Minister had acted improperly and expressing disapproval of his action was correct and did not call for any interference, by this Court.
Gray, at p. 40 and Legal Remembrancer .v.
Matilal Ghose and Others, I.L.R. ; referred to.
The, question in all cases of comment on pending proceedings is not whether ' the publication does interfere, but whether it tends to interfere, with the due course of justice.
The question is not so much of the in tention.
of the contemner as whether it is calculated to interfere with the 650 administration of justice.
If, therefore, the speech broadcast by the Chief Minister was calculated to interfere with the course of justice, it was liable to be declared a contempt of the Court even assuming that he had not intended thereby to interfere with the due course of justice.
[654 B] Debi Prasad Sharma and Ors.
vs The King Emperor, L.R. 70 I.A. 216 at p. 224; Saibal Kumar Gupta and Ors.
B.K. Sen and Anr., ; ; and Arthur Reginald Perera vs The King, ; referred to.
The Chief Minister in his speech characterised the preparation of food with milk in West Bengal as tantamount to a crime.
He also announced his version about the validity of the order, the reasons why it was promulgated, and asserted that it was an order made bona fide and in the interest of the public so that those who resisted it were acting contrary to the public interest.
These were the very questions that had to be determined by the Court.
The statements in the Chief Minister 's broadcast were therefore prims facie calculated to obstruct the administration of justice, since they were likely to create an atmosphere of prejudice against the petitioners and also to deter other persons having similar claims from approaching the Court.
It could not be held that when the trial of a case is held by a Judge without the aid of a jury, no contempt by interfering with the administration of justice may be committed.
The foundation of the jurisdiction lies not merely in the effect which comments on a pending proceeding may have upon the mind of the jury, but the consequences which result from the conduct of the contemner, who by vilification or abuse of a party seeks to hold him up to public ridicule, obloquy, censure or contempt or by comment on his case seeks to prejudice the issue pending before the Court.
[658 H; 659 A, B] The William Thomas Shipping Co., In re.
H.W. Dhillan & Sons Ltd. vs The Company, In re, Sir Robert Thomas and Others, and Regina vs Duffey and others Ex Parte Nash, ; referred to.
|
ivil Appeal Nos. 123124 of 1985.
From the Judgment and Order dated 21.9.1984 of the Punjab and Haryana High Court in R.S.A. No. 1716 of 1978 and R.S.A. No. 1898 of 1978.
Shanti Bhushan, Vishnu Mathur, Mrs. Roxna Swamy and Rajinder Singh for the Appellants.
T.A. Ramachandran and Ramesh K. Keshwani for the Re spondents.
The Judgment of the Court was delivered by OZA, J.
These appeals arise out of the judgment of Punjab & Haryana High Court dated 21.9.1984 in Regular Second Appeal Nos.
1716/78 and 1698/78 wherein the learned Judge dismissed the two second appeals and maintained the judgment of the appellate court i.e. Additional District Judge granting a decree for half share of the property each in favour of Smt.
Pan Bai and Smt.
Sohan Bai, the two daugh ters of deceased Smt.
Mam Kaur.
In order to clearly understand the facts the pedigree of the family would be relevant: 1015 Hari Singh Sanehi Singh Hazari Singh Smt.
Mam Kaur Jawana Singh Lakhi Singh Smt.
Pan Bai Smt.
Sohan Bai Munshi ' (Plaintiff in (Plaintiff in Singh & Ranjit Singh suit out of suit out of five others and6 other sons which RSA No. which RSA No.(defendants (Defendants 7 1698 of 1978 17 16 of 1978 Nos.1to 6) to 13) has arisen) has arisen) Hazari Singh owned agricultural lands the dimensions and its identity is not in dispute before us and he died in November 1918 leaving behind his widow Smt.
Mam Kaur who inherited the property.
Hazari Singh had left behind two daughters i.e. Smt.
Pan Bai, Plaintiff in the suit out of which second appeal before the High Court was No. 1698/78 and Smt.
Sohan Bai who was also a plaintiff in suit out of which second appeal before the High Court was No. 17 16/78.
In 1944 it is alleged that Smt.
Mam Kaur adopted Ranjit Singh grandson of Sanehi Singh and son of Lakhi Singh.
This Ranjit Singh had six other brothers and it is alleged that in 1945 Smt.
Mam Kaur gifted all the lands which she had inherited from her husband by an oral gift to Ranjit Singh.
As regards the two events i.e. adoption and gift there is some controversy in respect of the respective dates.
It appears and it was contended by the counsel for the appel lants that adoption was first and gift was only a consequen tial act to accelerate the succession whereas learned coun sel for the respondents contended that gift was first where as adoption was subsequent.
But it is not disputed that the gift also is nothing more than an oral gift and the same is about adoption.
Munshi Singh and his five brothers filed a suit for declaration challenging this gift and adoption made by Smt.
Mam Kaur in favour of Ranjit Singh.
By judgment and decree dated 24. 7.1947 the suit was decreed and it was held that the adoption of Ranjit Singh was invalid and the gift also was held ,to be invalid and a declaration was granted in respect of the gift so far as it affected the reversionary rights.
Against this judgment Ranjit Singh preferred an appeal but this was also dismissed.
On 4th June, 1963 Smt.
Mam Kaur sold away the entire lands to Ranjit Singh and his brothers for an amount of Rs.50,000.
Thereafter 1016 to claim pre emption a suit was filed by Smt.
Pan Bai and the other suit was filed by Munshi Singh and his five broth ers on the ground that as reversioners they have a superior right to pre emption.
In these preemption matters ultimately the Court held that Smt.
Pan Bai had a superior right as compared to Munshi Singh and his brothers and therefore and earlier date was given to Smt.
Pan Bai to deposit the sale amount and seek pre emption failing which her suit was to be dismissed and a later date was given to Munshi Singh and his brothers to deposit the sale amount and opt for pre emption.
Similar condition of dismissal of the suit for failure of depositing the amount was imposed.
So far as Smt.
Pan Bai is concerned she did not deposit the amount and therefore her suit for pre emption was dismissed where as Munshi Singh and others deposited the amount and obtained a decree of preemp tion which was executed and they obtained possession and in this manner they stood substituted in the sale.
In January 1965 Smt.
Mam Kaur died and Smt.
Sohan Bai filed a suit bearing No. 403/65 seeking a decree for posses sion of half of the share on the plea that in view of the declaratory decree dated 24.7.
1947 which was confirmed on appeal that on the death of Smt.
Mam Kaur succession had to be traced to Hazari Singh i.e. Sohan Bai 's father and she being the direct heir of Hazari Singh was entitled to half share in the land.
It was also pleaded that Smt.
Mam Kaur had already parted with her widow 's estate by gift deed made by her in 1945 in favour of Ranjit Singh and therefore she had no subsisting title which she could transfer by way of sale by the sale deed dated 4.9.63 and thus by this sale deed as she herself had no title she could not convey any title in favour of Ranjit Singh and his brothers.
Sohan Bai 's suit was decreed but on appeal it was remanded.
In the mean time Smt.
Pan Bai also filed a similar suit which was numbered 203/68 to claim possession of the remaining half share on the same ground, as was filed by Smt.
Sohan Bai.
The two suits were consolidated and the trial court by its judgment dated 2nd January, 1973 decreed Smt.
Sohan Bai 's suit but dismissed the suit filed by Smt.
Pan Bai on the ground that as Smt.
Pan Bai had filed a suit claiming on the basis of pre emption earlier she was estopped from disputing the validity of sale made by Smt.
Mam Kaur.
Against this judgment of the trial court losing parties filed their appeals before the Additional District Judge who by his judgment and decree dated 25.9.78 maintained the decree in the suit of Sohan Bai and reversed the trial court judgment in the suit of Smt.
Pan Bai and held that both the daughters were entitled to succeed to half share each in the property.
Against this judgment the defendants in Smt.
Sohan Bai 's case filed a regular second appeal which was No. 1716/78 1017 and defendants in Smt.
Pan Bai 's case filed regular second appeal which was No. 1698/78 in the Punjab & Haryana High Court.
Both these second appeals Were disposed of by the impugned judgment of the High Court.
Most of the facts are not in dispute.
The main contro versy raised in these appeals is that in the earlier suit the adoption and gift both were declared as invalid in a suit for declaration filed by the reversioners, what will be its effect? On the one hand counsel for the appellants contended that in fact adoption was followed by gift more or less in the nature of a step to accelerate the succession and when the court declared both to be invalid it clearly meant that the donee who was the adopted son Ranjit Singh was not left with any rights in the properties whereas on behalf of the respondents it was contended that adoption no doubt was declared invalid but so far as gift was concerned it was declared invalid in a suit for declaration by rever sioners to the limited extent that this gift will not affect the rights of the reversioners thereby meaning that so far as the life estate of Smt.
Mam Kaur was concerned it was transferred by this gift deed but the right of the rever sioners to succeed on the death of Smt.
Mam Kaur was pro tected as it was declared that this gift will not affect the rights of the reversioners.
A controversy was also raised as to which adoption or gift was first in time and what is its effect? Learned counsel for the appellants contended that as the adoption and gift both were declared invalid although a declaration was granted in a suit by reversioners but it clearly meant that nothing remained with the so called donee and therefore when Hindu Succession Act come into force because of Section 14 clause (1) Smt.
Mam Kaur became the absolute owner and therefore she had a valid right to trans fer the property by sale.
It was also contended that Ranjit Singh in whose favour the gift was alleged to have been made himself agreed to purchase this property alongwith his brothers; this indicates that he accepted the position that Smt.
Mam Kaur after coming into force of the Hindu Succes sion Act had acquired the absolute rights and she could convey the property by sale.
In any event his accepting to purchase the property from Smt.
Mam Kaur, amounts to an admission that there was no right created in his favour by gift which was declared invalid and on this basis learned counsel for the appellants contended that the appellants are entitled to succeed and the High Court was not right in granting the decree on the basis of the claim of the two daughters who claimed to be the heirs of Hazari Singh.
Alternatively it was 1018 also contended by learned counsel for the appellants that even if the gift in favour of Ranjit Singh is accepted it is clear that Smt.
Mam Kaur had succeeded to the property as an heir of her husband and because of Hindu women 's right to property Act, 1937 Smt.
Mam Kaur had a limited estate.
As it is well settled that this limited estate in favour of Smt.
Mam Kaur had all the rights which an heir could have in immovable property but in the case of female heirs the only limitation was in respect of alienation and alienation could only be of the rights that she could alienate and that amounts to only life interest.
It is also well settled that the alienaee in this case Ranjit Singh will get the property till the life time of Smt.
Mam Kaur and it is also well settled that if during the life time of Smt.
Mam Kaur Hindu Succession Act came into force, as the property in suit was in the hands of alienee i.e. Ranjit Singh he will not get the benefit of Section 14(1) and will not become the abso lute owner but on the death of Smt.
Mam Kaur the property will revert back to the heirs of Smt.
Mam Kaur 's husband.
It was also contended that in spite of the fact that a gift creating a life interest in favour of Ranjit Singh was in existence but Smt.
Mam Kaur still had the residuary rights of disposing of the property after her death if during her lifetime the Hindu Succession Act came into force.
As in the present case it did come into force, the limited rights which remained with Smt.
Mam Kaur became full rights on coming into force of the Hindu Succession Act and therefore if Smt.
Mam Kaur transferred by sale the property the sale would convey at least the residuary rights vested in her i.e. the right of absolute ownership at most subject to possession of the alienee during her lifetime and on this basis it was contended that the sale made by Smt.
Mam Kaur is valid and therefore the view taken by the High Court is not correct.
On the other hand learned counsel for the respondents contended that as the gift was valid the property was trans ferred in favour of the alienee i.e. Ranjit Singh although it was the life estate but with the Hindu Succession Act coming into force she could not be said to be possessed of the property as there were no rights in the property vested in Smt.
Mam Kaur and even if the widest meaning is given to 'possessed of ' still it could not be contended that she had any rights left with her.
Therefore during her lifetime the alienee alone had the rights in property.
The effect if any of the earlier decree was that on her death the property will revert back and in that event it will revert back to the heirs of her husband not to her heirs and in this view it was contended that the judgment passed by the High Court is correct.
As regards the effect of Smt.
Pan Bai 's suit for pre emption 1019 leading to estoppel also contentions were advanced.
Learned counsel for the appellants on the basis of decisions of this Court in Jagannathan Pillai vs Kunjithapa dam Pillai and Ors., ; and Gopal Singh and Another vs Dile Ram (dead) by LRs and others, contended that as the gift at best could be said to be effective during the lifetime of Smt.
Mam Kaur she had a residuary right left in her which she could dispose of.
Alternatively it was contended that gift in favour of Ranjit Singh was declared invalid and therefore she could be said to be possessed of the property in view of language of Section 14(1) of the Hindu Succession Act.
It was also contended that in the sale deed, Ranjit Singh himself was one of the purchasers and the sale deed indicates that at the time of sale Smt.
Mam Kaur delivered possession to the purchasers.
On these basis it was contended that it appears that Ranjit Singh had given the possession of the property back to Smt.
Mam Kaur before this sale deed was executed.
Learned counsel for the respondents on the other hand contended that the decree declaring the gift bad was only a declaratory decree in favour of the reversioners that clear ly meant that so far as reversioners rights on the death of Smt.
Mam Kaur are concerned they could not be affected by gift but it did not mean that Smt.
Mam Kaur did not transfer her rights by gift in favour of Ranjit Singh.
It was there fore contended that in view of decision in Kuldip Singh and others vs Surain Singh and Others, which is a judgment of a Bench .of three Judges of this Court, Smt.
Mam Kaur could not be said to be a person possessed of anything and therefore no benefit could be obtained by Section 14(1) so far as Smt.
Mam Kaur is concerned and it was therefore contended that the judgment passed by the High Court could not be assailed.
It was also contended that so far as the question of re conveyance by Ranjit Singh in favour of Smt.
Mam Kaur is concerned, the question has been examined on the basis of evidence by the two courts below and a positive finding has been arrived at by the courts that the evidence is not sufficient to come to the conclu sion that there was transfer of possession from Ranjit Singh to Smt.
Mam Kaur before the sale deed was executed.
It was also contended that the two decisions on which reliance is placed by the learned counsel are clearly distinguishable on facts as in these two judgments on the date the Hindu Suc cession Act came into force, the widow was possessed of the property and therefore it was held that she acquired the rights as full owner.
1020 So far as the contention of the learned counsel for the appellant about the transfer of possession from Ranjit Singh back to Smt.
Mam Kaur is concerned the learned courts below have come to a positive finding of fact that there was no transfer of possession in favour of Smt.
Mam Kaur before the sale deed by her was executed and while coming to the con clusion the courts below have considered the effect of the recital in the sale deed executed by Smt.
Mam Kaur and the fact that Ranjit Singh is one of the purchasers and having gone through the judgments, in our opinion, the conclusions could not be said to be erroneous and therefore the conten tions of the learned counsel for the appellants on that ground could not be accepted.
As regards the question about the declaration of the gift to be invalid, the judgment which granted the decree in favour of the reversioners clearly indicated that it was a decree of declaration saying that the gift had no effect on the rights of the reversioners.
The words in the operative part of the judgment stated: "For the reasons aforesaid the plaintiffs succeed and are granted a decree for declara tion that Mst.
Mam Kaur did not validly adopt Ranjit defdt.
and that gift in favour of Ranjit defdt.
shall not affect the right of the reversioners after the death or termina tion of the interest in the suit land of Mst.
Mam Kaur.
" In this view of the matter it is therefore clear that what was held was that the gift will not affect the rights of the reversioners on the death of Smt.
Mam Kaur but it could not be disputed that so far as Smt.
Mam Kaur during her lifetime is concerned as she had gifted away the property to Ranjit Singh and delivered possession she had no rights left with her.
The contentions advanced by learned counsel in respect of residuary rights also is of no consequence as it is apparent that Smt.
Mam Kaur who was enjoying the limited estate before the Hindu Succession Act came into force, transferred her rights by gift and if a valid gift is ef fected it could not be contended that there were any residu ary rights left with her.
In fact what residuary rights could be thought of were not the rights of the widow but the right of the reversioners to get as heirs of her husband on her death and on that basis it could not be said that she could be said to be possessed of any right in the property which she held as a limited owner on the date the Hindu Succession Act came into force.
In Jagannathan Pillai 's case the 1021 property was re conveyed in favour of the widow and this Court therefore observed: "The case of the widow who had temporarily lost the right in the property by virtue of the transfer in favour of the alienee or the donee cannot be equated with that of a strang er by forgetting the realities of the situa tion.
Surely, the Act was intended to benefit her.
And when the widow becomes possessed of the property, having regained precisely that interest which she had temporarily lost during the duration of the eclipse, Section 14(1) would come to her rescue which would not be the matter in the case of a stranger who cannot invoke Section 14( 1).
" In Gopal Singh 's case, this Court while examining the facts, clearly stated as under: "It is pertinent to note that the compromise decree reads as follows: I allow the appeal of the appellants and modify the judgment of the trial court to the extent that gift deed in respect of the land measuring 21 15 17 bighas comprising Khata Khatauni No. 3/16 to 27 bighas situated in village Barsu Ballah is hereby rejected and declared ineffective.
The aforesaid land along with the other land shall be divided in equal shares after the death of Sheru alias Bhushe hari and Dhari shall himself give due share to Hari Ram in accordance with the aforementioned order.
" The operative portion of the compromise decree which was quoted by this Court in the judgment clearly indicated that as the gift deed was ineffective in respect of the lands mentioned therein the widow continued to enjoy the rights and benefits till the Hindu Succession Act came in force as it is observed: "The effect of the aforesaid was that the gift was ineffective and Smt.
Bhushehari continued to enjoy the right and benefit she had during her limited ownership until 1956".
Under these circumstances therefore these cases do not help the appellant.
It is clear that in view of gift made in favour of Ranjit Singh,Mam Kaur on the date on which Hindu Succession Act came into 1022 force, was not possessed of any fight in the property and therefore she could not get any advantage from the coming into force of the Hindu Succession Act.
This Court in Kuldip Singh 's case clearly held: "It is clear from the questions reproduced above that, on the principles laid down by this Court in the case of Mangal Singh and others (supra) it has to be held in the present case that the property in dispute cannot be held to be possessed by Smt.
Mehtab Kaur, because, after gifting the property to Hamam Singh, and parting with the possession of the property, she was not left with any fights at all under which she could regain possession in her own life time.
The gift executed by her was binding on her, even though it may not 'have been binding on the reversioners.
She could not, therefore, avoid the deed of gift and could not claim back possession from Hamam Singh or his successors in interest.
Having thus completely parted with her fights, she could not be held to be possessed of the property when the Act came into force and consequently she could not become full owner of it.
" It is clear that on the date on which Smt.
Main Kaur executed the sale deed, in fact she had no title to the property nor she was in possession thereof.
As regards the contention about Smt.
Pan Bai on the basis of estoppel is concerned it is clear from the language of Section 115 of the Evidence Act that doctrine of estoppel can not be invoked merely because Smt.
Pan Bai filed a suit for pre emption.
Section 115 of the Evidence Act reads thus: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
" In view of this learned counsel did not seriously press the contention.
Consequently we see no reason to entertain the appeal.
The appeals are therefore dismissed and the decree passed by the learned courts below is maintained.
In view of the circumstances of the case we pass no orders as to costs.
| One Hazari Singh died in November 1918 leaving behind his widow Smt.
Mam Kaur and two daughters viz., Smt.
Pan Bai and Smt.
Sohan Bai.
The widow inherited the agriculture properties of her husband.
The present appeals have arisen out of the two suits filed by the two daughters aforesaid claiming their half share in the property.
The circumstances that led to the filing of the suits may be stated thus: Smt.
Mam Kaur, the widow, adopted Ranjit Singh grand son of Sanehi Singh and son of Lakhi Singh (one of the collater als) in 1944 and gifted all the lands to him inherited by her from her husband.
Both the adoption as also the gift were made orally.
Munshi Singh and his brothers (reversions) filed a suit challenging the validity both of the adoption of Ranjit Singh and the gift of the properties to him.
By a decree of the Court both the adoption as also the gift in favour of Ranjit Singh were declared invalid and a declaration was granted in respect of the gift so far as it affected the reversionary rights.
Thereupon on 4th June, 1963, Smt.
Mam Kaur sold away the entire property to Ranjit Singh & his brothers for Rs.50,000.
Pan Bai, daughter of deceased Hazari Singh and Munshi Singh and others (revisioners) filed suits claiming pre emption rights to purchase the properties in question.
By a decree of the Court it was held that Pan Bai has a superior right to purchase the property.
Accordingly first preference was granted in favour of Smt.
Pan Bai to deposit the sale amount and seek pre emption failing which her suit was to be dismissed and a later date was given to Munshi Singh and others.
Pan Bai did not deposit the amount with the result Munshi Singh & others deposited the amount and took possession of the properties and came to be substi tuted in the sale.
1013 On the death of Mam Kaur in January, 1965, Smt.
Sohan Bai (her 2nd daughter) filed a suit for a decree for posses sion of half of the share on the plea that in view of the declaratory decree of 24.7.47, on the death of Smt.
Mam Kaur, succession had to be traced to Hazari Singh i.e. her father.
Pan Bai, also filed a suit for the same relief.
The Trial Court decreed the suit filed by Smt.
Sohan Bai but dismissed the suit filed by Smt.
Pan Bai on the ground that as Smt.
Pan Bai had flied a suit claiming on the basis of pre emption earlier, she was estopped from disputing the validity of the sale made by Smt.
Mam Kaur.
On appeal the Additional District Judge maintained the decree passed in the suit of Smt.
Sohan Bai and reversed the trial Court 's Judgment in the suit filed by Smt.
Pan Bai and held that both the daughters were entitled to succeed to half share each in the property.
Against the order of the Additional District Judge, defendants in both the suits filed Regular Second Appeals in the High Court which were dismissed by the impugned judgment.
Hence these appeals.
Before this Court it was inter alia contended by the appellants that ; in an earlier suit the adoption and the gift having been declared invalid, the donee who was the adopted son of Ranjit Singh was not left with any rights in the properties; on the other hand it was contended by the Respondents that no doubt adoption was declared invalid but so far as gift was concerned, it was declared invalid in a suit for declaration by reversioners to the limited extent that this gift will not affect the rights of the reversion ers thereby meaning that so far as the life estate of Smt.
Mam Kaur was concerned, it was transferred by the gift deed but the right of the reversioners to succeed on the death of Smt.
Mam Kaur was protected as it was declared that this gift will not affect the rights of the reversioners.
Dismissing the appeals, this Court, HELD: The gift will not affect the rights of the rever sioners on the death of Smt.
Mam Kaur but it could not be disputed that so far as Smt.
Mam Kaur during her life time is concerned, as she had gifted away the property to Ranjit Singh and delivered possession, she had no rights left with her.
[1020E F] What residuary rights could be thought of were not the rights of the widow but the right of the reversioners to get as heirs of her husband on her death and on that basis it could not be said that she could be said to be possessed of any right in the property which she held 1014 as a limited owner on the date the Hindu Succession Act came into force.
[1020G H] On the date on which Smt.
Mam Kaur executed the sale deed, in fact, she had no title to the property nor she was in possession thereof.
[1022D E] Jagannathan Pillai vs Kunjithapadam Pillai & Ors., ; Gopal Singh & Ors.
vs Dile Ram (dead) by Lrs. & Ors., Kuldip Singh & Ors.
vs Surain Singh and others, referred to.
|
Civil Appeal No. 3787 of 1983.
Appeal by Special leave from the Judgment and Order dated the 19th March, 1971 of the Madhya Pradesh High Court in Misc.
Petition No. 565 of 1980.
S.Q. Hassan, S.K. Mehta, P.N. Puri and M.K. Dua for the Appellant.
Rameshwar Nath for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short but interesting question of law relating to the interpretation of certain provisions of the (hereinafter referred to as the Act).
The question is whether section 47 sub section (3) of the Act is attracted when an application is made by the holder of a permit for extension of the route for which the permit has been granted to him.
In order to appreciate the question, it is necessary to state a few facts giving rise to the appeal.
The appellants are a partnership firm and at all material times they held a stage carriage permit granted to them by the Regional Transport Authority for the route Dabra Karera via Lodi Mata extended upto Gwalior.
It appears that on 22nd June 1978 this route for which the permit was held by the appellants was modified at the request of the appellants and the portion of the route from Karera to Shivpuri was deleted.
Thereafter by a Notification dated 4th August 1978 certain routes were nationalised under Scheme No. 11 M which came into force with effect from 25th September 1978 and under clause 7 (b) of this Scheme, the portion of the route from Shivpuri to Satanwara was deleted and the permit of the appellants remained operative only for the remaining portion of the route, namely, Satanwara Gwalior via Dabra.
This state of affairs conti 292 nued from 25th September 1978 until 18th December 1978 when the State Government by a Notification issued in exercise of the powers conferred under sub section (2) of section 68 F of the Act made the following modifications in the various schemes approved by it under section 68 D sub section (2), including Scheme No. 11 M: "Notwithstanding anything contained in this Scheme, the private operators may be permitted to ply stage carriages for hire or reward subject to the following conditions, namely: (1) Whereas the notified route connects a district Head quarter, the portion thereof covered by the permit shall not exceed 20 kilometers and in other cases it shall not exceed 10 kilometers.
(2) The private operators shall ply the stage carriage over the distance, other than the distance of the notified route, which shall not be less than twice the distance of the notified route covered by the permit; (3) The private operators shall not pick up or set down passengers on the notified route.
Since this modification permitted plying of stage carriages by private operators even on portion of a nationalised route connecting a district head quarter and not more than 20 kms.
in length, the appellants made an application to the Regional Transport Authority for restoring the portion of the route from Shivpuri to Satanwara on the ground that Shivpuri was a district head quarter and the portion of the route between Shivpuri and Satanwara was less than 20 kilometers.
The Regional Transport Authority however took the view and in our opinion rightly, that the modification made by the State Government in Scheme No. 11 M under the Notification dated 18th December 1978 did not have any retrospective effect and the appellants were therefore not entitled to automatic restoration of the portion of the route from Shivpuri to Satanwara and in this view, the Regional Transport Authority rejected the application of the appellants.
The appellants thereupon filed a regular application in the prescribed form for extension of the route specified in their permit 293 from Satanwara to Shivpuri.
The application was published in the Gazette on 11th April 1980 and on coming to know about it, M.P. State Road Transport Corporation which is the 2nd respondent before us filed its objections against the grant of such extension.
The application together with the objections was heard by the Regional Transport Authority and by an order dated 11th September 1980 the Regional Transport Authority rejected the application on two grounds.
The first ground was that "the specific order of the State Government curtailing the Satanwara Shivpuri portion of applicant 's permit while approving Scheme No. 11 M cannot be treated as having been amended by the general amendment made to the scheme" and the other was that no extension of the route could be granted without following the procedure laid down in Section 47 sub section (3) of the Act.
This order made by the Regional Transport Authority was challenged by the appellants in a writ petition filed in the High Court of Madhya Pradesh.
There were two grounds of challenge urged on behalf of the appellants in support of the writ petition but we are concerned in this appeal with only one ground and hence we need not refer to the other ground and burden our judgment with a discussion of that ground.
The ground which was seriously pressed before the High Court and repeated before us was that Section 47 sub section (3) has no application where what is sought by an applicant is not the grant of a new permit on a specified route under section 48 but merely an extension of the route under an existing permit under sub section (8) of section 57 and the order made by the Regional Transport Authority rejecting the application of the appellants on the ground of non compliance with sub Section (3) of section 47 was therefore plainly wrong.
The appellants sought to support this ground by relying on the decision of the Madhya Pradesh High Court in Dewan Chand vs State Transport Authority.
But the learned Judge who heard the writ petition observed that the decision in Dewan Chand 's case (supra) was contrary to the view taken by this Court in R. Obliswamy Naidu vs Regional State Transport Appellate Tribunal and Delhi Transport Undertaking vs Zamindar Motor Transport Company and held that by reason of the express language of sub section (8) of section 57 an application for 294 extension of the route specified in an existing permit was tantamount to an application for grant of a new permit and hence it was subject to the provisions of section 47 sub section (3) and it could not be considered without following the procedure prescribed by sub section (3) of section 47.
The learned Judge on this view rejected the writ petition of the appellants.
The appellants thereupon preferred the present appeal with special leave obtained from this Court.
The only question which arises for consideration in this appeal is as whether section 47 sub section (3) is attracted when an application is made by a holder of a permit for extension of the route specified in the permit.
The determination of this question depends upon a true interpretation of some of the relevant provisions of the Act.
Section 2 is the definition section and clause (28A) of this section defines route to mean "a line of travel which specifies the high way which may be traversed by a motor vehicle between one terminus and another".
Chapter IV is the only material chapter for our purpose and as its heading shows, it deals with control of transport vehicles.
Section 42 provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used.
Section 43 confers certain powers on the State Government to issue directions to the State Transport Authority and section 44 provides for the constitution of State Transport Authority and Regional Transport Authorities for each State.
Section 45 specifies the authority to which an application for a permit must be made and what particulars an application for a permit shall contain is prescribed in section 46.
Section 47 sub section (1) lays down what matters shall be taken into account by the Regional Transport Authority in considering an application for a stage carriage permit and various other provisions regarding reservation of certain percentage of stage carriage permits for Scheduled Castes and Scheduled Tribes and persons belonging to economically weaker sections of the community are made in sub section (1A) to sub section (1H) of section 47.
Then follows sub section (3) of section 47 which is in the following terms: "47 (3).
A Regional Transport Authority may, having regard to the matters mentioned in sub section (1) limit the number of stage carriages generally or of any specified 295 type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.
" Section 48 sub section (1) provides that, subject to the provisions of section 47, a Regional Transport Authority may, on an application made to it under section 46, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit, provided that no such permission shall be granted in respect of any route or area not specified in the application.
Sub section (3) of section 48 empowers the Regional Transport Authority while granting a stage carriage permit to attach to the permit any one or more of the conditions set out in that sub section.
One of the conditions which may be attached to the permit is that set out in clause (xxi) and it reads as follows: "48(xxi): that the Regional Transport Authority may, after giving notice of not less than one month (a) vary the conditions of the permit; (b) attach to the permit further conditions; Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof.
" Sections 49 to 51 deal with an application for grant of contract carriage permit while sections 52 and 53 deal with an application for grant of private carrier 's permit.
We are not concerned with these provisions and hence we need not refer to them.
So also we are not concerned with sections 54 to 56 which deal with application for public carrier 's permit.
Section 57 is however an important section and in its various provisions it lays down the procedure in applying for and granting permits.
Sub section (2) of section 57 296 prescribes the time within which an application for a stage carriage permit should be made and sub Sections (3) to (7) lay down the procedure which must be followed by the Regional Transport Authority while dealing with an application for a stage carriage permit made before it.
Sub section (8) of section 57 is the material provision which calls for interpretation and it runs as follows: "57 (8): An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in, the case of a stage carriage permit, by increasing the (number of trips above the specified maximum or by altering the route covered by it) or in the case of a contract carriage permit or a public carrier 's permit, by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit.
" The argument of the respondents on these provisions was, and this argument found favour with the High Court, that an application for extension of the route specified in a permit is nothing but an application to vary the conditions of the permit by altering the route covered by it and it is therefore required by sub section (8) of section 57 to be treated as an application for grant of a new permit and hence, by reason of section 48, the grant of such an application for extension must be held to be subject to the provisions of section 47 sub section (3) and no such extension can be granted without following the procedure prescribed by sub section (3) of section 47.
The validity of this argument was assailed before us on behalf of the appellants and it was contended that the fulfilment of the condition set out in sub section (3) of section 47 was not a part of the procedure for consideration of an application for extension of the route specified in a permit and when sub section (8) of section 57 provided that such an application shall be treated as an application for grant of a new permit, what was sought to be incorporated was merely the procedure set out in sub section (3) to (7) of Section 57 and not pre condition for consideration of such an application set out in sub section (3) of Section (47).
This contention, it was submitted on behalf of the appellants, was supported by Clause (xxi) of sub section (3) of Section 48, because if the condition set out in that clause is attached to a permit, the Regional Transport Authority can suo motu extend the route specified in the permit upto a distance of 297 24 k.ms.
for serving the public convenience, without being subject to the provisions of sub section (3) of Section 47 and if the Regional Transport can do so suo motu without being required to follow the procedure of sub section (3) of Section 47, there is no reason why the Regional Transport Authority should not be entitled to do so on an application for extension made by the holder of the permit.
These were the rival arguments urged on behalf of the parties and we shall now proceed to consider them.
The permit held by the appellants in the present case, after the deletion of the portion of the route from Shivpuri to Satanwara was operative only for the remaining portion of the route namely, Satanwara Gwalior via Dabra and in view of the modification made in Scheme No. 11 M by the notification issued by the State Government under section 68F sub section (2) on 18th December, 1978, the appellants applied for extension of the route from Satanwara to Shivpuri, a distance less than 20 kilometers.
The question it whether this application could be considered by the Regional Transport Authority without first determining under section 47 sub section (3) the number of stage carriages for which permits may be granted for the route Shivpuri Satanwara Gwalior via Dabra, because if the extension applied for were granted, that would be the route for which the permit would be operative.
Now, it is clear that it was a condition of the permit, after the deletion of the portion of the route from Shivpuri to Satanwara, that the appellants shall use their vehicle or vehicles only on the route Satanwara Gwalior via Dabra.
The application of the appellants for extension of this route by including the portion from Shivpuri to Satanwara was, therefore, in effect and substance, an application for varying this condition of the permit by extending the route and it clearly fell within the terms of sub section (8) of section 57.
So far there was no dispute between the parties, but at this point the agreement between the parties ended and a controversy arose as to what was the consequence and effect of the applicability of sub section (8) of section 57 to this application made by the appellants.
There can be little doubt that under terms of sub section (8) of section 57, this application of the appellants was liable to be "treated as an application for the grant of a new permit".
But the question is: for what purpose and which of the provisions of the Act could be said to be attracted to this application by reason of the requirement that it should be treated as an application for the grant a new permit.
The argument of the respondents was that no application for grant of a new permit can be entertained by the Regional Transport Authority under section 48, unless the number of stage carriages 298 for which permits may be granted for the particular route is first determined by the Regional Transport Authority under sub section (3) of section 47, and, therefore, the consequence of treating the application of the appellants for extension of the route as an application for grant of a new permit was that no extension could be granted by the Regional Transport Authority unless the requirement of section 47 sub section (3) was first complied with and the number of stage carriages for which permits may be granted on the extended route was determined under that provision.
But we do not think this argument is well founded.
It is undoubtedly true that having regard to the several decisions of this Court and particularly, the decision in Mohd. Ibrahim vs State Transport Appellate Tribunal, Madras, the law must now be taken to be well settled that an application for grant of a new permit cannot be entertained by the Regional Transport Authority under section 48, unless the limit of the number of stage carriages for which permits may be granted is first determined under section 47 sub section (3).
There are two independent steps required to be taken in connection with the grant of a permit, the first being the determination by the Regional Transport Authority under section 47 sub section (3) of the number of stage carriages for which permits may be granted and the second being that "thereafter applications for stage carriage permits can be entertained" and, therefore, it would mean that before an application for grant of a permit can be entertained by the Regional Transport Authority, there would be a determination under section 47 subsection (3).
Ray, J., as he then was speaking on behalf of the Court observed in Ibrahim 's case (supra): "In our opinion, the provisions of the Act in regard to stage carriage permits have the following consequences.
If the Regional Transport Authority were to appoint a date for the receipt of applications for the grant of stage carriage permits, the Regional Transport Authority should fix the limit of the number of permits which might be granted and then notify the same under section 57 (2) of the Act.
If, on the other hand, applications were sent by persons suo motu for the grant of permit the applications would have to be published and the representations would have to be asked for.
The proviso of 299 section 57 (3) of the Act furnishes the answer that if the grant of any permit in accordance with the application would have the effect of increasing the number of permits beyond the limit fixed under section 47 (3) of the Act, the Regional Transport Authority might summarily refuse the application without following the procedure laid down in section 57 of the Act.
In other cases, the proper stage for fixing the limit under section 47 (3) of the Act would be after applications are received and before the same would be published under section 57 (3) of the Act asking for representations.
If however the Regional Transport Authority would not increase or modify the number of permits which already exist, the grant of an application would mean transgressing the limit fixed, and procedure laid down in section 57 (3) of the Act need not than be followed.
On the other hand, if the Regional Transport Authority on receipt of applications would decide upon the limit of permits and the grant thereof would be with in the limit prescribed then the procedure laid down in section 57 (3) of the Act would be followed.
" There can, therefore, be no doubt that if an application for varying the condition of a permit by extension of the route specified in the permit were equated wholly with an application for grant of a new permit and the permit for the extended route were to be regarded as a new permit, the procedure prescribed in section 47 sub section (3) would have to be followed and the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority.
But we do not think that the prescription in sub section (8) of section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to attract the applicability of sub section (3) of section 47.
Section 57 deals with the procedure in applying for and granting permits and sub section (3) to (7) lay down the procedure which must be followed in considering and deciding, inter alia, an application for grant of a stage carriage permit.
Sub section (8) follows upon sub section (3) to (7) and is part of the same section which has a definite object and scheme of providing the procedure for considering and granting an application and therefore, when it 300 provides that an application to vary the conditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route covered by it shall be treated as an application for grant of a new stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding sub section (3) to (7) to such an application.
The context in which sub section (8) occurs and its juxtaposition with sub section (3) to (7) in section 58 clearly indicate that what is sought to be made applicable to an application referred to in sub section (8) by treating it as an application for grant of a new permit, is the procedure set out in sub section (3) to (7) of section 58 and nothing more.
The requirement spelt out in sub section (3) of section 47 that the number of stage carriages for which permits may be granted on any particular route must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under section 48, is obviously not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit can be considered and granted.
This condition precedent cannot be said to have been incorporated by reference under sub section (8) of section 57.
An application to vary the conditions of a permit as set out is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in sub section (3) to (7) of that section.
It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant.
It is the same permit which now, after the granting of the application, covers the extended route.
It may be possible to say that where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect a and substance, be an application for grant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined under section 47 sub section (3) before the application to vary the conditions of the permit can be entertained.
An applicant for a permit on a route which is not merely technically, but in truth and reality a different route, distinct from the original route, may not be permitted to defeat the provision enacted in section 47 sub section (3) by 301 labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in section 47 sub section (3) may have to be complied with before the Regional Transport Authority can consider and grant the application.
But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is an application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in sub section (3) of Section 47.
We are, therefore, of the view that the High Court was in error in holding that the application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could not be considered by the Regional Transport Authority with out following the procedure prescribed under sub section (3) of Section 47.
We accordingly allow the appeal, set aside the judgment of the High Court as also the order made by the Regional Transport Authority and remit the case back to the Regional Transport Authority for considering the application of the appellants in accordance with law in the light of the observations contained in this judgment.
There will be no order as to costs of the appeal.
S.R. Appeal allowed.
| The appellant filed a suit in the District Munsiffs ' Court for demarcating the boundaries of his property from that of the respondents and for a mandatory injunction directing the respondents to remove the eaves protruding on the northern side by reason of which the 'eaves ' water was falling into his property.
The respondents denied that they encroached upon any portion of the appellants property and contended that the appellant had with ulterior motive removed the survey stones in the north eastern and north western side of the respondents ' property and had encroached upon some portion of their land.
It was further contended that the eaves ' water fell only on their own land and that the mandatory injunction claimed was not sustainable in law.
An Advocate Commissioner who was directed to make a local inspection filed his report.
The Trial Court passed a decree for demarcation of the property by putting up of a boundary wall within the appellant 's property and also issued a mandatory injunction directing the removal of portions of the eaves of the respondents ' buildings.
The Trial Court Judgment was confirmed by the Subordinate Judge in appeal.
In the second appeal to the High Court, a Single Judge rejected the contention of the respondents that the measurements in the Commissioner 's report and the markings contained in his plan were not correct, and dismissed the second appeal.
When a review petition was filed by the respondents, the Single Judge noticed that there was an error of measurement in the Government survey plan and the plan filed by the Commissioner and opined that there should be a fresh consideration of the question, set aside his judgment and the concurring judgments of the first two courts, and remanded the matter to the Trial Court.
Allowing the appeal to this court, 498 ^ HELD: 1.
The single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which had confirmed the concurring judgments of the first two courts, but also erred in setting aside the judgments of the first two courts and remanding the suit to the court of first instance.
He should have adopted the more equitable and just method of framing some additional issues and calling for findings on those issues from the Trial Court with liberty to both the parties for adducing evidence.
[501 H; 502 A B] 2.
The Single Judges ' order in so far as it relates to setting aside his own judgment in the second appeal is set aside.
The judgment and decrees of the first two courts are kept in tact.
The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the Trial Court and dispose of the second appeal after taking into consideration the findings and the objections of the parties to the findings.
[502 C D]
|
Civil Appeal No. 403 of 1956.
Appeal from the judgment and order dated April 11, 1956, of the Madras High Court in Appeal No. 145 of 1952, arising out of the judgment and decree dated March 31, 1951 of the Court of the Subordinate Judge, South Kanara in Original Suit No. 24 of 1949.
M.K. Nambiyar, M. L. Naik, J. B. Dadachanji, S.N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant in C.A. No. 403 of 1956 and respondents in special leave Petition No. 327 of 57. 897 C. K. Daphtary, Solicitor General of India, B. B. L. Iyengar and T. M. Sen, for the respondents in SI No. 403 of 56 and petitioner in special leave petition No. 327 of 1957.
November 8.
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.
The substantial question of law, which arises for decision in this appeal, is whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under article 26(b), is subject to, and can be controlled by, a law protected by article 25(2)(b), throwing open a Hindu public temple to all classes and sections of Hindus.
In the District of South Kanara which formed until recently part of the State of Madras and is now comprised in the State of Mysore, there is a group of three villages, Mannampady, Bappanad and Karnad collectively known as Moolky Petah; and in the village of Mannampady, there is an ancient temple dedicated to Sri Venkataramana, renowned for its sanctity.
It is this institution and its trustees, who are the appellants before us.
The trustees are all of them members of a sect known as Gowda Saraswath Brahmins.
It is said that the home of this community in the distant past was Kashmir, that the members thereof migrated thence to Mithila and Bihar, and finally moved southwards and settled in the region around Goa in sixty villages.
They continued to retain their individuality in their new surroundings, spoke a language of their own called Konkani, married only amongst themselves, and worshipped idols which they had brought with them.
Subsequently, owing to persecution by the Portuguese, they migrated further south, some of them settling at Bhatkal and others in Cochin.
Later on, a chieftain who was ruling over the Moolky area brought five of these families from Bhatkal, settled them at Mannampady, erected a temple for their benefit and installed their idol therein, which came to be known as Tirumalaivaru or Venkataramana, and endowed lands therefor.
In course of time, other families of Gowda 398 saraswath Brahmins would appear to have settled in the three villages constituting Moolky, and the temple came to be managed by members of this community residing in those villages.
In 1915, a suit, 0. section No. 26 of 1915, was instituted in the Court of the Subordinate Judge of South Kanara under section 92 of the Code of Civil Procedure for framing a scheme for this temple.
Exhibit A 6 is the decree passed in that suit.
It begins by declaring that "Shri Venkataramana temple of Moolky situated in the village of Mannampadi, Nadisal Mangane, Mangalore taluk is an ancient institution belonging to the Gowda Saraswath Brahmin community, i.e., the Commudity to which the parties to the suit belong residing in the Moolky Petah, i.e., the villages of Bappanad, Karnad and Mannampadi according to the existing survey demarcation".
Clause 2 of the decree vests the general control and management of the affairs of the temple, both secular and religious, in the members of that community.
Clause 3 provides for the actual management being, carried on by a Board of Trustees to be elected by the members of the community aforesaid from among themselves.
Then follow elaborate provisions relating to preparation of register of electors, convening of meetings of the general body and holding of elections of trustees.
This decree was passed on March 9, 1921, and it is common ground that the temple has ever since been managed in accordance with the provisions of the scheme contained therein.
This was the position when the Madras Temple Entry Authorisation Act (Madras V of 1947), hereinafter referred to as the Act, was passed by the Legislature of the Province of Madras.
It will be useful at this stage to set out the relevant provisions of the Act, as it is the validity of section 3 thereof that is the main point for determination in this appeal.
The preamble to the Act recites that the policy of the Provincial Government was "to remove the disabilities imposed by custom or usage on certain classes of Hindus against entry into Hindu temples in the Province which are open to the general Hindu public".
899 Section 2(2) defines 'temple ' as "a place by whatever name known, which is dedicated to or for the benefit, of or used as of right by the Hindu community in" general as a place of public religious worship".
Section 3 (1) enacts that, "Notwithstanding any law, custom or usage to the contrary, persons belonging to the excluded classes shall be entitled to enter any Hindu temple and offer worship therein in the same manner and to the same extent as Hindus in general; and no member of any excluded class shall, by reason only of such entry or worship, whether before or after the commencement of this Act, be deemed to have committed any actionable wrong or offence or be sued or prosecuted therefor.
Section 6 of the Act provides that, "If any question arises as to whether a place is or is not a temple as defined in this Act, the question should be referred to the Provincial Government and their decision shall be final, subject however to any decree passed by a competent civil court in a spit filed before it within six months from the date of the decision of the Provincial Government".
It is the contention of the appellants and that, in our opinion, is well founded that the true intent of this enactment as manifest in the above provisions was to remove the disability imposed on Harijans from entering into temples, which were dedicated to the Hindu public generally.
Apprehending that action might be taken to put the provisions of this Act in operation with reference to the suit temple, the trustees thereof sent a memorial to the Government of Madras claiming that it was a private temple belonging exclusively to the Gowda Saraswath Brahmins, and that it therefore did not fall within the purview of the Act.
On this, the Government passed an order on June 25, 1948, Exhibit B 13, that the temple was one which was open to all Hindus generally, and that the Act would be applicable to it.
Thereupon, the trustees filed the suit, out of which the present appeal arises, for a declaration that the Sri Venkataramana temple at Moolky was not a 900 temple as defined in section 2(2) of the Act.
It was alleged in the plaint that the temple was founded for the benefit of the Gowda Saraswath Brahmins in Moolky Petah, that it had been at all times under their management, that they were the followers of the Kashi Mutt, and that it was the head of the Mutt that performed various religious ceremonies in the temple, and that the other communities had no rights to wor ship therein.
The plaint was filed on February 8, 1949.
On July 25, 1949, the Province of Madras filed a written statement contesting the claim.
Between these two dates, the Madras Legislature had enacted the Madras Temple Entry Authorisation (Amendment) Act (Madras XIII of 1949), amending the definition of ,temple ' in section 2(2) of Act V of 1947, and making consequential amendments in the preamble and in the other provisions of the Act.
According to the amended definition, a temple is "a place which is dedicated to or for the benefit of the Hindu community or any section thereof as a place of public religious worship".
This Amendment Act came into force on June 28, 1949.
In the written statement filed on July 25, 1949, the Government denied that the temple was founded exclusively for the benefit of the Gowda Saraswath Brahmins, and contended that the Hindu public generally had a right to worship therein, and that, therefore, it fell within the definition of temple as originally enacted.
It further pleaded that, at any rate, it was a temple within the definition as amended by Act XIII of 1949, even if it was dedicated for the benefit of the Gowda Saraswath Brahmins, inasmuch as they were a section of Hindu community, and that, in consequence, the suit was liable to be dismissed.
On January 26, 1950, the Constitution came into force, and thereafter, on February 11, 1950, the plaintiffs raised the further contention by way of amendment of the plaint that, in any event, as the temple was a denominational one, they were entitled to the protection of article 26, that it was a matter of religion as to who were entitled to take part in worship in a temple, and that section 3 of the Act, in so far as it provided for 901 the institution being thrown open to communities other than Gowda Saraswath Brahmins, was repugnant to article 26(b) of the Constitution and was, in consequence, ' void.
On these pleadings, the parties went to trial.
The Subordinate Judge of South Kanara, who tried the suit, held that though the temple had been originally founded for the benefit of certain immigrant families of Gowda Saraswath Brahmins, in course of time it came to be resorted to by all classes of Hindus for worship, and that accordingly it must be held to be a temple even according to the definition of temple ' in section 2(2) of the Act, as it originally stood.
Dealing with the contention that the plaintiffs had the right under article 26(b) to exclude all persons other than Gowda Saraswath Brahmins from worshipping in the temple, he held that " matters of religion " in that Article had reference to religious beliefs and doctrines, and did not include rituals and ceremonies, and that, in any event, articles 17 and 25(2) which had been enacted on grounds of high policy must prevail.
He accordingly dismissed the suit with costs.
Against this decision, the plaintiffs preferred an appeal to the High Court of Madras, A. section No. 145 of 1952.
It is now necessary to refer to another litigation inter partes, the result of which has a material bearing on the issues which arise for determination before us.
In 1951, the Madras Legislature enacted the Madras Hindu Religious and Charitable Endowments Act, (Madras XIX of 1951) vesting in the State the power of superintendence and control of temples and Mutts.
The Act created a hierarchy of officials to be appointed by the State, and conferred on them enormous powers of control and even management of institutions.
Consequent on this legislation, a number of writ applications were filed in the High Court of Madras challenging the validity of the provisions therein as repugnant to articles 19, 25 and 26 of the Constitution, and one of them was Writ Petition No. 668 of 1951 by the trustees of Sri Venkataramana Temple at Moolky.
They claimed that the institution being a denominational one, it had a right under 902 article 26(b) to manage its own affairs in matters of religion, without interference from any outside authority ' and that the provisions of the Act were bad as violative of that right.
By its judgment dated December 13, 1951, the High Court held that the Gowda Saraswath Brahmin community was a section of the Hindu public, that the Venkataramana Temple at Moolky was a denominational temple founded for its benefit, and that many of the provisions of the Act infringed the right granted by article 26(b) and were void.
Vide Devaraja Shenoy vs State of Madras (1).
Against this judgment, the State of Madras preferred an appeal to this Court, Civil Appeal No. 15 of 1953, but ultimately, it was withdrawn and dismissed on September 30, 1954.
It is the contention of the appellants that by reason of the decision given in the above proceedings, which were inter partes, the issue as to whether the temple is a denominational one must be held to have been concluded in their favour.
To resume the history of the present litigation: Subsequent to the dismissal of Civil Appeal No. 15 of 1953 by this Court, the appeal of the plaintiffs, A.S. No. 145 of 1952, was taken up for hearing, and on the application of the appellants, the proceedings in the writ petition were admitted as additional evidence.
On a review of the entire materials on record, including those relating to the proceedings in Writ Petition No. 668 of 1951, the learned Judges held it established that the Sri Venkataramana Temple was founded for the benefit of the Gowda Saraswath Brahmin community ' and that it was therefore a denominational one.
Then, dealing with the contention that section 3 of the Act was in contravention of article 26(b), they held that as a denominational institution would also be a public institution, article 25(2)(b) applied, and that, thereunder, all classes of Hindus were entitled to enter into the temple for worship.
But they also held that the evidence established that there were certain religious ceremonies and occasions during which the Gowda Saraswath Brahmins alone were entitled to participate, and that that right was protected by article 26(b).
(1) 903 They accordingly reserved the rights of the appellants to exclude all members of the public during those ceremonies and on those occasions, and these were specified in the decree.
Subject to this modification, they dismissed the appeal.
Against this judgment the plaintiffs have preferred Civil Appeal No. 403 of 1956 on a certificate granted by the High Court.
There is also before us Petition No. 327 of 1957 for leave to appeal under article 136.
That has reference to the modifications introduced by the decree of the High Court in favour of the appellants.
It must be mentioned that while the appeal was pending, there was a reorganisation of the States, and the District of South Kanara in which the temple is situated, was included in the State of Mysore.
The State of Mysore has accordingly come on record in the place of the State of Madras, and is contesting this appeal, and it is that State that has now applied for leave to appeal against the modifications.
The application is very much out of time, and Mr. M. K. Nambiar for the appellants vehemently opposes its being entertained at this stage.
It is pointed out that not merely had the State of Madras not filed any application for leave to appeal to this Court against the decision of the Madras High Court but that it accepted it as correct and actually opposed the grant of leave to the appellants on the ground that the points involved were pure questions of fact, that no substantial question of law was involved, and that the judgment of the High Court had recognised the rights of all sections of the Hindu public.
It is argued that when a party acquiesces in a judgment and deliberately allows the time for filing an appeal to lapse, it would not be a sufficient ground to condone the delay that he has subsequently changed his mind and desires to prefer an appeal.
The contention is clearly sound, and we should have given effect to it, were it not that the result of this litigation would affect the rights of members of the public, and we consider it just that the matter should be decided on the merits, so that the controversies involved might be finally settled.
We have accordingly condoned the delay, and have heard counsel on this application.
115 904 In view of this, it is unnecessary to consider the questions discussed at the Bar as to the scope of article 132, who are entitled to appeal on the strength of a certificate granted under that Article, and the ,forum in which the appeal should be lodged.
It is sufficient to say that in this case no appeal, was, in fact, filed by the respondent.
On the arguments addressed before us, the following questions fall to be decided : (1)Is the Sri Venkataramana Temple at Moolky, a temple as defined in section 2 (2) of Madras Act V of 1947 ? (2) If it is, is it a denominational temple ? (3) If it is a denominational temple, are the plain tiffs entitled to exclude all Hindus other than Gowda Saraswath Brahmins from entering into it for worship, on the ground that it is a matter of religion within the protection of article 26(b) of the Constitution ? (4) If so, is section 3 of the Act valid on the ground that it is a law protected by article 25 (2) (b), and that such a law prevails against the right conferred by article 26 (b); and (5)If section 3 of the Act is valid, are the modifications in favour of the appellants made by the High Court legal and proper ? On the first question, the contention of Mr. M. K. Nambiar for the appellants is that the temple in question is a private one, and therefore falls outside the purview of the Act.
This plea, however, was not taken anywhere in the pleadings.
The plaint merely alleges that the temple was founded for the benefit of the Gowda Saraswath Brahmins residing in Moolky Petah.
There is no averment that it is a private temple.
It is true that at the time when the suit was instituted, the definition of 'temple ' as it then stood, took in only institutions which were dedicated to or for the benefit of the Hindu public in 'general, and it was therefore sufficient for the plaintiffs to aver that the suit temple was not one of that character, and that it would have made no difference in the legal position whether the temple was a private one, or whether it was intended for the benefit of a section of the public.
But then, ,the Legislature amended the definition of 'temple ' 905 by Act XIII of 1949, and brought within it even institutions dedicated to or for the benefit of a section, of the public; and that would have comprehended a temple founded for the benefit of the Gowda Saraswath Brahmins but not a private temple.
In the written statement which was filed by the Government, the amended definition of 'temple ' was in terms relied on in answer to the claim of the plaintiffs.
In that situation, it was necessary for the plaintiffs to have raised the plea that the temple was a private one, if they intended to rely on it.
Par from putting forward such a plea, they accepted the stand taken by the Government in their written statement, and simply contended that as the temple was a denominational one, they were entitled to the protection of article 26 (b).
Indeed the Subordinate Judge states in para.
19 of the judgment that it was admitted by the plaintiffs that the temple came within the purview of the definition as amended by Act XIII of 1949.
Mr. M. K. Nambiar invited our attention to Exhibit A 2, which is a copy of an award dated November 28, 1847, wherein it is recited that the temple was originally founded for the benefit of five families of Gowda Saraswath Brabmins.
He also referred us to Exhibit A 6, the decree in the scheme suit, 0.
section No. 26 of 1915, wherein it was declared that the institution belonged to that community.
He contended on the basis of these documents and of other evidence in the case that whether the temple was a private or public institution was purely a matter of legal inference to be drawn from the above materials, and that, notwithstanding that the point was not taken in the pleadings, it could be allowed to be raised as a pure question of law.
We are unable to agree with this submission.
The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case.
And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the 906 basis of that finding.
We have accordingly declined ;to entertain this contention.
We hold, agreeing with the Courts below, that the Sri Venkataramana Temple at Mookly is a public temple, and that it is within the operation of Act V of 1947.
(2)The next question is whether the suit temple is a denominational institution.
Both the Courts below have concurrently held that at the inception the temple was founded for the benefit of Gowda Saraswath Brahmins; but the Subordinate Judge hold that as in course of time public endowments came to be made to the temple and all classes of Hindus were taking part freely in worship therein, it might be presumed that they did so as a matter of right, and that, therefore, the temple must be held to have become dedicated to the Hindu public generally.
The learned Judges of the High Court, however, came to a different conclusion.
They followed the decision in Devaraja Shenoy vs State of Madras (supra), and hold that the temple was a denominational one.
The learned SolicitorGeneral attacks the correctness of this finding on two grounds.
He firstly contends that even though the temple might have been dedicated to the Gowda Saraswath Brahmins, that would make it only a communal and not a denominational institution, unless it was established that there were religious tenets and practices special to the community, and that that had not been done.
Now, the facts found are that the members of this community migrated from Gowda Desa first to the Goa region and then to the south, that they carried with them their idols, and that when they were first settled in Moolky, a temple was founded and these idols were installed therein.
We are there.
fore concerned with the Gowda Saraswath Brahmins not as a section of a community but as a sect associated with the foundation and maintenance of the Sri Venkataramana Temple, in other words, not as a mere denomination, but as a religious denomination.
From the evidence of P. W. 1, it appears that the Gowda Saraswath Brahmins have three Gurus, that those in Moolky Petah are followers of the head of the Kashi Mutt, and that it is he that performs some of the 907 important ceremonies in the temple.
Exhibit A is a document of the year 1826 27.
That shows that the head of the Kashi Mutt settled the disputes among the Archakas, and that they agreed to do the puja under his orders.
The uncontradicted evidence of P. W. I also shows that during certain religious ceremonies, persons other than Gowda Saraswath Brahmins have been wholly excluded.
This evidence leads irresistibly to the conclusion that the temple is a denominational one, as contended for by the appellants.
The second ground urged on behalf of the respondent is that the evidence discloses that all communities had been freely admitted into the temple, and that though P. W. I stated that persons other than Gowda Saraswath Brahmins could enter only with the permission of the trustees, there was no instance in which such permission was refused.
It was contended that the inference to be drawn from this was that the Hindu public generally had a right to worship in the temple.
The law on the subject is well settled.
When there is a question as to the nature and extent of a dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible; and proof of long and uninterrupted user would be cogent evidence of the terms thereof.
Where, there.
fore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well.
But where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well.
For, as observed in Babu Bhagwan Din vs Gir Har Saroop (1), "it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away".
On the findings of the Court (1) (1939) L. R. 67 I. A. 1. 908 below that the foundation was originally for the benefit of the Gowda Saraswath Brahmin community, the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of the dedication into one for the public generally.
On a consideration of the evidence, we see no grounds for differing from the finding given by the learned Judges in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda Saraswath Brahmins, supported as it is by the conclusion reached by another Bench of learned Judges in Devaraja Shenoy vs State of Madras (supra).
In this view, there is no need to discuss whether this issue is res judicata by reason of the, decision in Writ Petition No. 668 of 1951.
(3) On the finding that the Sri Venkataramana Temple at Moolky is a denominational institution founded for the benefit of the Gowda Saraswath Brahmins, the question arises whether the appellants are entitled to exclude other communities from entering into it for worship on the ground that it is a matter of religion within the protection of article 26 (b).
It is argued by the learned Solicitor General that exclusion of persons from entering into a temple cannot ipso facto be regarded as a matter of religion, that whether it is so must depend on the tenets of the particular religion which the institution in question represents, and that there was no such proof in the present case.
Now, the precise connotation of the expression "matters of religion " came up for consideration by this Court in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), and it was held therein that it embraced not merely matters of doctrine and belief pertaining to the religion but also the practice of it, or to put, it in terms of Hindu theology, not merely its Gnana but also its Bakti and Karma Kandas.
The following observations of Mukherjea J., (as he then was) are particularly apposite to the present discussion : " in the first place, what constitutes the essential (1) ; 909 part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
If the tenets of any religious sect of the Hindus prescribe ' that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26 (b).
" It being thus settled that matters of religion in article 26 (b) include even practices which are regarded by the community as part of its religion, we have now to consider whether exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu Ceremonial Law.
There has been difference of opinion among the writers as to whether image worship had a place in the religion of the Hindus, as revealed in the Vedas.
On the one hand, we have hymns in praise of Gods, and on the other, we have highly philosophical passages in the Upanishads des cribing the Supreme Being as omnipotent, omnicient and omnipresent and transcending all names and forms.
When we come to the Puranas, we find a marked change.
The conception had become established of Trinity of Gods, Brahma, Vishnu and Siva as manifestations of the three aspects of creation, preservation and destruction attributed to the Supreme Being in the Upanishads, as, for example, in the following passage in the Taittiriya Upanishad, Brigu Valli, First Anuvaka: " That from which all beings are born, by which they live and into which they enter and merge.
" The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation.
These injunctions have had such a powerful hold over the minds of the 910 people that daily worship of the deity in temple came to be regarded as one of the obligatory duties of a Hindu. 'It was during this period that temples were constructed all over the country dedicated to Vishnu, Rudra, Devi, Skanda, Ganesha and so forth, and wor ship in the temple can be said to have become the practical religion of all sections of the Hindus ever since.
With the growth in importance of temples and of worship therein, more and more attention came to be devoted to the ceremonial law relating to the construction of temples, installation of idols therein and conduct of worship of the deity.
and numerous are the treatises that came to be written for its exposition.
These are known as Agamas, and there are as many as 28 of them relating to the Saiva temples, the most important of them being the Kamikagama, the Karanagama and the Suprubedagama, while the Vikhanasa and the Pancharatra are the chief Agamas of the Vaishnavas.
These Agamas, contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship.
The following passage from the judgment of Sadasiva Aiyar J. in Gopala Muppanar vs Subramania Aiyar (1), gives a summary of the prescription contained in one of the Agamas: " In the Nirvachanapaddhathi it is said that Sivadwijas should worship in the Garbagriham, Brahmins from the ante chamber or Sabah Mantabam, Kshatriyas, Vysias and Sudras from the Mahamantabham, the dancer and the musician from the Nrithamantabham east of the Mahamantabham and that castes yet lower in scale should content themselves with the sight of the Gopuram.
" The other Agamas also contain similar rules.
According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and purificatory ceremonies (known as Samprokshana) have to be performed for restoring the sanctity of the shrine.
Vide judgment of (1) 911 Sadasiva Aiyar J. in Gopala Muppanar vs Subramania Aiyar (supra).
In Sankaralinga Nadan vs Raja Rajeswara Dorai(1), it was held by the Privy Council ' affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein, according to the Agamas and the custom of the temple was guilty of breach of trust.
Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion.
The conclusion is also implicit in article 25 which after declaring that all persons are entitled freely to profess, practice and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.
We have dealt with this question at some length in view of the argument of the learned Solicitor General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism.
We must accordingly hold that if the rights of the appellants have to be determined solely with reference to article 26 (b), then section 3.
of Act V of 1947, should be held to be bad as infringing it.
(4) That brings us on to the main question for deter mination in this appeal, whether the right guaranteed under article 26 (b) is subject to a law protected by article 25 (2) (b) throwing the suit temple open to all classes and sections of Hindus.
We must now examine closely the terms of the two articles.
article 25, omitting what is not material, is as follows: " (1) Subject to public, order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law . . . . . . . . . . (1) (1908) L.R. 35 I.A. 176.
116 912 (b)providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus".
Article 26 runs as follows: "Subject to public order, morality and health.
every religious denomination or any section thereof shall have the right (a)to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
" We have held that matters of religion in article 26(b) include the right to exclude persons who are not entitled to participate in the worship according to the tenets of the institution.
Under this Article, therefore, the appellants would be entitled to exclude all persons other than Gowda Saraswath Brahmins from entering into the temple for worship.
Article 25(2)(b) enacts that a law throwing open public temples to all classes of Hindus is valid.
The word `public 'includes, in its ordinary acceptation, any section of the public, and the suit temple would be a public institution within article 25(2)(b), and section 3 of the Act would therefore be within its protection.
Thus, the two Articles appear to be apparently in conflict.
Mr. M. K. Nambiar contends that this conflict could be avoided if the expression "religious institutions of a public character" is understood as meaning institutions dedicated to the Hindu community in general, though some sections thereof might be excluded by custom from entering into them, and that, in that view, denominational institutions founded for the benefit of a section of Hindus would fall outside the purview of article 25(2)(b) as not being dedicated for the Hindu community in general.
He sought support for this contention in the law relating to the entry of excluded classes into Hindu temples and in the history of legislation with reference thereto, in Madras.
According to the Agamas, a public temple enures, 913 where it is not proved to have been founded for the benefit of any particular community, for the benefit of all Hindus including the excluded classes.
But the extent to which a person might participate in the worship therein would vary with the community in which he was born.
In Venkatachalapathi vs Subbarayadu (1), the following statement of the law was quoted by the learned Judges with apparent approval:, "Temple, of course, is intended for all castes, but there are restrictions of entry.
Pariahs cannot go into the court of the temple even.
Sudras and Baniyas can go into the hall of the temple.
Brahmins can go into the holy of the holies.
" In Gopala Muppanar vs Subramania Aiyar (Supra), Sadasiva Aiyar J. observed as follows at p. 258: "It is clear from the above that temples were intended for the worship of people belonging to all the four castes without exception.
Even outcastes were not wholly left out of the benefits of temple worship, their mode of worship being however made subject to severe restrictions as they could not pass beyond the Dwajastambam (and some times not beyond the temple outer gate) and they could not have a sight of the images other than the procession images brought out at the times of festivals.
" The true Position, therefore, is that the excluded classes were all entitled to the benefit of the dedication, though their actual participation in the worship was insignificant.
It was to remove this anomaly that legislation in Madras was directed for near a decade.
First came the Malabar Temple Entry Act (Madras XX of 1938).
Its object was stated to be " to remove the disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into, and offering worship in, Hindu temples".
Section 2(4) defined 'temple ' as " a place which is used as a place of public worship by the Hindu community generally except excluded classes. .
Sections 4 and 5 of the Act authorised the trustees to throw such temples open to persons belonging to the excluded classes under (1) (1890) I.L.R.113 Mad.
914 certain conditions.
This Act extended only to the District of Malabar.
Next came the Madras Temple Entry Authorisation and Indemnity Act (Madras Act XXII of 1939).
The preamble to the Act states that " there has been a growing volume of public opinion demanding the removal of disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into and offering worship in Hindu temples ", and that " it is just and desirable to authorize the trustees in charge of such temples to throw them open to. the said classes ".
Section 3 of the Act authorised the trustees to throw open the temples to them.
This Act extended to the whole of the Province of Madras.
Then we come to the Act, which has given rise to this litigation, Act V of 1947.
It has been already mentioned that, as originally passed, its object was to lift the ban on the entry into temples of communities which are excluded by custom from entering into them, and I temple ' was also defined as a place dedicated to the Hindus generally.
Now, the contention of Mr. Nambiar is that article 25(2)(b) must be interpreted in the background of the law as laid down in Gopala Muppanar vs Subramania Aiyar (supra) and the definition of 'temple ' given in the statutes mentioned above, and that the expression " religious institutions of a public character " must be interpreted as meaning institutions which are dedicated for worship to the Hindu community in general, though certain sections thereof were prohibited by custom from entering into them, and that, in that view, denominational temples will fall outside article 25(2)(b).
There is considerable force in this argument.
One of the problems which had been exercising the minds of the Hindu social reformers during the period preceding the Constitution was the existence in their midst of communities which were classed as untouchables.
A custom which denied to large sections of Hindus the right to use public roads and institutions to which all the other Hindus had a right of access, purely on grounds of birth could not be considered reasonable and defended on any sound democratic 915 principle, and efforts were being made to secure its abolition by legislation.
This culminated in the enactment of article 17, which is as follows: " Untouchability ' is abolished and its practice in any form is forbidden.
The enforcement of any disability arising out of ' Untouchability ' shall be an offence punishable in accordance with law." Construing article 25(2)(b) in the light of article 17, it is arguable that its object was only to permit entry of the excluded classes into temples which were open to all other classes of Hindus, and that that would exclude its application to denominational temples.
Now, denominational temples are founded, ex hypothesis for the benefit of particular sections of Hindus, and so long as the law recognises them as valid and article 26 clearly does that what reason can there be for permitting entry into them of persons other than those for whose benefit they were founded ? If a trustee diverts trust funds for the benefit of persons who are not beneficiaries under the endowment, he would be committing a breach of trust, and though a provision of the Constitution is not open to attack on the ground that it authorises such an act, is it to be lightly inferred that article 25(2)(b) validates what would, but for it, be a breach of trust and for no obvious reasons of policy, as in the case of article 17 ? There is, it should be noted, a fundamental distinction between excluding persons from temples open for purposes of worship to the Hindu public in general on the ground that they belong to the excluded communities and excluding persons from denominational temples on the ground that they are not objects within the benefit of the foundation.
The former will be hit by article 17 and the latter protected by article 26, arid it is the contention of the appellants that article 25(2)(b) should not be interpreted as applicable to both these categories and that it should be limited to the former.
The argument was also advanced as further supporting this view, that while article 26 protects denominational institutions of not merely Hindus but of all communities such as Muslims and Christians, article 25(2)(b) is limited in its operation to Hindu temples, and that it could 916 not have been intended that there should be imported into article 26(b) a limitation which would apply to institutions of one community and not of others.
Article 26, it was contended, should therefore be construed as falling wholly outside article 25(2)(b), which should be limited to institutions other than denominational ones.
The answer to this contention is that it is impossible to read any such limitation into the language of article 25 (2) (b).
It applies in terms to all religious institutions of a public character without qualification or reserve.
As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised therein.
The language of the Article being plain and unambiguous, it is not open to us to read into it limitations which are not there, based on a priori reasoning as to the probable intention of the Legislature.
Such intention can be gathered only from the words actually used in the statute; and in a Court of law, what is unexpressed has the same value as what is unintended.
We must therefore hold that denominational.
institutions are within article 25 (2) (b).
It is then said that if the expression " religious institutions of a public character" in article 25 (2) (b) is to be interpreted as including denominational institutions, it would clearly be in conflict with article 26 (b), and it is argued that in that situation, article 26 (b) must, on its true construction, be held to override article 25 (2) (b).
Three grounds were urged in support of this contention, and they must now be examined.
It was firstly argued that while article 25 was stated to be " subject to the other provisions of this Part" (Part 111), there was no such limitation on the operation of article 26, and that, therefore, article 26 (b) must be held to prevail over article 25 (2) (b).
But it has to be noticed that the limitation " subject to the other provisions of this Part" occurs only in cl.
(1) of article 25 and not in el.
Clause (1) declares the rights of all persons to freedom of conscience and the right freely to profess, practise and propagate religion.
It is t is right that 917 is subject to the other provisions in the Fundamental Rights Chapter.
One of the provisions to which the right declared in article 25 (1) is subject is article 25 (2), A law, therefore, which falls within article 25 (2) (b) will control the right conferred by article 25 (1), and the limitation in article 25 (1) does not apply to that law.
It is next contended that while the right conferred under article 26(d) is subject to any law which may be passed with reference thereto, there is no such restriction on the right conferred by article 26(b).
It is accordingly argued that any law which infringes the right under article 26 (b) is invalid, and that section 3 of Act V of 1947 must accordingly be held to have become void.
Reliance is placed on the observations of this Court in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra) at page 1023, in support of this position.
It is undoubtedly true that the right conferred under article 26(b) cannot be abridged by any legislation, but the validity of section 3 of Act V of 1947 does not depend on its own force but on article 25(2)(b) of the Constitution.
The very Constitution which is claimed to have rendered section 3 of the Madras Act void as being repugnant to article 26(b) has, in article 25(2)(b), invested it with validity, and, therefore, the appellants can succeed only by establishing that article 25(2)(b) itself is inoperative as against article 26(b)).
And lastly, it is argued that whereas article 25 deals with the rights of individuals, article 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by article 25(2)(b).
This contention ignores the true nature of the right conferred by article 25(2)(b).
That is a right conferred on "all classes and sections of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under article 25(1) or against a denomination under article 26(b).
The fact is that though article 25(1) deals with rights of individuals, article 25(2) is much wider in 918 its contents and has reference to the rights of communities, and controls both article 25(1) and article 26(b).
The result then is that there are two provisions of equal authority, neither of them being subject to the other.
The question is how the apparent conflict between them is to be resolved.
The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both.
This is what is known as the rule of harmonious construction.
Applying this rule, if the contention of the appellants is to be accepted, then article 25(2)(b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them.
On the other hand, if the contention of the respondents is accepted, then full effect can be given to article 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under article 25(2)(b) will prevail.
While, in the former case, article 25(2)(b) will be put wholly out of operation, in the latter, effect can be given to both that provision and article 26(b).
We must accordingly hold that article 26(b) must be read subject to article 25(2)(b).
(5)It remains to deal with the question whether the modifications made in the decree of the High Court in favour of the appellants are valid.
Those modifications refer to various ceremonies relating to the worship of the deity at specified times each day and on specified occasions.
The evidence of P. W. I establishes that on those occasions, all persons other than Gowda Saraswath Brahmins were excluded from participation thereof.
That evidence, remains un contradicted, and has been accepted by the learned Judges, and the correctness of their finding on this point has not been challenged before us.
It is not in dispute that the modifications aforesaid relate, according to the view taken by this Court in The Commisssioners Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 919 (supra), to matters of religion, being intimately connected with the worship of the deity.
On the finding that the suit temple is a denominational one, the modifications made in the High Court decree would be within the protection of article 26(b).
The learned Solicitor General for the respondents assails this portion of the decree on two grounds.
He firstly contends that the right to enter into a temple which is protected by article 25(2)(b) is a right to enter into it for purposes of worship, that that right should be liberally construed, and that the modifications in question constitute a serious invasion of that right, and should be set aside as unconstitutional.
We agree that the right protected by article 25(2)(b) is a right to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public.
But it does not follow from this that that right is absolute and unlimited in character.
No member of the Hindu public could, for example, claim as part of the rights protected by article 25(2)(b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services, which the Archakas alone could perform.
It is again a well known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times, the public in general are free to participate in the worship.
Thus, the right recognised by article 25(2)(b) must necessarily be subject to some limitations or regulations, and one such limitation or regulation must arise in the process of harmonising the right conferred by article 25(2)(b) with that protected by article 26(b).
We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in article 26(b), must yield to the overriding right declared by article 25(2)(b) in favour of the public to enter into a temple for worship.
But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of 117 920 the foundation to the members of the denomination, ,then the question is not whether article 25(2)(b) over rides that right so as to extinguish it, but whether it is possible so to regulate the rights of the persons protected by article 25(2)(b) as to give effect to both the rights.
If the denominational rights are such that to give effect to them would substantially reduce the right conferred by article 25(2)(b), then of course, on our conclusion that article 25(2)(b) prevails as against article 26(b), the denominational rights must vanish.
But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe article 25(2)(b) as to give effect to article 26(b) and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected.
The question then is one of fact as to whether the rights claimed by the appellants are strictly denominational in character, and whether after giving effect to them, what is left to the public of the right of worship is substantial, That the rights allowed by the High Court in favour of the appellants are purely denominational clearly appears from the evidence on record.
P.W. 1 put forward two distinct rights on behalf of the Gowda Saraswath Brahmins.
He firstly claimed that no one except members of his community had at any time the right to worship in the temple except with their permission; but he admitted that the members of the public were, in fact, worshipping and that permission had never been refused.
This right will be hit by article 25 (2) (b), and cannot be recognised.
P.W. I put forward another and distinct right, namely, that during certain ceremonies and on special occasions, it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded.
This would clearly be a denomi national right.
Then, the question is whether if this right is recognised, what is left to the public of their 921 right under article 25(2)(b) is substantial.
The learned Solicitor General himself conceded that even apart from the special occasions reserved for the Gowda Saraswath Brahmins, the other occasions of worship were sufficiently numerous and substantial, and we are in agreement with him.
On the facts, therefore, it is possible to protect the rights of the appellants on those special occasions, without affecting the substance of the right declared by article 25( 2)(b); and, in our judgment, the decree passed by the High Court strikes a just balance between the rights of the Hindu public under article 25(2)(b) and those of the denomination of the appellants under article 26(b) and is not open to objection.
Then, it is said that the members of the public are not parties to the litigation, and that they may not be bound by the result of it, and that, therefore, the matter should be set at large.
Even if the members of the public are necessary parties to this litigation, that cannot stand in the way of the rights of the appellants being declared as against the parties to the action.
Moreover, the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple.
While the action was pending, the Constitution came into force, and as against the right claimed by the plaintiffs under article 26(b), the Government put forward the rights of the Hindu public under article 25 (2)(b).
There has been a full trial of the issues involved, and a decision has been given, declaring the rights of the appellants and of the public.
When the appellants applied for leave to appeal to this Court, that application was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree recognising the rights of all sections of the public.
In view of this, there is no force in the objection that the public are not, as such, parties to the suit.
It is their rights that have been agitated by the Government and not any of its rights.
In the result, both the appeal and the application for special leave to appeal must be dismissed.
922 The parties will bear their own costs throughout.
The appellants will take their costs out of the temple funds.
Appeals Dismissed.
| An application was filed seeking eviction of the tenant appellant by the landlord respondent on various grounds.
The Rent Controller granted an order for eviction only under Section 14(1)(e) of the Delhi Rent Control Act for bona fide use and occupation.
The order of the Rent Controller for eviction was confirmed in appeal by the Tribunal.
Before the High Court, it was contended on behalf of the appellant that as the lease of the plot on which the build ing stood was cancelled by the DDA, the landlord respondent ceased to be the owner thereof and, therefore, the require ment of Section 14(1)(e) was not satisfied and the respond ent was not entitled to the decree for eviction.
The High Court held that the landlord, whose lease had been terminat ed, but was in possession, continued to be a tenant holding over and, therefore, he continued to be the owner, and maintained the decree for eviction.
In the appeal before this Court, it was contended on behalf of the appellant that in order to get a decree for eviction on the ground of bona fide requirement, the land lord must establish that he was the owner of such property, that where the property was built up on a plot of land taken on lease from the Delhi Development Authority, it could not be said that the landlord was the owner of the property and that as the lease had been terminated, the landlord could not claim to be the owner of the property, and, therefore, the decree for eviction on ground of bona fide requirement could not be maintained.
1076 On behalf of the respondent it was contended that al though notice was issued, but subsequently the matter re mained stayed and the respondent landlord continued to be in possession and did not cease to be the owner of the proper ty, that whole of the premises in question did not stand on the plot, lease of which had been cancelled by DDA and a major part of.
the premises stood on another plot which continued to be on lease in favour of the respondent, and that the tenant was estopped from challenging the title of the landlord, as the relationship of the landlord and tenant was admitted and it was not open to the tenant to contend that the respondent landlord had no title to the property.
Dismissing the appeal, this Court HELD: The word "owner" has not been defined in the Delhi Rent Control Act.
[1081E] The term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act.
The Act has been enacted for protection of the tenants.
But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds.
[1081G H; 1082D] Ordinarily, the concept of the ownership may be abso lute ownership in the land as well as of the structure standing thereon.
But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State.
The legislature, when it used the term "owner" in section 14(1)(e), did not think of ownership as absolute ownership.
[1081F G] The meaning of the term "owner" is vis a vis the tenant i.e. the owner should be something more than the tenant.
In cases where the plot of land is taken on lease, the struc ture is built by the landlord and he is the owner of the structure.
So far as the land is concerned, he holds the long lease and as against the tenant he will fail within the ambit of the meaning of the term "owner" as contemplated under section 14(1)(e).
[1082B C] In the instant case, although there were some proceed ings for the cancellation of the lease, the lease had not come to an end.
No steps have been taken for dispossesion and only the formality of depositing the penalities and filing of the Indemnity Bond remained to be done, on ful filling which the lease would he restored in the name of the legal 1077 representatives.
Therefore, it could not be said that the respondent landlord had ceased to be the owner of the prem ises.
[1085G H, 1086B] T.C. Rekhi vs Smt.
Usha Gujaral, [1971] Rent Control Journal Page 322 at 326, referred to.
|
ivil Appeal No. 4 177 of 1989.
From the Judgment and Order dated 28.3.1989 of the Madras High Court in O.S.A. No. 48 of 1989.
K.K. Venugopal, K. Chandra Mouli, Ms. Meenakshi Sundaram and K.K. Mani for the Appellant.
Dr. Y.S. Chitale, V.G. Pragasam, Satya Mitra Garg, V. Prakash and R. Venkataramani for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
The question raised in this appeal is whether the agent after revocation of his authority is entitled to remain in possession of the premises of the principal and interfere with the business thereof.
The learned single Judge of the Madras High Court in Original Suit C.S. No. 1317 of 1988 has granted temporary injunction restraining the respondent from interfering with the appellant 's transport business.
But the Division Bench by judgment delivered on March 28, 1989, vacated that temporary injunction.
The present appeal is directed against the judgment of the Division Bench.
The facts are substantially undisputed.
The appellant company under the name as Southern Roadways Ltd. is engaged in the business of transport of goods and parcels to differ ent places in Southern India.
It has appointed commission agents at various stations for the purpose of carrying on its business.
S.M. Krishnan respondent was one such agent appointed at Madras city.
Clause III of the agreement by which he was appointed provides that the respondent should arrange a suitable godown and engage employees.
Clause XI provides for his removal from service at any time without notice.
It also provides that upon removal of the agent the company could occupy the godown.
The company could also utilise the services of employees engaged by the respondent.
As per the agreement perhaps at the 413 suggestion of the respondent, the Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras.
The godown was put in possession of the respondent for the purpose of carrying on his agency business of the company.
In the course of the company 's audit, it was discovered that the respondent had mismanaged the business and misap propriated the income of the company.
By letter dated Octo ber 13, 1988, the company terminated his agency with effect from October 14, 1988.
He was informed that the company would be taking possession of the godown and carrying on the business on its own.
By subsequent letter, he was also intimated that the company has taken possession of the godown on October 15, 1988 and another agent called R. Sundarajan, was appointed in his place.
The respondent however, prevented R. Sundarajan and also the company from carrying on business at the godown premises.
The company, therefore, had to institute a suit for declaration of its right to carry on business in the said premises.
Permanent injuction restraining the respondent from interfering was also sought for.
The suit was based on two separate grounds.
The first related to legal right of the company to carry on its business after termination of agency of the respondent; the second concerned the factum of taking actual possession of the premises on October 15, 1988.
Pending suit, the company moved the High Court for temporary injunction.
The temporary injunction restraining the respondent from interfering with the possession of the premises and the business thereof.
The learned single Judge (M. Srinivasan, J.) acceded to that request.
The judge said: "As pointed out already, in this case, there is no denial of the lease arrangement between the owner of the premises and the plaintiff.
The defendant does not claim to be the owner of the premises nor does he put forward any rival title as against the plaintiff.
The only claim of the defendant is that he is in pos session and that he has been paying the rent to the owner.
He does not claim that he took possession as a lessee from the owner.
Though there is a specific averment in the plaint and the affidavit of the plaintiff that there is a lease arrangement between the plaintiff and the owner, there is no denial of the same by the defendant.
In these circumstances, the defendant cannot claim that he is in posses sion pursuant to any right enured in him.
" 414 As to the possession of the premises, he said: "The claim made by the plaintiff that it took possession on 15.10.1988 is acceptable in view of the fact that the defendant was never the lessee under the owner of the premises.
The defendant was only looking after the business as an agent of the plaintiff and as such he was permitted to enter the premises and he cannot claim independent possession.
" Finally, he concluded: "In the circumstances of the case, there can be no doubt that the plaintiff has been in legal and actual possession of the premises on the date of suit.
The fact that the business has been temporarily shifted to another place in view of the threat meted out to the plain tiff 's agent will not disentitle the plaintiff to get injunction.
The plaintiff is certainly entitled to carry on its business at No. 10, Srinivasan Road, T. Nagar, Madras 600017, having taken the premises on lease.
It is ot open to the defendant to prevent the plaintiff from carrying on such business.
" The respondent was thus restrained by means of temporary injunction from interfering with the company 's transport business in goods and parcels at the suit premises.
The respondent took up the matter in appeal before the Division Bench of the High Court.
The Division Bench con sisting of Sathidev and Padmini Jesudurai, JJ., accepted the appeal and vacated the temporary injuction.
The conclusion of learned Judges is largely based on the actual possession of the premises claimed by the Company.
They found it hard to accept that claim and observed: "The plaintiff will not be entitled to the relief sought for unless it establishes that its claim that possession of the property was handed over to it on 15.10.1984 is true.
The defendant has consistently been contending that possession was not handed over to the plaintiff on 15.10.1984 and that he continues to be in actual and physical possession of the property even now.
No material has been placed before the Court to substantiate the claim of the plaintiff that possession was taken over on 15.10.1984.
" 415 They continued: "In the face of these documents and in the absence of any material to show that posses sion of the suit property was taken by the plaintiff on 15.10.1988, it would be impossi ble for this Court to grant the plaintiff, the relief of injuction." As to the company 's right to treat the respondent as trespasser, the Division Bench observed: "Before the defendant could be characterised as a trespasser, the validity of the termina tion of the agency and the rights of the parties, following that, have also to be determined and this could be done only during trial." At the outset, we may state that we are not so much concerned with the rival claims relating to actual posses sion of the suit premises.
Indeed, that is quite irrelevant for the purpose of determining the rights of the company to carry on its business.
Mr. Venugopal, learned counsel for the appellant also discreetly did not advert to that contro versy.
He, however, rested his case on certain facts which are proved or agreed.
They may be stated as follows: The company was and is the tenant of the suit premises and has been paying rent to the owner.
The lease in respect of the premises has been renewed up to November 22, 1983.
It was the company which has executed the lease and not the respondent.
The respondent as agent was allowed to remain in possession of the premises.
It was only for the purpose of carrying on company 's business.
His agency has been termi nated and his authority to act for the company has been put an end to.
These facts are indeed not disputed.
On these facts the contention of counsel is that when the agency has been terminated, the respondent has no legal right to remain in the premises or to interfere with the business activities of the company.
The force of this argument cannot be gainsaid.
Counsel, in our opinion, appears to be on terra firma.
The principal has right to carry on business as usual after the removal of his agent.
The Courts are rarely willing to imply a term lettering such freedom of the principal unless there is some agreement to the contrary.
The agreement between the parties in this case does not confer right on the respondent to continue in possession of the suit premises even after termination of agency.
Nor does it preserve right for him to interfere with the com 416 pany 's business.
On the contrary, it provides that the respondent could be removed at any time without notice and after removal the company could carry on its business as usual.
The company under the terms of the agreement is, therefore, entitled to assert and exercise its right which cannot be disputed or denied by the respondent.
Even otherwise, under law revocation of agency by the principal immediately terminates the agent 's actual authori ty to act for the principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the principal 's property under section 22 1.
The agent 's lien on principal 's property recognised under section 22 1 could be exercised only when there is no agreement inconsistent with the lien.
In the present case the terms of the agreement by which the re spondent was appointed as agent, expressly authorises the company to occupy the godown upon revocation of agency.
Secondly, the lien in any event, in our opinion, cannot be utilised or taken advantage of to interfere with principal 's business activities.
There is yet another significant factor to be borne in mind when we deaf with the rights of an agent.
An agent who receives property or money from or for his principal obtains to interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
Long ago, Lord Cottenham, L.C. (Foley vs Hill; , 1843 60 All E.R. (Reprint) 16 at 198) said: ".
So it is with regard to an agent dealing with property; he obtains no interest himself in the subject matter beyond his remuneration; he is dealing throughout for another, and though he is not a trustee according to the strict technical meaning of the word, he is quasi a trustee for that particular transac tion for which he is engaged.
" Out of this practice there has emerged a rule, which is a normal incident of agency, that an agent cannot deny principal 's title to property nor he can convert it into other kind or use.
Fridman 's Law of Agency (5th Edition page 150) also supports this view: "Respect of Principal 's title: "The agent cannot deny the title of the prin cipal to goods, 417 money, or land possessed by the agent on behalf of the principal.
The possession of the agent is the possession of the principal for all purposes, including the acquisition of title under statutes of limitation, even where in fact the agent, though in ignorance of his claim, is entitled to the land, unless the agent possesses not as agent but on his own behalf, in which event his possession will be personal and not for his principal." As to the nature of agent 's possession in respect of principal 's property, this Court in a recent judgment ren dered in Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 said at 643: "It is well settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship defend ant 1 cannot be permitted to claim his own possession.
This aspect was well emphasised in David Lyell vs John Lawson Kennedy, [1889] 14 HL (E) 437 where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate ear marked account continued to do so even after the death of the owner.
After more than 12 years of the owner 's death his heir 's assignee brought the action against the agent for possession and the agent defendant pleaded adverse possession and limitation.
The plain tiff succeeded in the first court.
But the action was dismissed by the Court of Appeal.
The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf, were those rents received after Ann Duncan 's death? Not by the respond ent for himself, or on his own behalf, any more than during her lifetime." Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney.
Another English case of Williams vs Pott, LR 12 Eq Cas 149, arising out of the circumstances similar to the.
present case was more interesting.
The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother.
After the agent 's death his heir claimed the estate.
The mother (the principal) had also by then died after pur porting by her will to devise the disputed lands to the defendants upon certain 418 trusts.
The claim of the plaintiff was dis missed on the plea of adverse possession.
Lord Romilly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: "The property is mine; I claim the rents, and I shall apply the rents for my own purposes.
" The agent had thus lost his title by reason of his own possession as agent of the principal.
" We wish to add that it is not every agent who is in a fiduciary position vis a vis his principal.
For example is A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply.
Like wise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise.
What we want to emphasise is, in all cases of general agency, the rela tion may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent.
It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies.
Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation.
(See Modern Law Review, Vol.
17 pp. 31 32).
The crux of the matter is that an agent holds the prin cipal 's property only on behalf of the principal.
He ac quires no interest for himself in such property.
He cannot deny principal 's title to property.
Nor he can convert it into any other kind or use.
His possession is the possession of the principal for all purposes.
As the Kerala High Court in Narayani Amma vs Bhaskaran Pillai, AIR 1969 Kerala 214, observed at 217: "The agent has no possession of his own.
What is called a caretaker 's possession is the possession of the agent.
" So much is, we think, established law as regards agent 's right to property belonging to the principal.
Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions: (i) Abdul Nabi Sahib vs Bajab Sahib and Anr., AIR 1944 Mad 221 and (ii) 419 Jemma vs Raghu, AIR 1977 Orissa 12.
In the former case of the Madras High Court, the suit was for a permanent injunc tion restraining the defendant from interfering with the plaintiff 's peaceful possession and enjoyment of the suit properties and performance of the religious services.
The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as donee.
He has also set up title by adverse possession.
On these claims, Kunhi Raman, J., observed: "Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relief upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent." If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law.
We have al ready stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non suit the principal on the possessory title as agent.
The second case in Jemma vs Raghu, referred to us is the decision of the Orissa High Court.
That case dealt with the general principle that the plaintiff who is not in posses sion of the suit premises is not entitled to relief of injunction.
The plaintiff must ask for recovery of posses sion.
But this principle has no application with regard to dispute between the principal and agent in respect of prin cipal 's property.
In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the company 's business.
The case, therefore, deserves the grant of temporary injunction.
The learned single Judge of the High Court in our judgment, was justified in issuing the injunction.
The Division Bench of the High Court was clearly in error in vacating it.
In the result, we allow the appeal with costs.
In rever sal of the order of the Division Bench, we restore the temporary injunction granted by learned single Judge of the High Court.
Y. Lal Appeal allowed.
| The appellant company is engaged in the business of transport of goods and parcels in Southern India and for that purpose has appointed agents at various stations.
The respondent was one such agent appointed at Madras.
As pro vided in clause III of the Contract, the respondent was to arrange a suitable godown and engage employees.
The Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras and the same was put in possession of the respondent for the purpose of carrying on his agency business of the Company.
During the course of the Company 's audit, it transpired that the Respondent not only mismanaged the business but had misappropriated some of the income of the company.
The appellant, therefore, terminated his agency with effect from 14.10.1988 in terms of clause XI of the Contract and in formed him that the company would be taking possession of the Godown premises for carrying on the business on its own, as provided in the contract.
Thereafter the respondent was informed by a letter that the company has taken possession of the Godown on 15.10.88 and another agent R. Sundarajan had been appointed in his place.
But the respondent prevent ed R. Sundarajan and also the company from carrying on the business at the godown premises.
The company, therefore, filed a suit for declaration of its right to carry on the business in the premises and for a permanent injunction restraining the respondent from interferring with its pos session on the ground that after the termination of the agency of the respondent, the company acquired a right to carry on the business of the company and further the company had since acquired the possession of the premises on 15.10.88.
Pending decision of the suit, the appellant prayed for the issuance of a temporary injunction.
The Trial Judge of the Madras High Court granted temporary injuction re straining the 411 respondent from interfering with the appellant 's business but on appeal by the respondent the Division Bench of the Madras High Court vacated that temporary injunction.
Hence this appeal by the appellant company.
Allowing the appeal, this Court, HELD: Under law, revocation of agency by the Principal immediately terminates the agent 's actual authority to act for the Principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the Principal 's property under section 221.
The agent 's lien on Principal 's property recog nised under section 221 could be exercised only when there is no agreement inconsistent with the lien.
[416B C] In the present case, the terms of the agreement by which the respondent was appointed as agent, expressly authorise the company to occupy the godown upon revocation of agency.
Secondly the lien, in any event, cannot be utilised or taken advantage of to interfere with Principal 's business activi ties.
[416C D] An agent who receives property or money from or for his Principal obtains no interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
[416E] (See Foley vs Hill, All E.R. Reprint 16 at 198; It is not every agent who is in a fiduciary position vis a vis his principal.
For example if 'A ' appoints 'B ' to be his agent merely to sign a memorandum and places no particular trust in 'B ' the doctrine of fiduciary relations would not apply.
Likewise where the Principal authorises an agent to do particular and specified acts, the doctrine of fiduciary relation may not arise.
[418C D] In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the Company 's business.
The case, therefore, deserves the grant of temporary injunction.
[419F G] 412 Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 at 643; Narayani Amma vs Bheska ran Pillai, AIR 1969 Kerala 214; Abdul Nabi Sahib vs Bajab Sahib & Anr., AIR 1944 Mad 221 and Jamma vs Reghu, AIR 1977 Orissa 12, referred to.
|
vil Appeal Nos. 3804 to 3807 of 1988.
From the Judgment and Order dated 23.11.1987 of the Bombay High Court in Second Appeal No. 404 of 1985, W.P. No. 607 of 1985 ant Second Appeal No. 86 of 1986.
R.K. Garg, Vijay Hansaria and Sunil K. Jain for the Appellants.
PG NO 714 S.B. Bhasme, V.M. Tarkunde, A.S. Bhasme, V.N. Ganpule, S K. Agnihotri, A.G. Pawar and A.B .
Lal for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
Special leave is granted in all these matters.
Heard learned Counsel for the parties.
The principal question that is involved in these appeals is some what peculiar.
The question is whether the Food & Civil Supplies Department, Sholapur, has a separate and independent existence or whether it is part and parcel of the Revenue Department.
The best authority which can answer the question is the Government, but the Civil Courts and the High Court have not been able to accept the Government version that the Food & Civil Supplies Department, Sholapur, is an independent Government Department and does not form part of the Revenue Department.
The facts leading to the question will be stated presently.
The Commissioner of Pune Division, by his order dated January 27, 1981, granted promotions to the appellants to the posts of Awal Karkuns, and directed that the private respondents herein, who were holding these posts would be repatriated to their parent department, that is, the Revenue Department.
Aggrieved by the said order of the Commissioner, Pune Division, some of the private respondents filed a civil suit for a declaration that the said order granting out of turn promotions to the appellants as Awal Karkuns was unjust, illegal and violative of the fundamental rights of the respondents guaranteed under Articles 14 and 16 of the Construction of India.
The learned Civil Judge, Senior Division, Sholapur, decreed the suit and declared that the impugned order of the Commissioner, Pune Division was discriminatory, illegal and not binding upon the respondents.
The learned Civil Judge also granted an injunction permanently restraining the Government from reverting the respondents from the posts of Awal Karkuns to the posts of Clerks on appeal.
the Fourth Addition District Judge, Sholapur, upheld the judgment and decree of the Civil Court and dismissed the appeal preferred by the appellants and the State of Maharashtra The appellants and the State of Maharashtra filed two separate second appeals to the High Court of Bombay.
In the meantime, some of the respondents also filed writ petitions in the High Court challenging the validity of the impugned order of the Commissioner, Pune Division.
The High Court, by a common judgment, disposed of the second appeals and the writ petitions.
The High Court PG NO 715 came to the finding that the Food & Civil Supplies Department, Sholapur, had no separate existence on the date the impugned order was passed, and that it was part and parcel of the Revenue Department.
Upon that finding, the High Court dismissed the second appeals and allowed the writ petitions of the respondents.
It is not disputed before us that before 1965, there was no such Department as the Food & Civil Supplies Department at Sholapur.
Initially, the Agriculture, Food & Cooperation Department of the Government was entrusted with the subject of food and the supply thereof.
By a circular dated January 13, 1965 of the Government of Maharashtra, a new department called "the Civil Supplies Department" was created.
By a subsequent Government circular dated May 13, 1965 it was renamed as "Food & Civil Supplies Department .
It appears from the said Government circular dated January 13, 1965, creating the department, that the Agriculture, Food & Cooperation Department was renamed as the Agriculture & Cooperation Department.
In other words, the subject of food was withdrawn from the said and a new Department, namely the Civil Supplies Department.
subsequently renamed as Food & Civil Supplies Department, was created.
After the creation of the Food & Civil Supplies Department the rationing was introduced in Sholapur City and Salgarwadi area under the control of the Food & Civil Supplies Department which will appear from the Government resolution dated February 19, 1966.
As a result of introduction of statutory rationing several posts had to be created in the establishment of the Controller of Rationing, which was admittedly a part of the Food & Civil Supplies Department.
Certain posts were also transferred from the Revenue Department to the Food & Civil Supplies Department along with the holders of such posts.
The most significant fact in this regard is that the holders of the posts had to be appointed afresh as personnel of the Food & Civil Supplies Department which will also appear from the Government resolution dated February 19 1966.
It is not disputed that at the time that is to say, after the introduction of statutory rationing, the Food & Civil Supplies Department was an independent Government Department at Sholapur.
The statutory rationing was discontinued in Sholapur with effect from May, 1, 1968.
The posts in the rationing establishment were directed to be merged in the office of the Foodgrain Distribution Officer, Sholapur, and the expenditure on that account was directed to be debited to PG NO 716 the budget head "26 Miscellaneous Department Civil Supplies Department (iii) Procurement, Distribution and Price Control (b) Mofussil" and met from the grants sanctioned thereunder.
It is, however, not disputed that some of the rationing staff were retrenched, some were absorbed in the Revenue Department and the remaining staff were directed to be merged in the office of the Food grain Distribution Officer, Sholapur, with effect from May 1, 1969.
So far as the appellants before us are concerned, they were not retrenched, but according to the private respondents they were absorbed in the Revenue Department.
This has been emphatically disputed by the appellants.
Mr. Tarkunde, learned Counsel appearing on behalf of the private respondents, has drawn our attention to a letter dated October 25, 1969 written by the Foodgrain Distribution Officer, Sholapur, to the Collector, Revenue Branch, Sholapur.
In that letter, the Food grain Distribution Officer, Sholapur, requested the Collector to absorb the remaining staff of the rationing department, who were then working in the Foodgrain Distribution Office.
At this stage, it may be that there is no dispute that both the Departments, namely, the Food & Civil Supplies Department and the Revenue Department, were under the District Collectorate.
A list was attached to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer relating to absorption of rationing staff in the Revenue Department.
The list contains the names of the appellants and under column No. 7 of the list, it has been recorded that the appellants and other remaining staff were willing to work in the Revenue Department.
In view of the said letter of the Foodgrain Distribution Officer and the list annexed to his letter written to the Collector, it is submitted by the learned Counsel, appearing on behalf of the private respondents, that the appellants were transferred to the Revenue Department as the Food & Civil Supplies Department was abolished on the abolition of the statutory rationing.
It has been already noticed that some of the staff of the rationing establishment, who were not retrenched, were transferred to the office of the Foodgrain Distribution Officer.
According to the respondents, the Foodgrain Distribution Office is under the Revenue Department, while the appellants aver that it belongs to the Food & Civil Supplies Department.
In this regard, the most important say is that of the Government.
It is asserted on behalf of the State of Maharashtra that the Food grain Distribution Officer belongs to the Food & Civil Supplies Department.
The PG NO 717 controversy in this respect can be easily resolved by referring to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer to the Collector, Revenue Branch.
If the Foodgrain Distribution Office belongs to the Revenue Department, there was no necessity for the Foodgrain Distribution Officer to request the Collector, Revenue Department, to absorb the unretrenched staff of the rationing establishment.
Be that as it may, the question that arises is whether the appellants were absorbed in the Revenue Department.
It is true that under column No. 7 of the list annexed to the said letter dated October 25, 1969 of the Food grain Distribution Officer, it has been recorded that the appellants and other staff of the rationing establishment were willing to work in the Revenue Department.
There is, however, nothing to show that as a matter of fact the appellants were transferred to the Revenue Department.
The appellants might be willing to be absorbed in the Revenue Department, but there is no material in proof of the alleged absorption of the appellants in the Revenue Department.
It is also not the case of the State Government that the appellants were absorbed in the Revenue Department.
In the counter affidavit of the respondent No. 1, it is stated as follows: "That the District Collector of Solapur by his memorandum dated 17 4 1969 laid down the conditions of giving alternative employment to the retrenched ex civil supply staff in Revenue Department.
These conditions are: (1) That the services in Revenue Department are transferable throughout the district.
(2) That Revenue employees are required to pass departmental examination within prescribed period.
(3) That to hold Awal Karkun 's post Revenue employee is required to pass revenue qualifying exam.
in addition to Sub Service Department Examination.
" It is clear from the statement extracted above that one of the conditions for absorption was that the appellants were required to pass the departmental examination within the prescribed period.
Another conditions was that one had to pass revenue qualifying examination in addition to Sub Service Department Examination for holding the post of Awal Karkun in the Revenue Department.
It is not disputed that the appellants have not passed any of these examinations.
This shows that as they did not fulfil the conditions for PG NO 718 absorption in the Revenue Department, they could not be transferred to or absorbed in that Department.
The High Court proceeded on the assumption that on the abolition of the statutory rationing, the Food & Civil Supplies Department, Sholapur, also came to be absolished.
Indeed, this is also the contention of the private respondents.
Food is an important matter for Government 's consideration and it was the responsibility of the Agriculture, Food & Cooperation Department before the creation of the Food & Civil Supplies Department.
The said Department was renamed as `Agriculture & Cooperation Department ' inasmuch as food ' was taken out of that Department and placed under the Food & Civil Supplies Department.
Thus, the fact of introduction or abolition of statutory rationing has nothing to do with the question of food and supply thereof, which must be dealt with by some department of the government and after the creation of the Food & Civil Supplies Department, it was dealt with by that Department.
It will be wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof, will be abolished consequent on the abolition of the statutory rationing.
In the counter affidavit of the State of Maharashtra, affirmed by Shri Chandrasen Pandarinath Kamble, it has been stated inter alia that in the State of Maharashtra there is a system of Fair Price Shops and Household Card System in the areas where statutory rationing system does not exist This Fair Price Shops and Household Card system undoubtedly comes under the control and supervision of the Food & Civil Supplies Department.
As the Department existed it can be reasonably presumed that it had its own staff and the appellants contention that they were retained in the Food & Civil Supplies Department seems to be correct.
Merely the fact of giving of consent by the appellants to their absorption in the Revenue Department, fails to persuade us to hold that the appellants were absorbed in the Revenue Department, in the absence of any proper material in that regard.
A question has, however, been raised on behalf of the private respondents that if the Department of Revenue and the Food & Civil Supplies Department are two different Departments of the Government, there is no material to show how the respondents came to hold posts in the Food & Civil Supplies Department.
It is true that there is no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supplies Department.
In our opinion, in view of the facts and circumstances stated above, it can be reasonably presumed PG NO 719 that the respondents were sent on deputation to the Food & Civil Supplies Department, otherwise there was no question of their repatriation to their parent department, that is, the Revenue Department.
There are other materials which would also justify the finding that the Food & Civil Supplies Department and the Department of Revenue are two independent and separate Departments even after the abolition of statutory rationing.
The Governor of Maharashtra, by an order dated April 13, 1983, framed rules under the proviso to Article 309 of the Constitution of India for regulating recruitment to the posts of Assistant Commissioner (Supply), District Supply Officer and Foodgrain Distribution Officer Class I under the Food & Civil Supplies Department of the Government of Maharashtra.
Framing of these rules, proves two things, namely, that the Food & Civil Supplies Department has independent and separate existence, and that the Foodgrain Distribution Officer belongs to that Department.
Another set of rules was framed under the proviso to Article 309 of the Constitution of India by the notification dated May 21, 1984 for regulating recruitment to Class 11 posts in the Food & Civil Supplies Department of the Government of Maharashtra.
The framing of these rules for regulating the recruitment of officers in the Food & Civil Supplies Department supports the case of the appellants and also of the Government that the Food & Civil Supplies Department Sholapur, is an independent Department.
The final gradation list of supply staff of directly recruited Clerks and Godown Keepers was prepared and published.
It is.
however contended on behalf of the private respondents that the supply staff belong to the Revenue Department.
This contention is without any substance.
The words supply staff undoubtedly, refer to the supply staff of the Food & Civil Supplies Department .
The State Government is justified in placing reliance upon the gradation list in support of its case that the Food & Civil Supplies Department is an independent and separate Department.
It is, therefore, apparent from the above facts, particularly the fact that separate rules were framed for recruitment of officers in the Food & Civil Supplies Department and a final gradation list was also prepared and published, and the Food & Civil Supplies Department not part and parcel of the Revenue Department but it has a separate and independent existence.
This finding finds support from another fact that the Revenue Department has its own gradation list of its employees including the private respondents.
PG NO 720 We may now deal with one more submission made on behalf of the private respondents.
Our attention has been drawn to a fact which has also been noticed by the High Court, namely, that by a Government order issued to all Commissioners of Divisions, it was directed that the posts of Inspecting Officers should be made available to the persons from the Revenue Department as well as from the Food & Civil Supplies Department in the ratio of 75:25.
It is submitted on behalf of the private respondents that this Government order points to the fact that both the Food & Civil Supplies Department and the Revenue Department are one and the same Department at Sholapur.
We are unable to accept this contention.
The Government order in question, in our opinion, establishes the fact that the two Departments are separate Departments of the Government.
It has been already noticed that some officers of the Revenue Department were holding the posts in the Food & Civil Supplies Department, Sholapur, presumably on deputation and, hence, the ratio with regard to the posts of Inspecting Officers, with which we are not concerned, had to be fixed.
If the two Departments were not separate Departments, there was no necessity for mentioning the names of these two Departments in the said order.
It is not disputed that the posts of Inspecting Officers are posts of the Food & Civil Supplies Department.
The contention of the private respondents based on the said Government order is, accordingly, rejected.
Before we conclude the judgment, we may refer to an unreported Bench decision of the Nagpur Bench of the Bombay High Court in Special Civil Applications Nos. 707 of 1974 and 4258 and 4834 of 1976 (Shri Atmaram Chaturji Garbade & Ors.
vs State of Maharashtra & Ors.) disposed of on January 13, 1977 where it has been held that the two departments are separate.
It is, however, contended by Mr Tarkunde that the Nagpur Bench decision has no bearing on the instant appeals before us as it relates to the city of Nagpur and cantonment in Kampte where the Food & Civil Supplies Department was not abolised.
It, however, appears that in that decision, the Bench has taken into consideration some common documents.
Be that as it may, in the instant appeals, there are ample materials which justify the conclusion that the two departments are not one and the same department but are two separate departments.
In the circumstances, we are unable to agree with the High Court that the appellants are employees of the Revenue Department inasmuch as after the abolition of the statutory rationing, the Food & Civil Supplies Department was also abolished and the appellants were absorbed in the Revenue PG NO 721 Department.
As the appellants belong to a different department, their promotions will be governed by the rules of that department.
Similarly, the promotions of the private respondents will be considered in accordance with the rules of the Revenue Department.
We are told that after their repatriation to their parent department all the private respondents were promoted to the posts of Awal Karkuns.
For the reasons aforesaid, we set aside the judgment of the High Court as also of the trial court and that of the lower appellate court and dismiss the suit and the appeals.
The writ petitions filed ' in the High Court are also dismissed.
The instant appeals are allowed, but in view of the peculiar facts and circumstances of the cases, there will be no order as to costs.
R .S.S.
Appeals allowed.
| The appellants were promoted in January 1981 as Awal Karkuns in the Department of Food and Civil Supplies, Sholapur.
At the same time, the private respondents holding those posts were directed to be repatriated to their parent department, that is, the Revenue Department.
The private respondents challanged these orders by way of a civil suit on the ground that these orders were unjust, illegal and violative of Articles 14 and 16 of the Constitution.
The Civil Judge decreed the suit.
The Additional Sessions Judge and the High Court upheld the decree.
The High Court came to the finding that the Food & Civil Supplies Department, Sholapur, had no separate existence on the date the impugned order was passed and that it was part and parcel of the Revenue Department.
It is contended by the private respondents that on the abolition of the statutory rationing, the Food & Civil supplies Department was abolished, and the appellants were absorbed in the Revenue Department.
This contention is disputed by the appellants.
Allowing the appeals, it was, HELD: (1) It was not disputed that after the introduction of statutory rationing, the Food & Civil Supplies Department was an independent Government Department at Sholapur.
[71G] (2) It was wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof.
was abolished consequent on the abolition of the statutory rationing.
[718D] (3) The fact of introduction or abolition of statutory rationing had nothing to do with the question of food and supply thereof, which must be dealt with by some department of the Government and after the creation of the Food & Civil PG NO 712 PG NO 713 Supplies Department, it was dealt with by that Department.
[718C] (4) As the Department existed, it could be reasonably presumed that it had its own staff and the appellant 's contention that they were retained in the Food & Civil Supplies Department seemed to be correct.
[718E] (5) There was no material in proof of the alleged absorption of the appellants in the Revenue Department.
Moreover, as they did not fulfil the conditions for absorption in the Revenue Department, they could not be transferred to or absorbed in that Department.
[717C; 718H] (6) It is true that there was no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supply Department.
It could, however, be reasonably presumed that the respondents were sent on deputation to the Food & Civil Supplies Department, otherwise there was no question of their repatriation to their parent department.
[718H; 719A] (7) It was apparent from the fact that separate rules were framed for recruitment of officers in the Food and Civil Supplies Department and a final gradation list was also prepared and published, that the Food and Civil Supplies Department was not part and parcel of the Revenue Department, but it had a separate and independent existence.
[719G] (8) As the appellants belonged to a different department their promotions would be governed by the rules of that department.
Similarly, the promotion of the private respondents would be considered in accordance with the rules of the Revenue Department.
[721A] Shri Atmaram Chaturvedi Garbude & Ors.
vs State of Maharashtra & Ors., Special Civil Application Nos.
707 of 1974 and 4834 of 1976 Bombay High Court, Nagpur Bench, referred to.
|
l Appeal No. 1972 of 1983 From the Judgment and Order dated 22.11.83 of the Calcutta High Court in Civil Rule No. 10933 W of 1983 and order issuing contempt notice dated 3.2.84 being Civil Rule No. 571 W of 1984.
Milon K. Banerjee, Additional Solicitor General, A.K. Ganguli and R.N. Poddar for the appellants.
Soli J. Sorabjee, Mrs. Manik Karanjawala, Ratan Karanjawala, Kuldeep Pablay, Sumit Kachawha and Dr. Roxana Swamy for the respondents.
A.Subba Rao for STC.
The Order of the Court was delivered by CHINNAPPA REDDY J.
We grant special leave and proceed to dispose of the appeal.
M/S. Oswal Woollen Mills Limited having its registered office at Ludhiana in the State of Punjab and a branch office at Calcutta, and Narayan Das Jain, Secretary of the Company have filed a writ petition in the Calcutta High Court seeking various reliefs against the Union of India (through the Secretary, Ministry of Commerce, New Delhi), the Chief Controller of Imports and Exports, New Delhi, the Deputy Chief Controller of Imports and Exports, Amritsar, the Collector of Customs, Calcutta and the State Trading Corporation of India, New Delhi.
The primary prayer in the writ petition is to prevent or to quash an apprehended or purported action under clause 8 B of the Import Control Order.
All the other reliefs sought in the writ petition revolve round the principal relief regarding clause 8 B of the Import Control Order.
The other prayers are either ancillary or incidental to the principal prayer or are of an interlocutory character.
Having regard to the fact that the registered office of the company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be filed either in the High Court of Punjab and Haryana or in the Delhi High Court.
The writ petitioners however have chosen the Calcutta High Court as the forum perhaps because one of the interlocutory reliefs which is sought is in respect of a consignment of beef tallow which has arrived at the 345 Calcutta Port.
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 contests We do not desire to probe further into the question whether the writ petition was filed by design or accident 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.
But we do feel disturbed that such 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 the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications.
More about this later.
It appears that an order under clause 8 B of the Import Control Order had been made against the company on November 9, 1983, but the writ petition was filed as if the order was in the offing and might be made at any time.
The writ petition was apparently filed in professed or real ignorance of the order made under clause 8 B of the Import Control Order.
On November 22, 1983, a learned single judge of the Calcutta High Court issued a rule Nisi and granted an interim order in the following terms.
"There will be an interim order of stay/injunction in terms of prayers (j), (k), (I) and (n) of the writ petition till the disposal of the rule.
Liberty is given to the respondents to apply for vacation or variation".
The rule was made returnable on January 31, 1984.
Prayers (j),(k)(I) and (n) of the petition were for the grant of: "(J) Injuction restraining the respondents their servants and/or agents from filing any criminal complaint against the petitioners or any of its director or employees from initiating any departmental proceedings under the Import and Export (Control) Act, 1947 and Import (Control) Order, 1955 against the petitioners or any of its Directors of Employees till the disposal of the Rule; (k) Injuction restraining the respondents from issuing an order of abeyance under clause 8 B of the Import Control 346 Order, 1955 and/or from taking any action under such order of abeyance till the disposal of the rule; (1) Mandatory order directing the respondent No.5 Collector of Customs to permit the petitioners to re export the consignment of inedible Beef Tallow in terms of I.T.G. Public Notice No.37 of 1983 dated 1.9.83 with respect to the consignment weighing 456.316 MT which is lying at Calcutta under section 49 of the Customs Act; (n) An order that pending the hearing and final disposal of this writ petition the petitioners be permitted to re ship and/or re export the consignment of 456.216 MT of inedible Beef Tallow which arrived at Calcutta as more particularly mentioned in Annexure `I." It is obvious that the interim order is of a drastic character with a great potential for mischief.
The Principal prayer in the writ petition is the challenge to the order made or proposed to be made under clause 8 B of the Import Control order.
The interim order in terms of prayers (j) and (k) has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties.
While we do not wish to say that a drastic interim order may never be passed without hearing the opposite parties even if the circumstances justify it, we are very firmly of the opinion that a statutory order such as the one made in the present case under clause 8 B of the Import Control order ought not to have been stayed without at least hearing those that made the order.
Such a stay may lead to devastating consequences leaving no way of undoing, the mischief Where a plenitude of power is given under a statute, designed to meet a dire situation, it is no answer to say that the very nature of the power and the consequences which may ensure is itself a sufficient justification for the grant of a stay of that order, unless, of course, there are sufficient circumstances to justify a strong prima facie inference that the order was made in abuse of the power conferred by the statute.
A statutory order such as the one under clause 8 B purports to be made in the public interest and unless there are even stronger grounds of public interest an exparte interim order will not be justified.
The only appropriate order to make in such cases is to issue notice of 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 347 the ordinary jurisdiction of the court.
To grant interim relief straight away and leave it to the respondents to move the court to vacate the interim order may jeopardise the public interest.
It is notorious how 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.
On the facts and circumstances of the present case, we are satisfied that no interim relief should have been granted by the High Court in the terms in which it was done.
Orders under clause 8 B of the Import Control order, similar to the one made against Oswal Woollen Mills Limited, were made against various import export houses and others.
Some of these orders have been questioned by the affected parties in different High Courts and, in some cases, interim orders have also been obtained.
One such writ petition filed by Liberty Oil Mills Pvt.
Limited has been transferred to this court from the Bombay High Court at the instance of the Union of India.
The case is now pending in this Court and has in fact been heard in part by this vary Bench.
Apparently, under the impression that the questions at issue will be finally determined by this court in the case of the Liberty oil Mills, the Union of India and the other authorities do not seem to have moved expeditiously to contest the writ petitions filed in the High Courts and to have the interim orders vacated.
In the present case, an application to vacate the interim order was filed in the Calcutta High Court on February 1, 1984.
In the meanwhile, oswal Woollen Mills Limited went on writing letters and sending telegrams complaining that the interim orders of the High Court had not been obeyed and threatening action for contempt of Court.
On January 6, 1984, an application to commit the Chief Controller of Imports and Exports and others for contempt of court was filed by the company.
Notice to the respondents was ordered on the same day and on February 3, 1984, overruling the request made on behalf of the respondents that the petition to vacate the interim order may be heard first, the High Court issued a rule in the application for contempt of court against the Chief Controller of Imports & Exports and the Deputy Chief Controller of Imports and Exports and directed them to appear in person on March 6, 1984, Thereupon the Union of India, the Chief Controller of Imports & Exports, etc.
348 have filed the present special leave petition against the interim order dated November 22, 1983 of the Calcutta High Court in Civil Rule No.10933 W of 1983 and the rule for contempt of court issued on February 3, 1984 in Civil Rule No. 571 W of 1984.
We have heard Shri Milon Banerjee, learned Additional Solicitor General for the petitioners and Shri Soli Sorabjee, learned senior Advocate for the respondents.
We have already mentioned that the High Court was not right in granting interim relief in the terms in which it had done so.
We, therefore, vacate the interim order dated November 22, 1983 made by the Calcutta High Court.
It has been pointed out to us that the Chief Controller of Imports & Exports has himself issued a Public Notice dated 1st September, 1983 permitting re shipment/re export of import consignment which could not be cleared consequent upon the Ministry of Commerce Import Trade Control order No 27/83 dated the 24th August, 1983.
The Public Notice empowers the customs authority to allow re shipment/re export having regard to the extent to which foreign exchange spent on import will be earned back and subject to such other conditions relating thereto as the Customs authority may impose.
We wish to make it clear that the vacating of the interim order will not disentitle the writ petitioners from seeking and taking advantage of the public notice dated September 1, 1983.
In regard to the rule for contempt of court, we find it difficult to sustain the same.
Though ordinarily we would have left the matter to be decided by the High Court, we think it unnecessary to do so in the present case having regard to the elaborate arguments addressed to us by both parties.
The complaint of the writ petitioners in seeking the rule for contempt of court was that the authorities had not dealt with their applications for licences, etc.
despite the `abeyance ' order having been stayed.
It is obvious that 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 their authorities to dispose of their applications expeditiously, it was open to them to seek a further direction from the court to fixing a limit of time within which the 349 applications were to be disposed of.
We fail to see how the Chief Controller of Imports & Exports or the Deputy Chief Controller of Imports & Exports could be said to have committed any contempt of court, even prima facie, by their mere failure to take action in the matter of the disposal of the applications of the writ petitions.
In the circumstances, we perceive the application to commit the authorities for contempt of court to be a device to exact licences from them.
We accordingly allow the appeal, vacate the interim order dated November 22, 1983 of the Calcutta High Court in Civil Rule No. 10933 W of 1983 and quash the rule for contempt of court issued on February 3, 1984 in Civil Rule No. 571 W of 1984.
Before we part with the case, we may refer to a statement made by Shri J.P. Sharma, Deputy Chief Controller of Imports and Exports, New Delhi in the affidavit filed by him before us to the effect that `in the larger public interest Government was unable to obey the interim order and had taken the question to this Hon 'ble Court which is pending decision shortly '.
Torn out of the context in which it was made, the unhappy language in which it has been expressed is suggestive of contumaciousness on the part of J.P. Sharma.
However, he has filed further affidavits before us explaining the context in which the statement was made and expressing his unqualified regret.
We accept his explanation and expression of regret.
We are satisfied that Shri J.P. Sharma did not mean what the language employed by him suggested.
However, we do wish to express our disapproval of the language employed which is certainly suggestive of contumaciousness.
N.V.K. Appeal allowed.
| Prior to 1972, there were over 100 Insurance Companies Indian and A, foreign.
The conditions of service of the employees of these companies were governed by the respective contracts of service between the companies and the employees.
On 13th May 1971, the Government of India assumed management of these general insurance companies under the .
The nationalised general insurance business.
Four merger schemes were framed in 1973 by the Central Government in exercise of the powers contained in section 16(1) of the Act and four companies; oriental Fire and General Insurance Company, National Insurance Company New India Assurance Company and United India Insurance Company Ltd., were merged into and they alone were allowed to carry on the business of general insurance.
These companies started functioning from Ist January, 1973 and the process of merger was completed by Ist January, 1974 ' when the aforesaid four schemes came into force.
The Government of India by a notification dated 27th May, 1974, framed a 'scheme ' called the General Insurance (Rationalisation and Revision of Pay Scales and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 in exercise of the powers conferred by section 16(1)(g) of the Act.
This scheme provided for the rationalisation and revision of pay scales and other terms and conditions of service of employees working in supervisory, clerical and subordinate positions and governed the pay scales, dearness allowance, other allowances and other terms and conditions of the general insurance employees.
Paragraph 23 of the Scheme provided that the new 'scales of pay ' shall remain in force till December 31, 1976 and thereafter shall continue to be in force unless modified by the Central Government.
In 1976, the Board of Directors approved a policy for promotion.
On Ist June, 1976 another scheme by which amendments were made with regard to Provident Fund, was introduced.
On 30th July 1977, a Scheme amending provisions regarding sick leave was also introduced. ' F The employees submitted a memorandum objecting to the revision of pay scales and other conditions of service and wanted a reference to the Industrial Tribunal.
The class III and IV employees however did not accept the revision of Service Conditions, pay scales dearness allowance, etc.
and raised industrial dispute.
There were conciliation proceedings and there was failure to bring about amicable settlement of disputes.
In 1980, the Government introduced the General Insurance (Rationalisation and Revision of Pay Scales and other conditions of Service of Supervisory, Clerical and Subordinate Staff) Second Amendment Scheme, 1980.
This Scheme which was introduced by a notification dated September 30, 1980 made detailed provisions as to how the adjustment allowance is to be dealt With so far as Dearness Allowance, overtime Allowance, Contribution to Provident Fund and other retirement benefits were concerned.
Paragraph 7 which dealt with 'retirement ' stipulated that an employee who was in service of the Corporation before the 254 commencement of the Scheme of 1980 should retire from service when he attains the age of 60 years, but an employee, who joins the service of the Corporation after the commencement of the Scheme would retire on attaining the age of 58 years.
The Fourth Schedule to the Scheme indicated tho revised scales of pay.
The petitioners in their writ petitions to this Court contended that the terms and conditions of service enunciated in 1974 being a result of bilateral agreement could not be changed unilaterally to the detriment of the employees and that the notification deprived the rights of the employees to receive dearness allowance etc.
with the rise in the cost of living index.
It was further contended that the Scheme was violative of section 16(2) of the Act and ultra vires Articles 14,19(1)(g) and Article 31(2) of the Constitution, and that the Constitution 44th amendment deleting Articles 31 and 19 cannot save the Scheme, since the amendment came into force only 20th June, 1979, whereas the impugned notification affecting the rights of the employees to emoluments took effect from 1st January, 1979.
The respondents contested the writ petitions on the ground that section 16(6) authorised the Central Government by notification, to add, to amend or to vary any scheme framed under section 16 and consequently rationalisation or revision of pay scales was permissible by the 1980 scheme.
Moreover in comparison With other employees in governmental or public sector, the employees of the general insurance, companies were 'High wage islanders ' and it was consequently necessary to put a ceiling on their emoluments and other amenities in order to facilitate better functioning of the insurance companies as well as to subserve the object and purpose of the nationalisation policy.
Allowing the writ petitions, ^ HELD: 1.
(a) The impugned scheme of 1980 is bad as being beyond the scope of the authority of the Central Government, under the , and therefore quashed.
This, however, will not prevent the Government, if it is so advised, to frame any appropriate legislation or make any appropriate amendment giving power to the Central Government to frame any scheme as it considers fit and proper.
[290G; 291A B] 1.
(b) The scheme of 1980 so far as it is not related to the amalgamation or merger of insurance companies, is not warranted by sub section
(1) of section 16.
The scheme is therefore bad and beyond authority.
[278D] A.V. Nachane & Another vs Union of India & Another [1982] 2 S.C.R p. 246, Madan Mohan Pathak vs Union of India Corporation of India vs D.J. Bahadur & Ors.
[1981] 1 S.C.R. p. 1083.
referred to. 2.
The duty of the Court in interpreting or construing a provision is to read the section, and understand its meaning in the context interpretation of a provision or statute is not a mere exercise in semantics but an attempt to find out the meaning of the legislation from the words used, understand the context and 255 the purpose of the expressions used and then to construct the expressions sensibly.
[275C D] 3 (a) The scheme is an exercise or delegated authority.
The scope and ambit of such delegated authority must be so construed, if possible, as not to make it bad because of the vice of excessive delegation of legislative power.
In order to make the power valid, s.16 of the Act should be so construed in such manner that it does not suffer from the vice of delegation of excessive legislative authority.
[275E] 3.
(b) Unlimited right of delegation is not inherent in the legislative power.
[275 F] Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd. vs The Asst.
Commissioner of Sales Tax & Ors., [1974] 2 S.C.R. p. 879, referred to.
The growth of legislative power of the executive is a significant development of the 20th century.
The theory of laissez faire has been given a go by and large and comprehensive powers are being assumed by the State with a view to improve social and economic well being of the people.
Most of the modern socioeconomic legislations passed by the legislature lay down the guiding principles of the legislative policy.
The legislatures, because of limitation imposed upon them and the time factor, hardly can go into the matters in detail.
The practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out or practical necessity and pragmatic needs of the modern welfare State.
[275G 276A] 5.
Regarding delegated legislation, the principle which has been well established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.
The legitimacy of delegated legislation depend upon its being used as ancillary which the legislature considers to be necessary for the purpose of exercising i s legislative power effectively and completely.
The legislature must retain it its own hand the essential legislative function which consists in declaring the legislative policy and lay down the standard which is to be enacted into a rule of p law, and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it effective provided the legislative policy is enunciated with sufficient clearness or a standard laid down The courts cannot and do not interfere on the discretion and that undoubtedly rests with the legislature itself in determining the extent of the delegated power in a particular case.
[276B D] 6.
The authority and scope for subordinate legislation can be read in either of the two ways; namely one which creates wider delegation and one which restricts that delegation.
[277E] In the instant case, the Act must be read in conjunction with the Memorandum in Clause No. 16 of the Bill which introduced the Act in question.
But above all, it must be read in conjunction with sub section 2 of section 16 of the Act which clearly indicated the object of framing the scheme under section 16(1) of the Act.
[277D] 256 7.
In view of the language of sub section
(2) of section 16 and the memorandum to the Bill, the one which restricts the delegation must be preferred to the other.
So read, the authority given under section 16 under the different clauses of sub section (I) must be to subserve the object as envisaged in sub section (2) of section 16 of the Act, and if it is so read then framing of a scheme for purposes mentioned in different clauses of sub section (1) of section 16 must be related to the amalgamation or merger of the insurance companies as envisaged both in the memorandum on delegated legislation as well as sub section (2) of section 16.
[277F G] 8.
Sometimes there have been rise in emoluments with the rise in the cost of indeed in certain public sector corporations.
The legislature however is free to recognise the degree of harm or evil and to make provisions for the same.
In making dissimilar provisions for one group of public sector undertakings does not per se make a law discriminatory as such.
Courts will not sit as super legislature and strike down a particular classification on the ground that any under inclusion namely that some others have been left untouched so long as there is no violation of constitutional restraints.
[285D E] 9.
Piece meal approach to a general problem permitted by under inclusive classifications, is sometimes justified when it is considered that legislatures deal with such problem, usually on an experimental basis.
It is impossible to tell how successful a particular approach might be, what dislocation might occur, and situation might develop and what new evil mights be generated in the attempt.
Administrative expedients must be forged and tested.
Legislators recognizing these factors might wish to proceed cautiously, and courts must allow to do so.
[286B C] Special Courts Bill [1978] 2 S.C.R. p. 476 at pages 540 541, State of Gujarat and Anr.
vs Shri Ambica Mills Limited Ahmedabad etc.
[1974] 3 S.C.R. p. 760 and R.K. Garg etc.
vs Union of India & Ors. etc.
, [1982] I S.C.R. p. 947, referred to.
In the instant case, as there was no industrial dispute pending, the ground that the petitioners have been chosen out of a vast body of workmen to be discriminated against and excluded from the operation of the Industrial Disputes Act, is no ground that there has been no violation of Article 14 of the Constitution.
[286D] 10.
Differentiation is not always discriminatory.
If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution.
There is intelligible basis for differentiation.
Whether the same result or better result could have been achieved and better basis of differentiation evolved is within the domain of legislature and must be left to the wisdom of the legislature.
[288H 289B] 11.
Article 14 does not prevent the Legislature from introducing a reform i.e. by applying the legislation to some institutions or objects or areas only according to the exigency of the situation and further classification of selection can be sustained on historical reasons or reasons of administrative exigency or 257 piece meal method of introducing reforms.
The law need not apply to all the A persons in the sense of having a universal application to all persons.
A law can be sustained if it clears equally with the people of well defined class employees of Insurance Companies as such, and such a law is not open to the charge of denial of equal protection on the ground that it had not application to other persons.
[290E F] State of Karnataka & Anr.
vs Ranganatha Reddy, & Anr. etc.
[1978] I S.C.R. p. 641 at pages 672, 676 & 691, referred to.
In the instant case, for the purpose of rationalisation, the insurance companies wanted to curtail the emoluments of class Ill and class IV employees on a small scale.
It cannot therefore be said that there are no distinguishing factors and that fol choosing a particular group for experiment, the respondents should be found guilty of treating people differently while they are alike in all material respects [288G] 12.
The object of the is to run the business efficiently so that the funds available might be utilised for socially viable and core projects of national importance.
The Nationalised Banks and the Insurance Companies for the purposes of applicability or otherwise of the provisions of the Industrial Disputes Act cannot be treated as belonging to one class.
Historical reasons provide an intelligible differential distinguishing Nationalised Insurance Companies from the Nationalised Banks.
The financial resources, structures and functions of the Banks are different from those of the Insurance Companies.
[288A E] 13.
The general rule to be followed in case of conflict between two statutes is that the later abrogates the easier one.
A prior social law would yield to a later General law if either of these two conditions are satisfied: (i) The two ale inconsistent with each other and (ii) there is some express reference in the later to the earlier enactment.
[282D F] 14.
(i) The Legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altered, abrogated or repealed by a later general law by an express provision, (iii) A later general law will override a prior special law if the two are so repugnant to each other that they cannot co exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law.
[282G H] Maxwell "Interpretation of Statutes Twelfth Edition pp.
196 198, referred to.
J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U.P. & Ors.
[1961] 3 S.C.R,.
p. 185 and U.P. State Electricity Board & Ors.
vs Hari Shanker Jain and Ors.
[1979] 1 S.C R. p. 355, referred to.
258 15.
The General Insurance Business (Nationalisation) Ac; was put in the Ninth Schedule of the Constitution as Item 95 on loth August 1975.
If any of the rights of the petitioners had been affected by the scheme of 1980 then these rights would not enjoy immunity from being scrutinised simply because the Act under which the scheme was framed had been put in the Ninth Schedule.
In any event any right which accrued to the persons concerned prior to the placement of the Act in the Ninth Schedule cannot be retrospectively.
affected by the impugned provisions.
[284E G] Prag Ice & Oil Mills & Anr. etc.
vs Union of India, [1978] 3 S.C.R. p. 293, referred to In the instant case, empowering the Government to frame schemes for carrying out the purposes of the Act does not in any way affect or abridge the fundamental rights of the petitioners and would not attract Article 19(1)(g).
[284H;
|
Appeal NO.
437 of 1966.
Appeal by special leave from the Award dated March 31, 1964 of the Industrial Tribunal, Maharashtra in Reference (IT) No. 40 of 1963.
H. K. Sowani, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the appellant.
H. R. Gokhale and 1.
N. Shroff, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, J.
This is an appeal by special leave against the award dated March 31, 1964 of the Industrial Tribunal, Maharashtra in a Reference by Government under section 10(1)(d) of the .
The appellant is a Trade Union established on January 1, 1962 by the employees of Ghatge & Patil (Transports) Private Ltd. and the respondent is the Company.
The Company has its registered office at Kolhapur and is engaged in the transport and removal of goods by road.
It operates on a large scale owning at the material time as many as 70 trucks and plies them from Kolhapur (where the registered office of the Com pany is situate) to far off places such as Bombay, Poona, Bangalore, Goa and Madras.
On January 14, 1963, the Union served a notice of demand upon the Company asking for the abolition of a newly introduced contract system for the running of vehicles.
This was referred first to the Conciliation Officer, but later the reference was made by Government as stated already.
The dispute arose in the following circumstances: For the operation of its trucks the Company was previously employing 70 drivers and an equal number of cleaners.
On January 8, 1963, the Company advertised in a local newspaper of Kolhapur that it had trucks in working condition for sale and also trucks in working condition to be given for plying on a contract system.
As many as 54 drivers applied for obtaining contracts having resigned their service as drivers.
The Company then entered into agreements with these drivers between January 9 and 31.
Each driver received one motor truck for operation according to the terms of the agreement.
A model agreement has been produced in the case in which the parties, after reciting that there were difficulties in operating motor transport vehicles, because of the passing of the , stated that the agreement was being entered into for the operation of the trucks.
It is not necessary either to set out the agreement or to analyse all its terms.
302 For our purpose it is sufficient to say that the Company let to these former drivers (to whom we may refer as operators) a truck each on condition that they paid the Company Re. 1.00 per mile for its use.
The Company on its part undertook to supply fuel, oil tyres, tubes, etc.
for the purpose of running the vehicle.
Under this agreement the operator was at liberty to canvass for goods and transport them but he was required to give the utmost priority to the goods entrusted to the Company for transport.
In this way the goods booked with the Company were transported by the operator s in priority and they paid Re. 1.00 per mile for the use of the truck , all other expenses being borne by the Company.
The operator s were required to bring all the gross receipts to the Company which deducted its own charges at Re. 1.00 per mile and handed over the balance.
The operators were responsible for any damage to the vehicle, save normal wear and tear, and were required to observe the terms and conditions of the permit held by the Company.
In this way, the Company continued to function as a transport undertaking while the trucks were not run through paid servants but through independent contractors.
The above move by the Company was necessary (so the Company admits) because of the passing of the Motor Transport Wor kers Act, 1961, on May 20, 1961.
This Act was passed to provide for the welfare of Motor Transport workers and to regulate the conditions of their work.
It applies to Motor Transport Undertakings, by which is meant, among other things, undertakings engaged in carrying goods by road for hire or reward.
Such undertakings are required to register under the Act and an inspecting staff is brought into existence for the purpose of seeing that the requirements of the Act are carried out.
The fourth chapter of the Act (headed "Welfare and Health") requires the Motor Transport Undertakings to provide canteens in every place where 100 Motor Transport workers or more are employed , rest rooms for the use of such workers, uniforms, medical and First Aid facilities.
The fifth chapter prescribes the hours of work for Motor Transport workers and in ordinary circumstances puts a ceiling of 48 hours in a week and a maximum of 8 hours a day and a daily interval for rest after 5 hours of work, with a spreadover of not more than 12 hours in every day.
It also provides for a day of weekly rest.
The sixth chapter prohibits the employment of children, enjoins the carrying of tokens by employees and provides for their medical examination.
The seventh chapter applies the Payment of Wages Act and provides for annual leave with wages and extra wage for overtime.
The eighth chapter provides for penalties and procedure and the ninth chapter gives power to the Government to grant exemptions, to make rules and to give directions.
Section 37, which is in this last chapter, provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service whether made before or after the commencement of this Act but not so as to take away from a Motor Trans 303 port worker an existing benefit which is more favourable than those under the Act or to prevent him from entering into an agreement for better rights and privileges than those given to him by the Act.
The Company frankly admitted at all stages that it was impossible for it to implement all the conditions of the Act in respect of the drivers of motor vehicles.
It stated that its motor drivers.
while working in its employment, were required to go on long journeys and it was practically impossible to enforce the conditions of hours of work or of rest.
Since this entailed penal consequences and the possibility of the permits being cancelled, the Company was forced to adopt a system under which it would not be requir ed to observe the Act because under it the truck drivers became independent contractors and were therefore not within the ambit of the Act.
On the other hand, the Union contended that this arrangement was invented to nullify the beneficial legislation intended to improve the conditions of Motor Transport workers in general and truck drivers in particular.
Under the system, the Union submitted, the drivers lost the benefit of leave of various kinds, over time payment, Provident Fund, gratuity and insurance and there was no control either in respect of hours of work or of rest which were the main objects of the Act to secure.
"The matter of dispute referred to the Tribunal was: "The contract system for the running of vehicles which has been newly introduced, must be abolished immediately.
Such ex employees of the Company who have been given this work on contract basis should be reinstated with back wages".
The Tribunal held that the first part as also the second referred to the 54 drivers who had resigned their jobs and become operators.
The Tribunal saw difficulty in acting on the second part because the drivers had resigned.
In dealing with this problem the Tribunal considered the evidence and came to the conclusion that the drivers were not coerced or forced to take this action.
The Tribunal then posed the question, how to re instate persons who had voluntarily resigned their services and could not be said to be dismissed, discharged or retrenched within the ? The Tribunal also held that the agreements were simple agreements for transport of goods and were essentially fair to the operators.
Of course, there were advantages as well as disadvantages but the employees not being servants were free agents and could do the work as and when they liked and even accept work from others.
They thus got, what they considered, more benefit from the contract system than from their contract of employment.
None of the drivers had appeared to complain against the new system.
There was also nothing to show that this system took unfair advantage of the former drivers.
The Tribunal, therefore, held that the contract system could not be described as an unfair labour practice.
The Tribunal also commented that under the agreements 304 themselves the contract was capable of being terminated by three days ' notice on either side and hence it was hardly necessary for the Union to take recourse to a Tribunal for getting it abolished.
Holding that the new system could not be said to be an unfair or anti labour practice the Tribunal rejected the claim of the Union.
The Union now appeals by special leave.
The argument on behalf of the Union centres round two facts.
Firstly, that the resignation of the drivers and cleaners and the setting up of the contract system amounts to an unfair labour practice and exploitation of labour because by this device these and other transport workers are being victimized; and, secondly, the salutary and beneficial legislation conceived in the best interest of the transport workers is being deliberately set at naught.
According to the Union the operators continue to be workmen notwith standing that they are posed as independent contractors hiring the trucks.
By this system many of the benefits secured to the Motor Transport workers including drivers and cleaners, have been made inapplicable to a section of Motor Transport workers, namely, the former drivers and cleaners employed by the Company.
The argument on the side of, the Company is that the hiring out of trucks to the operators is not illegal and does not amount to exploitation of the former drivers or an unfair labour practice.
According to the Company the operators are free agents and freely resigned their jobs and the Company points out that even the, office bearers of the Union were among those who resigned as drivers and entered into agreements to become operators.
The Company further points out that many of the contracts were entered into after the, present reference was made to the Tribunal.
There is no doubt that the Company is a Motor Transport ' Undertaking because it is engaged in carrying goods by road for hire or reward.
Since the drivers have resigned their jobs they cannot be said to be employed in the Motor Transport Undertaking.
The word "employed" in the definition of Motor Transport worker is not used in the sense of using the services of a person but rather in the sense of keeping a person in one 's service.
The definition is, of course, made wide to take in all persons working in a professional capacity in an undertaking for running its affairs in any capacity and not only persons employed on wages.
The word "wage" has the meaning given to the word in the Payment of Wages Act and takes in all paid employees and also persons who are employed in a professional.
capacity although not in receipt of wages.
Persons who are independent and hire a vehicle for their own operation paying a fixed hire per mile from their earnings cannot be said to be persons employed in the Motor Transport Un dertaking in the sense of persons kept in service.
The operators, therefore, are not Motor Transport workers within the definition.
The Act is not only intended to confer benefits on Motor Transport workers but is also regulatory with penal consequences.
305 The apprehension of the Company is that some of the regulatory provisions of the Act are incapable of being observed properly in the case of drivers and cleaners going on long journeys because there is no means of enforcing them.
For example, the provisions about hours of work, hours of rest etc. are not easy to enforce enroute or at far off places.
Therefore, rather than run the risk of losing the permit for want of compliance with the , the Company has decided not to run transport trucks itself but to let them be run by independent hirers.
There does not appear to be any bar in law to such action.
Section 59 of the Motor Vehicles Act contemplates the transfer of permits with the permission of the Transport Authorities and this enables any person to whom a vehicle covered by the permit is transferred to get the right to use the vehicle in the manner authorised by the permit.
Here the vehicle is not transferred but is only let out on hire and hence there is prima facie no need for permission.
The Union made no attempt before us to establish that the inauguration of the contract system offended the Motor Vehicles Act or was prohibited under it.
No objection to the system by the Authorities under the Motor Vehicles Act was proved in the case.
The operators also seem to be happy because no operator appeared to complain and the only dissatisfaction has been registered by the Union which apparently lost the allegiance of some of its former members and even office bearers.
In view of the findings of the Tribunal, which we see no reason to disapprove, it must be held that the drivers voluntarily resigned and entered into the agreements since they apparently considered them to be more favourable than the terms of their former employment.
In this view of the matter it is difficult to hold that the Tribunal was wrong in its conclusion that there was no ex ploitation of the drivers.
It is also equally true that there is no bar in law to the introduction of the system.
The Union, however, contends that on the analogy of some cases of this Court in which contract labour was put down as unfair labour practice because it involved exploitation of labour, we should declare this system also to be harmful to the interests of labour.
Contract labour was declared in this Court to be an unfair labour practice because the intention was to introduce a middle man to avoid observance of laws and to deny to labour the advantages it had acquired by bargaining or as a result of awards.
Such is hardly the case here.
The two systems were there for the drivers to choose.
It is reasonable to think that the drivers must have chosen a system which was considered by them to be more beneficial to themselves.
There was no compulsion for the drivers to resign their jobs and they did so voluntarily obviously thinking that the new system was more profitable to them.
We cannot lose sight of the fact that some of the office bearers of the Union were among the first to resign.
Many of the drivers resigned the jobs and entered into agreements even after the dispute was taken up by the Union.
The present case is, therefore, not analogous to the case of 306 contract labour where employment of labour through a contractor or middleman put the labour at a disadvantage in collective bargaining and thus robbed labour of an important weapon in its armoury.
The matter of dispute no doubt referred in the second part to ex drivers but it referred generally to the new system in the first.
The Tribunal was wrong in thinking that the first part also referred to the ex drivers (now operators).
On the whole, however, it is clear that the Company has not done anything illegal.
A person must be considered free to so arrange his business that he avoids a regulatory law and its penal consequences which he has, without the arrangement, no proper means of obeying.
This, of course, he can do only so long as he does not break that or any other law.
The Company has declared before us that it is quite prepared, if it was not already doing so, to apply and observe the provisions of the in respect of its employees proper where such provisions can be made applicable.
In view of this declaration we see no reason to interfere, because Parliament has not chosen to say that transport trucks will be run only through paid employees and not independent operators.
The appeal fails but in the circumstances of the case we make no order as to costs.
G.C Appeal dismissed.
| The respondent company carried on the business of transport and removal of goods by road.
It owned a fleet of trucks and employed drivers and cleaners to run them.
In 1963 the company, finding difficulty in observing the provisions of the , introduced a scheme whereby the trucks, instead of being run by the company itself were hired out to contractors at a fixed rate per mile.
Employees of the company who were engaged in running the trucks resigned their jobs and most of them who had for merly been drivers became contractors under the scheme.
The workmens ' Union however raised a dispute asking for the reinstatement of the ex employees who had been given work on contract basis.
The Tribunal held that the contract system could not be said to be an unfair labour practice, for the ex employees were never coerced or forced to resign their jobs, and they got more benefits from the contract system than from their original contract of employment.
In appeal to this Court the Union contended that the ex employees of the company continued to be workmen notwithstanding that they were posed as independent contractors, that the beneficent legislation conceived in the interests of transport workers was being set at naught by the company, and that the setting up of the contract system amounted to unfair labour practice.
Held: (i) Since the drivers had resigned their jobs they could not be said to be employed in the Motor Transport undertaking.
The word 'employed ' in the definition of Motor Transport.
Worker is not used in the sense of using the services of a person but rather in the sense of keeping a person in one 's service.
Persons who are independent and hire a vehicle for their own operation paying a fixed hire per mile from their earnings cannot be said to be persons employed in the Motor Transport Undertaking in the sense of persons kept in service.
The operators were therefore not Motor Transport Workers within the definition.
[304F H] (ii) There was no bar in law to the introduction of the con tract system.
A person must be considered free to so arrange his business that he avoids a regulatory law and its penal consequences which he has without the arrangement, no proper means of obeying.
This, of course, he can do only so long as he does not break that or any other law.
[306 B C] (iii) Those who resigned did so voluntarily and they got substantial benefits under the new system.
The Tribunal was right in its conclusion that there was no exploitation of the ex employees.
There 301 was thus no unfair labour practice.
The present case was not analogous to the case of contract labour when employment of labour through a contractor or middleman put the labour at a disadvantage in collective bargaining and thus robbed labour of an important weapon in its armoury.
, [305E 306A.]
|
Civil Appeal Nos.
803, 834 to 83J of 1971.
From the Judgment and Order dated 4th January, 1971 of Punjab & Haryana High Court at Chandigarh in Letters Patent 1 Appeal No. 227 of 1970.
T. section Krishna Murthy Iyer and E.C. Agarwala for the Appellant.
V. C. Mahajan, Mrs. Urmila Sirur and Sanjive Puri for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Though we confess that during the course of the hearing we did feel somewhat perplexed as to the proper cons traction to be placed on the provisions of secs.
7, 7 A and 8 of the PEPSU Tenancy and Agricultural Lands Act, 1955, on second thoughts we think that only one conclusion is permissible.
The PEPSU Tenancy and Agricultural Lands Act, 1955 which was originally passed in 1955 and amended in 1955, was again amended in 1956.
The Act purports to amend and consolidate the law relating to tenancies of agricultural land and to provide for certain measures of land reforms.
Section 3 broadly defines "permissible limit" for the purposes of the Act to mean 30 standard acres of land and where such 30 standard acres on being converted into ordinary acres exceed 80 acres, such 80 acres.
Section 5 enables every land owner owning land exceeding 30 standard acres to select for personal cultivation from the land held by him in the State in parcel or parcels of land not exceed 640 ing in the aggregate the permissible limit and reserve such land for personal cultivation by intimating his selection in the prescribed form and manner to the Collector.
Section 6 requires the Collector to notify the particulars of all lands reserved for personal cultivation of a land owner under sec.
Chapter IV A (secs.
32 A to 32 A) deals with ceiling on land and acquisition and disposal of surplus area.
In particular sec.
32 A provides that notwithstanding anything to the contrary in any law, customs, usage or agreement, no person shall be entitled to own or hold as land owner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limit The subsequent provisions provide for the determination of the surplus area and sec.
32 E provides for the vesting of surplus area in the State Government.
We have to note here that sec.
32 DD provides that tenancies created after the commencement of the 1956 amendment in any area which could have been declared as surplus area have to be declared for the purposes of determining the surplus area of any person.
Section 32 F vests the Collector with the power to take possession of surplus area and sec.
32 J describes the modes of disposal of surplus area.
We are not really concerned with all those provisions for the present purpose.
Chapter III of the Act deals with "General rights of tenancy".
Section 7 prescribes that no tenancy shall be terminated except in accordance with the provisions of the Act or except on any of the following grounds.
The grounds mentioned are non payment of rent within period of six months after it falls due, subletting without the consent in writing of the land owner, cessation of personal cultivation of the tenant in the manner and to the extent customary in the locality, user of the land or any part of it in a manner which is likely to render it unfit for the purpose for which the land was leased and the refusal by the tenant, on demand in writing, to execute a kabuliyat agreeing to pay rent in accordance with the statutory provisions.
What has to be particularly noticed is that the tenancy cannot be terminated except in accordance with the provisions of the Act or except on any of the grounds mentioned in sec.
In other words, a tenancy may be terminated in accordance with the provisions of the Act or on any of the grounds mentioned in sec.
Therefore, it means that the tenancy may be terminated on any grounds mentioned in sec.
7 or in accordance with the provisions of the Act provided, of course, other provisions of the Act provide for the termination of tenancy.
In the case of tenancies subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, sec.
7 A provides for two grounds for termination of tenancy in addition 641 to the grounds specified in sec. 7, namely, (i) that the land comprising the tenancy has been reserved by the landowner for his personal cultivation in accordance with the provisions of Chapter II and (ii) that the landowner owns 30 standard acres of less land and the land falls within his permissible limit.
In the case of tenancies commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, sec. 8 provides that the minimum term of the tenancy shall be three years, subject to the provisions of sec.
The question raised for consideration in the present case is whether in the case of tenancies commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, sec.
8 provides for an additional ground for terminating a tenancy, namely, the expiry of the period of tenancy provided it is not less than three years.
The learned counsel for the appellant argued that sec.
8 is made expressly subject to the provisions of sec 7 and when it prescribes that the minimum period of tenancy shall be three years, it cannot possibly mean that the tenancy may be terminated before the expiry of the term of three years According to the learned counsel, sec. 8 means that a tenancy may not be terminated on any ground whatsoever for three years but may be terminated after the term of three years but may be terminated on any of the grounds mentioned in sec.
Such a construction in our opinion would lead to some absurd and anomalous results.
For example, one of the grounds mentioned in sec. 7 which enables the termination of the tenancy is the user by the tenant of the land in a manner which is likely render the land unfit for the purpose for which it was leased him.
If the construction placed upon sec. 8 by the appellant is to be accepted, a tenant may, with impunity as soon as the land is leased to him, use the land in a manner to render the land unfit for the purpose for which it was leased to him, yet the land owner would have to wait for a term of three years before terminating the tenancy.
This appears to us to be an absurd consequence and it is not possible for us to accept a construction which will lead to such disastrous results.
The only alternate construction of sec.
8 is to hold that quite distinctly from the provisions of sec.
a tenancy may not be terminated within a period of three years after its commencement if the tenancy commenced after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, that is to say, while the provisions of sec. 7 would always be available in the case of tenancies commencing after the Second Amendment Act, a tenant may also be evicted on the termination of the period of tenancy which shall not be less than three years.
So construed it may appear as if the words 'subject to the pro 642 visions of sec.
7 ' are being read by us as 'notwithstanding the provisions of sec. 7; but that may not be a correct way of looking at what we have said.
The proper way of looking at the scheme of secs.
7, 7 A and 8 is to hold that while sec.
7 enumerates the grounds on which any tenancy may be terminated, sec.
7 A provides for additional grounds on which tenancies subsiting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated and sec.
8 provides for the termination of a tenancy commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment), 1956, apart from the grounds mentioned in sec 7.
That is why sec.
7 itself uses the word 'no tenancy shall be terminated except in accordance with the provisions of the Act or except of any of the following grounds, ' that is to say, a tenancy may be terminated either on the grounds mentioned in sec.
7 or in accordance with the provisions of the Act.
We think that this is the only reasonable and permissible way of construing sec.
8 in the setting of secs 7, 7 A and 8.
The view taken by us appears to have been taken consistently by the Punjab High Court in the last 15 years and construing as we are doing a State Act, we do not think that there are any compelling reasons justifying any departure from the view taken by the Punjab High Court for so long.
The appeals are, therefore, dismissed.
No Costs.
N. V. K. Appeal dismissed.
| Whether landowner has to wait for a term of three years before terminating tenancy.
The PEPSU Tenancy and Agricultural Lands Act, 1955 which was originally passed in 1955 and amended in 1955 was again amended in 1956.
The Act purports to amend and consolidate the law relating to tenancies of agricultural land and to provide for certain measures of land reforms.
A tenancy may be terminated in accordance with the provisions of the Act or on any of the grounds enumerated in section 7; namely non payment of rent within a period of six months, subleting without written consent, cessation of personal cultivation of the tenant, user of the land in a manner which is likely to render it unfit, and refusal by the tenant on demand in writing to execute a kabuliyat.
In the case of tenancies subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, section 7 A provided for two grounds for termination of tenancy in addition to the grounds specified in section 7, namely, (i) that the land comprising the tenancy has been reserved by the landlord for his personal cultivation in accordance with the provisions of Chapter II, and (ii) that the landowner owns 30 standard acres or less of land and the land falls within his permissible limit.
In the case of tenancies commencing after the commencement of Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, section 8 provided that the minimum term of the tenancy shall be three years, subject to the provisions of section 7.
In the appeals to this Court on the question, whether in the case of tenancies commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, section 8 provided for an additional ground for terminating a tenancy, namely, the expiry of the period of tenancy provided it is not less than three years.
639 Dismissing the Appeals, ^ HELD: The proper way of looking at the scheme of sections 7, 7 A and 8 is to hold that while section 7 enumerates the grounds on which any tenancy may be terminated, section 7 A provides for additional grounds on which tenancies subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated and section 8 provides for the termination of a tenancy commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 apart from the grounds mention d in section 7.
That is why section 7 itself uses the word 'no tenancy shall be terminated except in accordance with the provisions of the Act or except on any of the following grounds. ' that is to say, a tenancy may be terminated either on the grounds mentioned in section 7 or in accordance with the provisions of the Act.
[642A C]
|
N: Criminal Appeal No. 120 of 1971.
Appeal by Special Leave from the Judgment and order dated the 24th July, 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No. 581 of 1968.
A. N. Mulla and O. N. Mohindroo for the Appellant.
D. P. Uniyal and O. P. Rana for the Respondent.
The Judgment of P. N. Bhagwati and R. section Sarkaria was delivered by R. section Sarkaria, J. Beg, J. gave a separate opinion.
BEG, J. I have had the advantage of going through the judgement of my learned brother Sarkaria.
I confess that I do not feel confident enough about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities.
But, I think that what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt for the reasons given below.
The findings of the Trial Court on the defence version indicate that a question of law arise here which seems to have troubled several High Courts.
It gave rise to two Full Bench decisions of the Allahahad High Court, the first in Parbhoo vs Emperor,(l) and the second in Rishi Kesh Singh & ors.
vs the State( ').
It does not seem to have been considered in the same form by this Court.
r I think this is an appropriate case in which this Court could consider and decide it, and, it is because this aspect of the case was ignored by the Trial Court as well as the High Court that I consider this to be a fit case for a reconsideration of evidence and interference by this Court under Article 136 or the Constitution.
The Trial Court, after assuming that there may be some truth in the defence version that Ram Nath had gone to the scene of occurrence with a bhala, said: "Even if Ram Nath had arrived there armed with bhala, there could be no apprehension of death or grievous hurt to any one of the accused persons as the accused persons were armed with gun and pistol and could defend themselves if Ram Nath tried t(3 strike them with 'bhala '.
Pratap and Suresh 'accused could not be justified in firing gun shots and pistol shots at Ram Nath in the expectation that Ram Nath may reach the place where Puttu Lal accused was standing and may strike him with 'bhala '.
(1) A.l.
R. 1941 All.
402 (FB).
(2) AIR 1970 All.
Sl (FB).
760 Pratap and Suresh accused had started from their house A with gun and pistol before they had known about the reaching of Ram Nath at that place with a 'bhala '.
It can reasonably be inferred from the own case of the defence that Pratap and Suresh accused, or at least Pratap accused, had arrived there with the intention of committing the murder of Raj Kumar or of any body who may interfere in the wordy duel between Raj Kumar P.W. and Puttu Lal accused".
This shows that the Trial Court was inclined to believe that the defence version was true to the extent that Ram Nath had rushed to the scene of occurrence with a bhala, when a quarrel between the two sides was taking place.
But, it overlooked here that Ram Nath, while going to the help of Raj Kumar, had actually expressed his intention to break the heads of members of Puttu Lal 's party.
At any rate, according to the prosecution evidence.
, Ram Nath was acting in such a way as to appear like a "lion" bent on interference to protect Raj Kumar in a quarrel between the two sides.
If this was Ram Nath 's conduct, could he not have done something which gave rise to the right of private defence of person ? If that right had arisen how could shooting him be murder ? Even if it was exceeded the offence could not be culpable homicide amounting to murder.
Why should Pratap, the appellant, have spared Raj Kumar who, according to the prosecution evidence itself, had given offence to Puttu Lal in the past and then on the date of incident by actually demolishing a nali and then advancing towards him with his phawra, threatening to strike Puttu Lal, but shoot at Ram Nath who appeared subsequently and was, according to the prosecution version, quite unarmed ? The prosecution evidence is that Puttu Lal had called his son Pratap and asked him to bring his gun only when Raj Kumar had threatened to attack him with his phawra and had advanced towards Puttu Lal.
Nevertheless, Pratap and Suresh are alleged to have shot down Ram Nath, even though Ram Nath was empty handed, but did nothing to Raj Kumar who was, according to the prosecution version, more offensive and threatening with a phawrah and was the cause of the whole trouble Such conduct, attributed to Pratap and Suresh, in the setting alleged, seems quite unnatural and eccentric.
Raj Kumar, P.W. 1, also stated that Atma Ram, Achhe Ram and Sia Ram, Pradhan, took their stand in parti land at about the same time as Ram Nath had arrived on the scene and had asked Ram Nath not to loose heart or to be discouraged as he was coming to deal with each one of Raj Kumar 's adversaries.
Then, at Puttu Lal 's instigation, Pratap and Suresh are alleged to have shot at Ram Nath.
Why is it that this version of the obviously interested Raj Kumar, PW 1, is, only supported by two chance witnesses of another village, but neither Atma Ram nor Achhe Ram, nor Sia Ram, Pradhan of village Sant Kuiyan, who had, according to the prosecution version, witnessed the occurrence not produced by the prosecution at all ? The prosecution could select its witnesses.
But, why was such an objectionable selection made ? Was it not a case in which the Court should have exercised its power under Section 540 Criminal Procedure Code to summon at least Sia Ram 761 Pradhan, in whose grove Ram Nath was shot, so as to ascertain the whole truth more satisfactorily ? Had not the Trial Court and the High Court too readily assumed that absolute truth fell from the lips of prosecution witnesses as regards the commencement of aggression even when their own statements contained admissions indicating that the whole or the real truth had not been revealed by them ? These are some of the doubts which the rather mechanical examination of evidence by the Trial Court and the High Court do not dispel.
The question which arises in this case is: Even if the defence version is not held to be fully established, by a balance of probabilities, were there not sufficient pointers in evidence of what was probably the truth which leaked out from some statements of the prosecution witnesses themselves ? They had indicated the bellicose and threatening attitude of Ramnath while he was advancing.
Did this not tend to corroborate the defence version that he was actually advancing menacingly armed with a bhala piosed for an attack with it when he was shot at ? It was held in the case of Rishi Kesh Singh (supra) by a majority of a Full Bench of nine Judges of the Allahabad High Court explaining and relying upon the decisions of this Court discussed there (at p. 51): "The accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the built of the accused".
In that case, the result of a consideration of the decisions of this Court in relation to the provisions of Section 105 of the Evidence Act was summed up by me as follows (at page 97 98): ".
an accused 's plea of an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully.
These stages are: firstly, a lifting of the initial obligatory presumption given at the end of section 105 of the Act; secondly, the creation of a reasonable doubt about the existence of an ingredient of the offence; and, thirdly, a complete proof of the exception by 'a preponderance of probability ', which covers even a slight tilt of the balance of probability in favour of the accused 's plea.
The accused is not entitled to an acquittal if his plea does not get beyond the first stage.
At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt.
At the third stage, he is undoubtedly entitled to an acquittal.
This, in my opinion, is the effect of the majority view in Parbhoo '.
case which directly relates to first two stages only.
The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice." 18 L925SupCl/75 762 Provisions of Section 105 of the Evidence Act, which are applicable in such cases, contain what are really two kinds of burden of the accused who sets up an exception; firstly, there is the onus laid down of proving the existence of circumstances bringing the case within any of the General exceptions in the Indian Penal Code, or, within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, and, secondly, there is the burden of introducing or showing evidence which results from the last part of the provision which says that "the Court shall presume the absence of such circumstances".
The effect of this obligatory presumption at the end of Section 105 of the Evidence Act is that the Court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the criminal liability which would otherwise be there.
But, when both sides have led evidence of their respective versions, the accused can show, from any evidence on the record, whether tendered by the prosecution or the defence, that the mandatory presumption is removed.
the last mentioned burden is not really a burden of establishing the plea fully but of either introducing or of showing the existence of some evidence to justify the taking up of the plea.
The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough nor an acquittal.
D Section 105 of the Evidence Act was thus explained in Rishi Kesh Singh 's case (supra) (at P. 95): "Even a literal interpretation of the first part of Section 105 could indicate that 'the burden of proving the existence of circumstances bringing the case ' within an exception is meant to cover complete proof of the exception pleaded, by a preponderance of probability, as well as proof of circumstances showing that the exception may exist which will entitle, the accused to the benefit of doubt on the ingredients of an offence.
If the intention was to confine the benefit of bringing a case within an exception to cases where the exception was established by a pre ponderance of probability, more direct and definite language would have been employed by providing that the accused must 'prove the existence ' of the exception pleaded.
But, the language used in the first part of Section 105 seems to be deliberately less precise so that the accused, even if he fails to discharge his duty fully, by establishing the existence of an exception, may get the benefit of the exception in directly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused.
Again, the last part of Section 105, even if strictly and literally interpreted, does not justify reading into it the meaning that the obligatory presumption must last until the accused 's plea is fully established and not just till circumstances (i.e. not necessarily all) to support the plea are proved.
Moreover, a restrictive interpretation of Section 105, excluding an accused 11 from the benefit of bringing his case within an exception until he fully proves it, is ruled out by the declaration of law by the Supreme Court that there is no conflict between Section 763 105 and the prosecution 's duty to prove its case beyond reasonable doubt.
Hence, the obligatory presumption, at the end of Section 105, cannot be held to last until the accused proves his exception fully by a preponderance of probability.
It is necessarily removed earlier or operates only initially as held clearly by judges taking the majority view in Parbhoo 's case, 1941 All LJ 619 AIR 1941 All 402 (FB)".
It was also said there (at p. 89): "The legal position of a state of reasonable doubt may Be viewed and stated from two opposite angles.
One may recognise, in a realistic fashion, that, although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused 's lower burden of proving his plea by a preponderance of probability only, yet, there is, in practice, a still lower burden of creating reason able doubt about the accused 's guilt, and that an accused 's can obtain an acquittal by satisfying this lower burden too in practice.
The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although, it may be said, in defence of such a statement of the law, that it only recognises what is true.
Alternatively, one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution 's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.
This technically more correct way of stating the law was indicated by Woolmington 's case and adopted by the majority in Parbhoo 's case, and, after that, by the Supreme Court.
It seems to me that so long as the accused 's legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt, upon a consideration of the whole evidence, on an ingredient of an offence, are recognised, a mere difference of mode in describing the position, from two different angles, is an immaterial matter of form only.
Even if the latter form appears somewhat artificial, it must be preferred after its adoption by the Supreme Court".
(See: K. M. Nanavati vs State of Maharashtra AIR Applying the principle of benefit of doubt, as I had ' explained above, to the plea of private defence of person in the instant case, I think that, even if the appellant did not fully establish his plea, yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against Pratap on an essential ingredient of the offence of murder: the required mens rea.
After examining all the facts and circumstances revealed by the prosecution evidence itself and the defence evidence and considering the effect of non production of the better evidence available which for some unexplained reason, was not produced, I am not satis 764 fied that the plea of private defence of person can be reasonably ruled A out here.
This is enough, in my opinion, to entitle the appellant to get the benefit of doubt.
I may observe here that the High Court had not only failed to grapple with this difficulty arising from the evidence in the case and some of the findings of the Trial Court, which seemed to think that the intention to murder or the required mens rea for murder must be presumed from the mere fact of homicide (a wholly incorrect approach in a case where a plea of private defence had been raised and sought to be established by some evidence), but, the High Court itself started from a totally unsound premise when it observed: "It was Puttu Lal who was committing aggression by insisting that Raj Kumar should not dismantle the Nali It is again admitted by Puttu Lal that he cried out for help in response to which Pratap arrived armed with a double barrel gun.
" In other words, the High Court assumed that a mere insistence by Puttu Lal that Raj Kumar should not dismantle the nali amounted to an "aggression" begun.
The word "aggression" is generally used for an actual invasion of the property of another or an attack on the body of another.
It is true that it is not necessary that an actual attack should commence before a right of private defence can arise.
Nevertheless, a reasonable apprehension of injury could not be said to arise by a mere prohibition to dig up a "nali" or drain.
It could arise if a man is advancing aggressively towards others holding out threats to break their heads even if he is armed with a lathi with which he could carry out such a declared intention.
The extent of the right or its justification is another matter depending again upon facts which have a bearing on extent of the right or its reasonable exercise.
In the circumstances of the case before us, I think, we can hold, that, even if Ram Nath was not positively proved to be threateningly advancing with a bhala poised for attack towards Pratap, appellant, or Puttu Lal, yet, a consideration of all the probabilities and evidence on record leads us to infer that this was reasonably likely to be true.
If this was so, it is clear that the appellant must have discharged his gun when Ram Nath had advanced and come near enough in a manner which must have been so menacing as to raise an apprehension of an attack with the bhala.
Such an assumption fits in with medical evidence too showing that the shots were fired from a close enough range to cause charring.
Another feature of the case is that the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted Suresh, who was also alleged to have shot with his pistol" giving him the benefit of doubt because, unlike Puttu Lal and Pratap, he had denied his presence or participation in the occurrence and was said to be only distantly related to Puttu Lal.
765 I think, on an analysis of the whole evidence, that the appellant Pratap was also entitled to the benefit of a doubt which could be said to be reasonable.
I, therefore, concur in the order proposed by my learned Brother.
SARKARIA, J.
This appeal by special leave is directed against a judgment of the High Court of Allahabad dismissing the appeal of Partap appellant and maintaining his conviction under section 302, Penal Code.
The facts of the prosecution case as narrated at the trial by Raj Kumar, the star witness of the prosecution, were as follows: Raj Kumar had installed a Tubewell in his field known as 'Chharelawala.field ' in the revenue estate of village Sant Kuiyan, in the year 1962.
The water pumped out from this tubewell was utilised by him not only for irrigating his own fields but also those of the neighbours against charges.
Subsequently, Puttu Lal accused also set up a tubewell in his land situate in the vicinity of Chharelawala field.
Puttu Lal, too, started letting out the use of his tubewell on hire.
An unhealthy competition ensued between Raj Kumar and Puttu Lal in this water business, and their relations became strained.
There was a water channel running from north to south in Raj Kumar 's field through which Puttu Lal used to supply water to others.
To the south of Chharelawala field, there is grove belonging to Sia Ram, Pardhan of the village.
The tubewell of Puttu Lal is located towards the south of that grove.
To the west of the Chharelawala field, is a plot belonging to Puttu Lal.
Two or three days before the occurrence in question, there was an exchange of hot words between Raj Kumar and Puttu Lal when the latter insisted on taking water through the said channel.
Raj Kumar firmly refused Puttu Lal the use of that channel.
on S 1 1967, at about 7.45 a.m., Raj Kumar and his brothers Ramchander and Bhagwan Sahai, started demolishing their channel so that Puttu Lal should not be able to supply water through it.
About fifteen minutes thereafter, Puttu Lal and his son, Ram Parkash, appeared on the northern ridge of the grove of Siya Ram.
Puttu Lal was carrying a lathi and Ram Parkash a bhala.
Puttu Lal asked Raj Kumar and his companions not to demolish the channel.
Raj Kumar rudely refused asserting that the channel belonged to him and he had every right to erase it.
Raj Kumar advanced towards Puttu Lal threatening to break his head with the spade, and thus settle the matter once for all.
On being so threatened, Puttu Lal shouted to his son, the appellant, to come immediately with his gun.
In response to Puttu Lal 's call, the appellant, armed with the double barrel licensed gun of Puttu Lal, and Puttu Lal 's other son, Suresh, armed with a pistol, came.
A couple of minutes after the arrival of the appellant and Suresh, the deceased Ram Nath who was the son of Raj Kumar 's wife 's brother, came out running from the grove.
He shouted to 766 Raj Kumar not to be afraid as he would settle the matter with every A one of the accused and break their heads.
On seeing the deceased, Puttu Lal said: "He thinks himself to be a lion, let us see him first of all".
On this instigation, Partap fired his gun at Ram Nath from a distance of four or five paces.
On receiving the gun shot, Ram Nath turned back when he was hit by a second shot fired by Suresh from his pistol.
Ram Nath, dropped dead.
The accused then ran away taking their weapons with them.
Raj Kumar PW 1 went home, scribed the report.
ka 3, and handed it over in the Kain Ganj Police Station, 8 miles away, at 9.30 a.m.
After registering a case on the basis of this report, Sub Inspector Kartar Singh reached the spot and started the investigation.
He prepared the inquest report and sent the body for post mortem examination.
The autopsy was conducted by Dr. section P. Chaturvedi, PW 3, on 6 1 1967, at 12.40 p.m.
The Doctor found five gunshot wounds of entry and three of exit on the deadbody.
There was blackening around all the wounds of entry.
The death, in the opinion of the Doctor, was due to shock and haemorrhage on account of the gunshot wounds of the head and the right lung.
The accused surrendered in the court of the Additional District Magistrate, Farrukhabad on 7 1 1969, and thereafter their custody was taken over by the Police.
After conducting the preliminary enquiry the Magistrate committed Puttu Lal, Suresh and Partap accused for trial to the court of Session on charges under sections 302/34, 109 Penal Code All the three accused were convicted and each of them was sentenced to imprisonment for life and a fine of Rs. 200/ .
The plea of the accused was one of denial of the prosecution case.
Suresh pleaded alibi and alleged false implication.
Partap pleaded that the deceased was about to strike him with a bhalla and consequently, he fired two shots, in self defence, from his double barrel gun at the deceased.
The accused examined Chhote Khan, DW 1.
in defence.
The trial judge rejected the defence version and convicted and sentenced the accused as aforesaid.
In appeal, the High Court acquitted Suresh accused but maintained the conviction of Puttu Lal and Partap.
Before the admission of the special leave petition under Article 136 of the Constitution by this Court, Puttu Lal died.
Thus only the appellant 's conviction survives for consideration in this appeal.
The decision of the courts below rests mainly on the testimony of the three eye witnesses, namely, Raj Kumar, PW 1, Atma Ram PW 2, and Achhey Ram, PW 4.
Mr. A. N. Mulla, the learned Counsel for the appellant contends that the evidence of P.Ws. 2 and 4 was not worthy of credence; that being residents of another village and having failed to give a credible reason for their presence at the scene of occurrence, they were chance witnesses of the worst type; that as admitted by their brother" Bisheshar Dayal, PW 15, they were not only related to the deceased but were 767 stock witnesses of the Police.
that since the witnesses did not frankly and fully admit their mutual blood relationship" they were of a type to whom truth, even in trifles, appeared to be unpalatable; that the prosecution had failed to examine Siya Ram and Mahabir who were also named as eye witnesses in the F.I.R. and the courts below had erred in not drawing an adverse inference against the prosecution on that score.
Although this criticism levelled against P.Ws. 2 and 4 is not totally devoid of force, we do not think it a sufficient ground to depart from the settled rule of practice according to which this Court does not, in the absence of material irregularity, illegality or manifest error, itself reappraise the evidence.
In spite of these infirmities, the courts below have believed their presence at the time and place of occurrence.
The reasons given by the witnesses for their presence at the spot, may be vulnerable, even wrong.
True, they are residents of the neighbouring village, 1 1/2 or 2 miles away, and belong to the caste of the deceased.
PW 15 may be bearing some relationship with the deceased.
But the fact remains that PWs 2 and 4 have been named as eye witnesses in the F.I.R. which was lodged in the Police Station, 8 miles away, with utmost promptitude.
Be that as it may, the fate of the case did not depend on the evidence of these two witnesses.
Raj Kumar 's evidence corroborated by the F.I.R. and the other evidence on the record, was by itself, sufficient to hold that the appellant had fired a fatal shot at the deceased from close range with the double barrel gun of his father.
Thus, the only question that falls to be considered in this appal is, whether Ram Nath was shot dead by the appellant in the exercise of his right of private defence ? We have carefully scrutinised the judgments of the courts below.
In our opinion, their finding in regard to the plea of self defence is clearly erroneous.
They appear to have overlooked he distinction between the nature of burden that rests on an accused under section 105 Evidence Act to establish a plea of self defence and the one cast on the prosecution by Section 101 to prove its case.
It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution.
While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.
Since the approach of the courts below is basically wrong, it has become necessary to examine the material on record bearing on the plea of self defence.
This plea was specifically taken by the appellant at the trial in his examination under section 342, Cr.
It was put to Raj Kumar PW 1, the chief witness of the prosecution, in cross examination.
Raj Kumar replied: "It is wrong to suggest that Ram Nath would have murdered Partap if Partap had not fired at him.
Ram Nath had nothing in his hand.
" The courts below have accepted without demur the ipse dixit of Raj Kumar that the deceased was unarmed.
We find it impossible to swallow this so improbable a version the credibility of which was extremely underminded by the telling 768 circumstances appearing in the prosecution evidence, itself.
It was the admitted case of the prosecution that following the threatening gesture made by Raj Kumar to break Puttu Lal 's head with the spade, and the call given by Puttu Lal, the appellant came there armed with a gun and immediately thereafter, the deceased came running, proclaiming that he would break the heads of and settle the scores with everyone of the accused party.
It is further admitted that the deceased had reached at a distance of 3 or 4 paces from the appellant when the latter fired.
The blackening found around the wounds of entry on the deadbody by the medical witness, confirm that the deceased was within six feet of the assailant when he received those injuries.
Again, it is the case of the prosecution that at the time of the first gun fire the deceased was facing the appellant.
The medical evidence also confirms it, inasmuch as two entrance wounds (1 and 5) were located on the front side of the deceased.
From this circumstance it is clearly discernible that the deceased was charging at the gunman and had reached within a striking distance when his charge was foiled by the gun fire.
It is difficult to believe that the deceased would have behaved in the bold and truculent manner he did, if he were not armed with a formidable weapon.
It was put to Raj Kumar by the defence that if the deceased was empty handed as was alleged by the witness how did he proclaim to break the heads of the accused.
The witness had no satisfactory answer to it.
Conscious that he was suppressing the fact in question, all that he could say in befuddled embarrassment, was: '`I do not know with what weapon he was going to break the heads.
" The appellant 's plea that the deceased was going to strike him with a Bhalla, when the gun was fired, was highly probable.
one of the reasons given by the learned Judges of the High Court for ignoring this plea was that it was belated and had not been set up by the appellant during his examination in the Committal Court.
A glance at the record of that examination would show that he was not properly examined in that court.
Only a composite question with regard to all the circumstances of the prosecution case, was put to him in the Committal Court, which he denied.
The omission of the appellant to set up the plea of private defence in the Committal Court, therefore, was no ground to brand it as an after thought, particularly when there was foundation for it in the prosecution evidence, itself.
The circumstances appearing in the prosecution evidence, and the statement of the appellant recorded under Sec 342, Cr.
P.C. did not exhaust the material in support of the plea of self defence.
There was the direct testimony of Chhote Khan, DW 1, who testified that he was attracted from his house to the spot by the outcry of Puttu Lal accused which was to the effect, that he was being killed.
Witness saw Ram Nath deceased, armed with a spear, running towards the move of Siya Ram.
Thereafter, he heard two reports of gun fire.
On reaching the grove, the witness saw Ram Nath lying dead with a spear by his side.
Partap appellant and Puttu Lal were also seen running away from the scene.
Partap was carrying a gun.
Witness did not see Suresh and Ram Parkash there.
Excepting the precise words of 769 Puttu Lal 's call and the fact of the deceased being armed with a spear, Chhote Khan 's evidence in so far as it goes, fits in with the prosecution story.
The High Court has rejected hi, evidence without much discussion for two reasons; firstly, that he was not speaking the truth inasmuch as he stated that Puttu Lal was raising an outcry that he was being killed, because it was no body 's case that any body assaulted or attempted to assault Puttu Lal.
Secondly, the witness did not appear and make any statement before the investigating officer.
Neither of these was a good ground to reject his testimony but of hand.
Chhote Khan was a resident of the same village.
The place of occurrence is not situated at a far off distance from the village, Indeed, it was the prosecution case that the appellant and deceased came to the spot after hearing the shouts of Puttu Lal and Raj Kumar.
Chhote Khan 's coming to the spot from the village on hearing the same shouts, was therefore, equally probable.
In any case, his reaching the scene on hearing the reports of gun fire and seeing Ram Nath lying dead with a spear, was a highly probable fact.
Nor could his version that Puttu Lal was raising an outcry that he was being killed, be rejected outright.
It was admitted by Raj Kumar in cross examination, that he and his companions had advanced 2 paces towards the accused Puttu Lal and others, threatening to break their heads with the Phawra (spade and that the witness was then carrying (rather brandishing) the spade.
It is further admitted that it was after this threat that Puttu Lal gave a call to the appellant to come armed with the gun.
In the face of such a threat, it was not improbable for Puttu Lal to cry out for help saying that he was being killed.
Chhote Khan was an independent witness.
Nothing was brought out in cross examination to show that he was hostile towards the complainant party or had any special interest in the defence.
In the light of the above discussion, the conclusion is inescapable that the appellant had succeeded in establishing by a preponderance of probability, that the deceased was within a striking distance, poised for imminent attack on the appellant with a spear, when the latter fired the fatal gunshot.
In such a situation, the appellant had reasonable and immediate apprehension that he would suffer death or grieous hurt if he did not fire at the deceased.
Thus the death was, in all probability, caused by the appellant in the exercise of his right of private defence.
For the foregoing reasons we allow the appeal, set aside the conviction of the appellant and acquit him.
V.P.S Appeal allowed .
| The appellant, his father and another were charged with murder and convicted by the trial court.
The first information referred to eye witnesses, of whom the prosecution examined only two.
These two were chance witnesses of another village, but the others who belonged to the village where the occurrence took place, were not examined.
The third accused was acquitted on appeal.
by the High Court and the father died after his conviction was con firmed by the High Court.
The appellants plea of private defence was rejected both by the trial court and the High Court.
Allowing the appeal to this Court, ^ HELD (Per M. H. Beg J.): Section 105 of the Evidence Act contains two kinds of burden on the accused who sets up an exception (i) the onus of proving the existence of circumstances bringing the case within any of the general or special exceptions in the I.P.C. Or in any other law; and (ii) the burden of introducing or showing evidence, resulting from the last part of the provision which says that the court shall presume the absence of such circumstances.
The effect of the obligatory presumption at the end of Section 105 is that the court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the criminal liability which would otherwise be there.
But when both sides have led evidence of their respective versions the accused ' can show, from the evidence on record, whether tendered by the prosecution or the defence that the mandatory presumption is removed.
The last mentioned burden is not really a burden of establishing the plea fully but of either introducing or showing the existence of some evidence to justify the taking up of the plea.
The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for acquittal.
But the right of the accused to obtain the benefit of reasonable doubt is the necessary outcome and counter part of the prosecution 's undeniable duty to establish its case beyond reasonable doubt and that right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.
[762A D; 763E] In the present case, even if the appellant did not fully establish his plea.
yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against the appellant on an essential ingredient of the offense of murder namely the required mens rea.
An examination of all the facts and circumstances revealed by the entire evidence, including the effect of non production of the better evidence available which.
for some unexplained reason was not produced, shows that the plea of private defence cannot be reasonably ruled out.
Even if the deceased was not positively proved to be advancing threateningly with a spear poised for attack, towards the appellant or his father, yet, a consideration of the whole evidence leads to the inference that this was reasonably likely to be true.
[763C 764A E] (1) The trial court was inclined to believe that the defence version was true to the extent that the deceased had rushed to the scene with a spear.
It overlooked that the deceased while going to help P.W. 1, had actually expressed his intention to break the heads of the members of the accused party and that he was acting in such a was as to appear to be bent on physically aggressive interference in a quarrel between the two sides.
If that was the conduct of the deceased, it is reasonable to infer that he must have done some 758 thing which gave rise to the right of private defence in favour of the appeallant Otherwise, the conduct of the appellant, in sparing, P W. 1, who according to the prosecution had given offence to his father in the past and on the day of the incident.
and was advancing towards the father threatening to strike him with a spade, but shooting the deceased who appeared on the scene subsequently and was, according to the prosecution version unarmed becomes inexplicable If the right of self defence had arisen the shooting could not be murder, even if the right was exceeded the offence could not he culpable homicide amounting to murder.[760B F] (2) Further, the prosecution version is supported only by two chance witnesses, hut the other persons, who had according to the prosecution version witnessed the occurrence and whose names were mentioned in the FIR.
were neither produced by the prosecution nor were they examined as court witnesses [760G 761B] (3) Moreover the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted the third accused who was also alleged to have shot with his pistol [764H] Parbhoo vs Emperor, AIR 1941 All 402(FB) and Rishi Kesh Singh ors.
vs The State AIR 1970 All] 51 (FB), referred to (Per P. N. Bhagwati and R.S. Sarkaria, JJ) The appellant had established by a preponderance of probability, that the deceased was within a striking distance poised for imminent attack on the appellant with a spear, when the appellant fired the fatal shot, and hence.
the death was caused by the appellant in the exercise of the right of private defence.[769F G] (1) Nothing turns on the evidence or the two witnesses who were examined but the approach of the trial court and the High Court to the plea of self defense raised by the appellant was wrong necessitating a review of the evidence by this Court [767D,G] (2) The burden on the accused under s.105, Evidence Act is not as onerous as that which lies on the prosecution under s 101, Evidence Act, to prove its case.
While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability [767 T] (3) The plea of private defence was specifically taken by the appellant at the trial in his examination under s 342 Cr.P.C., and was put to P.W. 1.
the chief eye witness for the prosecution.
The High Court was wrong in branching the plea as an after though on the ground that he did not raise it in the committal court, especially when there is foundation for it in the prosecution evidence itself.
The record also shows that only a composite question was put to the appellant and that he was not properly examined in the committal court.
[767;768E G] (4) The appellant plea that the deceased was about to strike with his spear when the gun was fired was highly probable.
The prosecution case was that, following the threatening gesture made by P.W. 1.
to break the father 's head with a spade and the call given by him, the appellant came to the scene of occurrence with a gun; that immediately thereafter the deceased came proclaiming that, he would break the heads of, and settle scores with everyone of, the accused party, and that the deceased had reached a distance of 3 or 4 paces from the appellant and was charging at him with the appellant fired.
The prosecution story that the deceased was unarmed is improbable.
He would not have behaved in that bold and truculent manner unless he was armed with a formidable weapon.
[767H 767D] (5) The defence witness also testified that he was attracted from his house to the scene of occurrence by the outcry of the father, that he saw the deceased 759 armed with a spear running towards the scene of occurrence and that he saw the deceased Lying dead with a spear beside him.
He was an independent witness and nothing was brought out in the cross examination to show that he was either hostile towards the complainant 's party or had any special interest in the accused.
His version was probable and the High Court Was wrong in rejecting his evidence.
[769D F]
|
"Appeals Nos. 10481050 of 1963.
Appeals from the judgment and debreedated September 1958 of the Bombay High Court iii special Civil Applications Nos. 1100, 1161 and 1162 of 1958.
D. B. Padhya, J. B. Nagar and.
A.G. Ratnaparkhi, for the appellants (in all the appeals).
section G. Patwardhan, and R. H. Dhebar, for the respondents Nos. 2 and 3 (in all the three appeals).
414 The following Judgments were delivered Sarkar, J. These three appeals concern compensation payable under the Bombay Personal Inams Abolition Act, 1952 to the appellants for abolition of their inams.
Some of the appellants held shares in the inam village of Wanz and some in that of Dindoli.
The appellants had moved the High Court at Bombay by several petitions under articles 226 and 227 of the Constitution for quashing the decision of the Bombay Revenue Tribunal regarding the compensation.
The petitions were disposed of by the High Court by a common judgment.
These appeals are against that judgment under a certificate granted by the High Court.
The appellants had claimed compensation under several heads based on different grounds but two of them survive.
The first is that the appellants are entitled to compensation for loss of assessment payable to them by inferior holders, a special class, of tenants holding lands from them.
The Act does not expressly provide for compensation in respect of such lands.
Sub section (1) of section 17 of the Act however provides that if any person is aggrieved by the provisions of the Act abolishing any of his rights to or interest in property and if compensation for such abolition has not been provided for, such person may apply to the Collector for compensation.
The appellants, base their claim on this section.
Sub on (5) of this section makes the right under sub section
(1) unavailable in a certain case and the question is whether the appellant 's claim fell within it.
Now the sub section is in these terms: section 17(5) Nothing in this section shall entitle any person to compensation on the ground that any inam village or inam land which has (sic.) wholly or partially exempt from the payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code.
Clearly this sub section applies only to a certain kind of claim for compensation in respect of an inam village exempt from payment of land revenue.
The appellants say that their inams were not of this kind and so the subsection does not affect their claim.
According to them, their inams consisted of a grant of land re.
venue only.
The nature of an inam depends on the sanad or the terms of the grant.
The High Court held on a construction of the sanads that the inams were grants of the villages with exemption from land revenue, because the words of the grant conveyed the soil and rights over trees, water, mines etc.
This view is obviously correct.
The appellants then said that notwithstanding that the soil had been granted, their inams were none the less of land revenue only.
Their contention is that before the grants the tenants in 415 occupation paid revenue to the Government and thereafter to the inamdars and the latter being exempt from the liability to pay it over to the Government, the net result was that the inamdars retained the land revenue and were, therefore, the grantees thereof This contention is idle.
There is nothing to show that there were tenants holding lands in the villages before the grants which were made in 1794 and 1803 respectively and whether they paid anything and if so, what ? Furthermore, what the tenants paid to the inamdars (holders of the inams) after the grants was rent and not revenue; it was for the inamdars to fix the amount of it or forego it altogether if they so liked.
What the tenants paid to the inamdars.
was not something which was due to the Government which the inamdars kept to themselves having been exempted from the liability to pay it over to the Government; it was rent due to the inamdars.
It was next said that whatever might have been the position earlier, after the introduction of the survey in the villages in 1900 under the Bombay Land Revenue Code, 1879 what a tenant paid to, an inamdar was land revenue.
There is no justification for this.
contention either.
No doubt since the introduction of the survey the amounts payable by the tenants to the inamdars were all assessed under the Code.
The nature of the assessment payable was not however altered thereby nor did it become land revenue.
The survey fixed the amount payable by, a tenant to the inamdar and gave him certain rights.
It also conferred certain benefits on the inamdar in the matter of the realisation of his dues.
The fact that the assessment was made in the same way as land revenue.
made no difference.
It did not change the right to the assessment.
Notwithstanding all this the inamdar remained the grantee of the soil and a person who was not liable to pay revenue in respect of it and likewise the tenant remained liable as before to pay rent to the inamdar.
Furthermore, the distinction between the two kinds of grants, is well recognised and has been maintained by the Act by specifying in section 2 (1)(e) that an inam means a grant of a village with exemption from liability to pay land revenue and also a grant of land revenue only.
The appellants ' contention would in effect wipe out this distinction and cannot therefore be accepted.
The appellants then contended that even if their inams were grants of villages exempt from payment of land revenue, sub section (5) of section 17 did not bar their claim because they were not claiming compensation on the ground that the inam villages previously exempted from land revenue had under the Act been made subject to it.
They say that they have not been made liable to pay land revenue themselves and are only claiming the loss of the money that they used to collect from the inferior holders, the right to 416 which collection was abolished by the Act.
This contention is based on section 5 of the Act which is set out below: section 5.
(1) All inam villages or inam lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder and the provisions of the Code and the rules relating to unalienated land shall apply to such lands.
(2)(a) An inamdar in respect of the inam land in his actual possession or in possession of a person holding from him other than an inferior holder, referred to in clause(b) below, or (b) an inferior, holder holding inam land on payment of annual assessment only shall primarily be liable to the State Government for the payment of land Revenue, due in respect of such land held by him and shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant under the Code or the rules made thereunder or any other law, for the time being in force.
It seems to 'me that this contention is also without any foundation.
The inamdar 's right to appropriate to himself the assessment Axed by the survey and collected from the inferior holders existed on because ' be was exempt from the liability to pay land 'revenue.
If he was not so exempt, then what he collected from the inferior holders would have to be paid over to the Government. 'It would.
follow that the loss for ' Which the appellants claim compensation was really occasioned by the lands being subjected to revenue by section 5(2)(b).
The fact that the inamdar has not himself been made liable for the revenue in respect of the lands held by inferior holders makes no difference.
The substance of the matter is th the inamdar has been deprived of his right to the assessment from the inferior holders and the inferior holders have been made liable to pay that assessment to the Government.
So in actual result the inamdar has been deprived of his right to the assessment because the land has been made subject to payment of land revenue.
His claim for the loss of assessment is,, therefore, in reality based on the ground that the lands which were free from revenue have been made subject to it.
Sub section (5) of section 17 does provide that the bar mentioned in it operates only when land revenue is made payable the inamdar.
It also seems to me that any other interpretation would lead to a result which could not have been intended.
It is not in dispute that for the loss.
of rights in respect of lands in his own possession excepting those mentioned in section 7 or any lands in possession of persons holding from him other than as inferior holders an inamdar is 'not entitled to compensation.
It is admitted that 417 such compensation could not be allowed in view of section 17 (5).
It would be difficult to imagine a reason for the legislature to have made a distinction between such lands and lands in the possession of inferior holders.
The other part of the claim concerns the right to forfeit the ,inferior holders ' tenancies for nonpayment of rent and the right of reversion in respect of them.
These the appellants, have no doubt lost.
The Collector asked the appellants to produce evidence in support of their claims under this head.
They failed to do so.
They could not even cite one instance of the exercise of any such right.
It would be impossible to 'value the loss in respect of them as no material for doing so, is on the record nor was furnished by, the appellants.
No compensation can,.
therefore, be assessed or awarded for the loss of these rights.
The result is that the appeals fail and they are dismissed.
There will be no ' order as to costs.
Mudholkar, J.
These appeals are from a judgment of the Bombay High Court dismissing the writ petitions preferred by the ;appellants before it.
The appellants art co sharers either in the former Inam village Wanz or in the former Inam village Dindoli, both of which are situate in Surat District.
Under the Bombay Personal Inams Abolition.
Act, 1952 all personal Inams were extinguished and all Inam villages as well as all Inam lands were ,made liable to the payment of land revenue in accordance with the provisions of the Land Revenue Code.
The Act did not provide for compensation to the Inamdars with respect to the loss of their rights to hold their villages or lands free from payment of land revenue.
Under section 10 of the Act, however, compensation to the Inmadars was provided for the extinguishment of certain rights possessed by them in their Inam villages.
Those rights vest, by virtue of the provisions of section 7 of the Act, in the Government. "Section 17(1) of the Act provides for payment of compensation to a person aggrieved by the provisions of the Act which abolished, extinguished or modified any of his rights or interests in property .provided that compensation for such abolition, extinguishbment or modification of those rights had not ,been provided for in any of the provisions of the Act.
To this provision the following exception has been made in sub section (5): "Nothing in this section shall entitle any person to compensation on the ground that any main village or inam land which has wholly or partially exempt from the payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code.
" 418 It is common ground that in both the villages there were holders of land called inferior holders.
These were persons claiming through tillers in cultivating possession of different pieces of land in the Inam villages at the time of the grant of the Inams.
It is common ground that their rights to continue to be in possession of those lands and cultivate them were left in tact by the Inamdars and the grantees of the Inams were only entitled to claim rents from them.
It is common ground that under section 216 of the Bombay Land Revenue Code, 1879 settlement was introduced both in Wanz and Dindoli villages though at different points of time.
It is also the common case of the parties that after the introduction of the survey, land revenue was assessed on the lands held by the inferior holders and in place of their liability to pay such rent as may be fixed from time to time by the Inamdars they thenceforward were rendered liable to pay to the Inamdar only the land revenue assessed at the settlement.
So far as the Government was concerned the grantees of the villages Wanz and Dindoli were exempt from paying land revenue not only in respect of lands held by the inferior holders but also in respect of lands held by the Inamdars themselves or held by persons holding through the Inamdars.
Now, in consequence of the extinguishment of the right of the Inamdars to hold the villages revenue free they have been rendered liable to pay land revenue, to the Government in respect of the lands in their possession or in the possession of persons holding through them.
No liability is, however, cast upon them to pay to the Government land revenue in respect of lands in the possession of inferior holders.
This follows clearly from section 5 of the Act and is not disputed by either set of parties to the appeal.
No compensation is expressely provided for the loss of the right of the Inamdar to recover from the inferior holders land revenue assessed on the lands in their possession.
Mr. Padhya contends that the appellants would, therefore, be entitled to claim compensation in respect of this loss under section 17(1).
He points out that the loss of this right to the Inamdars is not occasioned because of the fact that the Ina= villages were made liable to pay full assessment but because the inferior holders have now been required to pay land revenue to the Government instead of to the bamdars.
It is difficult to accept this argument.
The relevant provision of the Act for consideration s.5 which runs thus: "5(1) AR inam villages or main lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder and the provisions of the Code and the rules relating to unalienated land shall apply to such lands.
(2)(a) An inamdar in respect of the inam land in his actual possession or in possession of a person holding from 419 him other than an inferior holder, referred to in clause (b) below, or (b) an inferior holder holding inam land on payment of annual assessment onlv shall primarily be liable to the State Government for the payment of land revenue due in respect of such land held by him ano shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant under the Code or the rules made thereunder or any other law for 'the time being in force." .lm0
It is sub section (1) of this section which creates liability to pay land revenue.
Sub section (2) then proceeds to say as to who is made liable to pay land revenue: the Inamdar or holder from the Inamdar or an inferior holder.
Clause (b) of sub section
(2) which deals with the liability placed on inferior holders has, therefore, to be read with sub section
(1) and when they are so read it would be clear that the loss resulting to the Inamdar is the direct consequence of the operation of these provisions.
In other words it is the direct consequence of the provisions of the Act that lands in possession of inferior holders are made liable to pay full assessment "in accordance with the provisions of the Code".
This in the context means, liable to pay full assessment to the Government.
It is true that by making this provision the Inamdars have sustained loss of one of their rights in property.
it is also true that if section 17(1) does not apply as in my view it does not applyno compensation is payable to the Inamdars.
However, as no argument has been raised before us that the aforesaid provision of the Act infringes the guarantee incorporated in article 31(1) of the Constitution and is, therefore, unconstitutional the provisions of section 5 of the Act must be held to be fully operative.
It was faintly urged by learned counsel that the Inamdar 's right of reversion and right of escheat have also been taken away by the Act and no compensation is provided foe it.
No provision was, however, brought to our notice by virtue of which it could be said that these rights of the Inamdars have at all been touched by the Act.
Even assuming that these rights have been taken away it seems to me that the grounds given by the High Court for rejecting the appellants claim are cogent and adequate In the 'result, therefore, I agree that the appeals be dismissed.
I would make no order as to costs.
Bachawat, J.
The appellants were holders of shares in inam villages; some held shares in the inam village of Wanz, others held shares in the inam village of Dindoli.
The inams were abolished by the Bombay Personal Inams Abolition Act, 1952.
By section 4 of the Act, save as expressly provided by or under the Act, all rights in the inams were extinguished Sections 10 and 17(1) provided for payment of compensation.
In view of sub section (5) of s.17, no compensation can be claimed under sub section
(1) of section 17 on the ground that any inam village or inam land which was wholly or partially exempt from payment of land revenue has been under the Act made subject to the payment of full assessment.
The appellants filed claims for compensation under sections 10 and 17 (1) of the Act before the Collector of Surat.
We are now concerned with the following.
two claims for compensation.
under section 17(1) of the Act: (1) loss for the abolition of the right of the appellants to recover assessment from the inferior: holders in respect of the lands in their possession; (2) loss for the extinction of the right of reversion and forfeiture in respect of those lands.
The Collect or of surat and the Bombay Revenue Tribunal concurrently held that the claim for compensation, in respect of the first item was barred by section 17(5) of the Act and in respect of the claim under the second head, the appellants failed to prove that they sustained any loss.
The appellants filed applications under articles 226 and 227 of the Constitution before the High Court at Bombay challenging the: Correctness of these findings.
The High Court dismissed the 'applications.
Section 2(1)(e) of the Act, classifies personal inams into two categories. ' The appellants Content that their inams were grants of land revenue and therefore personal inams of the second category specified in section 2(1)(e)(ii).
In respect of the personal inam ' of the second category, the bar of s .
17(5) is not attracted.
On the other ' hand, the respondents contend that the inams in question were grants of villages partially exempt from payment of the land revenue, and therefore personal, inams of the first category specified in s ' 2(1)(e)(i).
In respect of personal inams of the first category, the. bar of section 17(5) is attracted.
The High Court held and, in my opinion, rightly that the grants of the villages, on their true construction were grants of the soil.
The inamdars were not required to pay any land revenue except the quit rent and some small haqs.
Consequently, the grants were grants of villages with) partial exemption from payment of, the land revenue and were Personal inams, of the first category specified in section l(1)(e)(i).
The survey and settlement of the villages under section 216 of the Land Revenue Code, 1879 made no difference in the character of the inams.
The introduction of the survey settlement did not confer on the inferior holders the status, of occupants, nor render them liable to pay land revenue to the Government,, they continued to, be inferior holders under the inamdar and liable to Day the assessments to him.
In spite of the survey settlement, the villages continued to be alienated villages and the inams continued to be personal inams of the first category referred to in section 2(1)(e)(i) of the Act.
The High Court rightly held that the appellants are not en.; titled to claim compensation in, respect of the abolition of their 421 421 right to recover assessment from the inferior holders.
The inam lands ' no longer enjoyed either total or partial exemption from, payment of land revenue.
By section 5(1) of the Act, all inam lands are now liable to payment of full land revenue.
By section 5(2)(b), in respect of lands held by inferior holders on payment of assessment only, the inferior holders now enjoy the status of occupants, and are liable to pay the land revenue directly to the State Government.
In respect of those lands, the inamdars are neither entitled to collect the assessment from the inferior holders nor liable to.
pay land, revenue to the State Government.
Had the appellants ' right to recover assessment from the inferior holders not been abolished, they would have been entitled to recover the, amounts.
of assessments from the inferior holders and at the same time would have been liable to pay the identical amounts to the Government on account of land revenue.
The loss consequential on the abolition of the right to recover assessment is, therefore, nil.
The claim under this head is really on the ground that the.
inam lands which were formerly exempt from payment of land revenue have been subjected by the Act to payment of full assessment.
Such a claim is barred by section 17(5) of the Act.
With regard to the claim for compensation under the second head, the High Court rightly held that the appellants could not establish any loss under this head.
They failed to show that they exercised any right of forfeiture or claimed any right of reversion at any time.
I see no reason for disturbing the finding of the High Court and the Tribunals below on this point.
The appellants submit that in view of the ephemeral nature of their rights of reversion and forfeiture in respect of the lands held by the inferior holders, the grants of villages, as far as they relate to those lands, are assimilated to grants of land revenue.
They submit that the High Court and the Tribunals below while holding that the only right of the appellants in respect of those lands was to recover the assessments from the inferior holders, have inconsistently and unjustly held that the grants were grants of inam villages and not of land revenue so as to attract the bar of section 17(5).
This submission is not well founded.
A grant of a village or land with total or partial exemption from payment of land revenue is essentially different from a grant of land revenue, and the distinction has been preserved by the Act.
On the extinction of the grant of land revenue, the inamdar loses all rights in respect of the grant, and he is therefore entitled to full compensation under section section 17(1).
On the other hand, on abolition of the grant of an inam village or land, the inamdar is allowed to retain and enjoy various rights and benefits arising out of the grant.
Section 5(2)(a) gives him the rights of an occupant in respect of lands in his actual possession or in possession of persons holding from him other than 422 inferior holders.
The grants of inam lands, on their true construction, may include the right to mines or mineral products see Secretary of State for India vs Shantaram Naravan(1), and this right of the inamdar, if any, is preserved by section 9 'of the Act.
By section 10 of the Act the inamdar holding inam villages or lands is entitled to compensation in respect of any right or interest in any property referred to in section 7.
He is also entitled to compensation under section 17(1), but this right is subject to the provisions of section 17(5).
It will appear, therefore, that the Act treats the inams of the two ,categories very differently.
While the holder of the inam of the first category referred to in section 2(1)(e)(i) suffers from the disadvantage of the bar of section 17 (5) in respect of compensation, he enjoys numerous advantages which are denied to the holder of the inam of the second category referred to in section 2(i)(e)(ii).
The appeals fail, and are dismissed.
There will be no order as to costs.
Appeals dismissed.
(1) (1925) 1.
| The assessee firm, consisting of 14 partners, applied for registration under section 26A of the Income tax Act, 1922.
One G, who was a partner of the assessee firm, was also partner of another firm, the Ferozepore firm.
The Ferozepore firm consisted of 8 partners who had agreed that if any work was carried on by any one of them with others the profits and losses arising out of that work would be divided amongst all the partners in proportion to their shares in that firm.
In the course of the proceedings for the registration of the assessee firm all its partners had stated before the Income tax Officer that G was a partner in the as firm, not in his individual capacity but on behalf of the Ferozepore firm.
It was found by the Income tax Officer that the capital of the assesseefirm was supplied by G who had taken the amount from the Ferozepore firm, and, that the assessee firm was to carry on the same kind of business as the Ferozepore firm.
The Incom tax Officer rejected the application for the reason that 'in reality it was not G but the Ferozepore firm that was the partner of the assessee firm and consequently, the assessee firm was illegally constituted because : (i) Ferozepore firm could not legally be a partner in the assessee firm; (ii) the total number of partners of the assessee firm would then be 21; and (iii) the individual shares of the partners of the Ferozepore firm were not specified in the partnership deed of the assessee firm.
The Appellate Assistant Commissioner, on appeal, reversed that order, holding that G was a partner of the assaw firm in his individual capacity and not as a representative of the Ferozepom Am and that the effect of his agreement to share his profits and losses in the assessee firm with the other partners of the Ferozepore firm was only to constitute a sub partnership between G and the other partners in the Ferozepore firm, in respect of the share of G in the assessee firm.
The Appellate Tribunal upheld the order of the Appellate Assistant Commissioner on the short ground that there was no merit in the appeal in view of certain decisions cited by it, and also dismissed the application under section 66(1) to refer to the High Court four questions of law.
The Commissioner preferred a petition before the High Court under section 66(2) for directing the Tribunal to refer the questions; (1) whether G was a partner of the assessee firm in his individual capacity or representing the partners of the Ferozepore, firm, and (ii) whether the Ferozepore firm was a sub partnership; but the High Court dismissed the application holding that the questions of law were well settled.
In appeal to this Court, it was contended that : (i) under the circumstances, G was a partner of the assessee firm not in his individual capacity but on behalf of the Ferozepore firm; (ii) the High Court held that there was a sub partnership on the erroneous assumption that the: Ferozepore firm came into existence after the assessee firm was constituted; and since a sub partnership can be entered into only after a partnership was constituted, there could be no sub partnership between the members of the 177 Ferozepore, firm; and (iii) as a question of law arose out of the order of Tribunal, the High Court was bound to call for a statement of case.
HELD : (per Sarkar and Bachawat, JJ.) on the materials on record, the Appellate Tribunal was entitled to come to the conclusion that G and not the Ferozepore firm was the partner in this assessee firm [181 D E] Commissioner of Income tax vs Sivakasi Match Exporting.
Co. ; , followed.
(ii) The question whether there was a sub partnership between the members of the Ferozepore firm in respect of the share of G is not materail, because, assuming that there was no sub partnership, the members of the Ferozepore firm did not become partners in the assessee firm by virtue of the clause which only regulated the relationship of the partners of the Ferozepore firm inter se and created a partnership between them in respect of the share of G in the assessee firm.
[183 B D] Commissioner of Income tax vs Bagyalakshmi & Co. ; , followed.
(iii) Though a question of law arose out of the order of the Appellate Tribunal, since it was not a substantial question of law and the answer to the question was self evident, the High Court was not bound to require the Tribunal to refer the question.
[184 D] Per Mudholkar, J. (dissenting) : The main question which arose in the present cast was whether in the circumstances of the case, the assesseefirm was registrable under section 26A.
Ascertainment of the legal effect of &we circumstances would be a question of law.
The Appellate Assistant Commissioner and the Tribunal had not considered the question whether the application for registration reflected the true position as regards the real partners in the assessee firm.
The reasoning of the Appellate Assistant Commissioner was pertinent only to a case of sub partnership, and the Tribunal merely referred to certain decisions and dismissed the Department 's appeal.
Since the finding of the Appellate Assistant Commissioner and also of the Tribunal was arrived at by ignoring the relevant facts found by the Income tax Officer, the finding was vitiated by an error of law.
The High Court has also committed an obvious error as to when the Ferozepore firm was constituted and that error has led to the further error that the Ferozepore firm was sub partnership in relation to the assessee firm.
Moreover the decisions in Commissioner of Income tax vs Sivakasi Match Exporting Co. and Commissioner of Income tax vs Bagyalakshmi & Co. ; do not apply to the facts of this case, because, the observations in those cases are based on the fact that the person admitted as a partner in the firm seeking registration was admitted as an individual, whereas in the present case one of the partners of the firm seeking registration was a partner in his re presentative capacity.
Thus the question in the instant case was a substantial question of law which has not been settled.
Therefore, the High Court should have directed the Tribunal to refer the question.
[188 H; 190 H. 189 H; 188 A B; 192 B D]
|
Civil Appeal No. 891 of 1980.
From the Judgement and order dated the 22nd February, 1980 of the Karnataka High Court in Writ Appeal No. 949 of 1 974.
K. Parasaran, Soliciter General, Vineet Kumar, Naresh Kumar and Miss Deepika Saxena for the appellant.
K.K. Venugopal, K.N. Bhat, M. Kangaswamy, MRV.
Achar, section Ravindra Bhatt and Nanjappa Ganapathy for the respondents.
The Judgment of the Court was delivered by MADON, J.
This Appeal has been filed by the Karnataka State Road Transport Corporation pursuant to a certificate granted by the Karnataka High Court against its Judgment and order in Writ Appeal No. 949 of 1974 on the following two questions of law: "1.
Whether the conditions of a permit can be varied so as to increase the number of trips and/or the number of vehicles allowed to be operated under that permit ? 2.
Whether the conditions of a permit held by an existing operator on an inter State route exempted under the Kolar Pocket Scheme, can be varied so as to allow an increase in the number of vehicles operating under that permit ? Before embarking on a discussion of the above questions, it will be convenient to relate the facts which have given rise to this Appeal.
On February 2, 1966, the First Respondent, B.A. Jayaram, 772 had been granted by the Regional Transport Authority, Bangalore, a stage carriage permit on the inter State route Cuddapah in the State of Andhra Pradesh to Bangalore in the State of Karnataka for one trip only and a stage carriage permit No. 20/65 66 in respect of this route was issued to him on March 16, 1966.
This permit was counter signed by the State Transport Authority Andhra Pradesh, on March 21, 1967.
By Notification No. S.O. 111 dated January 10, 1968, published in the Mysore Government Gazette dated January 25, 1968, the Government of Mysore (now Karnataka) granted its approval under sub section (2) of section 68 D of the (IV 1939) (hereinafter referred to as "the said Act") to a scheme set out in the Schedule to the said Notification.
The said Scheme covered 87 intra State routes in the State of Karnataka set out in the Appendix to the said Scheme.
The effect of the said Scheme was to nationalize passenger transport service between Bangalore and various places in the Kolar District as also certain routes within the Kolar District.
For this reason, the said Scheme was popularly known as the Kolar Pocket Scheme '.
The class of service covered by the said Scheme was "Stage Carriages, Mofussil".
Clause 4 of the said Scheme inter alia provided as follows: "Whether the services are to be operated by the State Transport Undertaking to the exclusion, complete or partial, of other persons or otherwise: The State Transport Undertaking will operate services on all the routes, to the complete exclusion of other persons except that: (a) that existing permit holders on the inter State routes, may continue to operate such inter State routes subject to the conditions that their permit shall be rendered ineffective for the overlapping portions of the notified routes. " The said Scheme was implemented with effect from January 1, 1969, by issuing a stage carriage permit to the Appellant under sub section (1) of section 68 F of the said Act.
The route between Bangalore and Royalpad in the State of Karnataka formed part of the route between Bangalore and Cuddapah and was covered by the said Scheme.
Accordingly, the First Respondent 's permit for the said portion of the Bangalore Cuddapah 773 route became ineffective with the result that the vehicles operated by the First Respondent could not either pick up or set down passengers on the Bangalore Royalpad portion of the Bangalore Cuddapah route though they could traverse the said portion.
On January 24, 1973, the First Respondent made an application to the Karnataka state Road Transport Authority, the Second Respondent before us, for varying the conditions of the stage carriage permit granted to him by increasing the number of trips on the Bangalore Cuddapah route from one trip per day to two trips per day This was apparently done to eliminate an overnight halt at either of the two termini.
The said application was rejected by the Second Respondent on April 22, 1974, as not being maintainable in view of the said Scheme, without publishing it for inviting objections thereto.
The First Respondent thereupon filed a writ petition in the Karnataka High Court, being Writ Petition No. 3360 of 1974, against the said order of the Second Respondent.
On September 25, 1974, the said writ petition was allowed and the court issued a writ of mandamus to the Second Respondent to dispose of the First Respondent 's said application in accordance with law, holding that the said Scheme did not operate as a bar to increasing the number of trips of an existing inter State route.
In pursuance of the said order of the High Court, the Second Respondent published the First Respondent 's said application inviting representations in connection therewith.
In the meanwhile the Appellant filed on November 27, 1974, a writ petition in the Karnataka High Court, being Writ Petition No. 6399 of 1974, to recall the order made in the said Writ Petition No. 3360 of 1974 and to rehear the said writ petition after impleading the Appellant as a respondent thereto.
A learned Single Judge of the said High Court dismissed the Appellant 's said writ petition on December 2, 1974, holding that the Appellant was not a necessary party to the said Writ Petition No. 3360 of 1974.
On December 23/24, 1974, the Second Respondent granted to the First Respondent the additional trip applied for by him.
Against the order of the learned Single Judge dismissing its writ petition, the Appellant filed alia intra Court appeal under section 4 of the Karnataka High Court Act.
1961 (Mysore Act V of 1962), being Writ Appeal No. 949 of 1979 The Division Bench, which heard the said appeal, referred the following question to a larger Bench for its opinion: "If the condition of a permit for operating a stage carriage over a route is altered by increasing the maximum number of trips over that route, specified earlier ill that 774 permit, does such variation of the condition of the permit amount to grant of a new permit ?" By its Judgment delivered on September 19, 1979, the Full Bench answered the said question as follows: "If the condition of a permit for operating a stage carriage over a route is altered by increasing the maximum number of trips over that route specified earlier in the permit such variation of the condition of the permit does not amount to grant of a new permit.
" We will now relate the circumstances in which the Third Respondent, section Joginder Singh, the sole proprietor of Janatha Travels, Bangalore, and the Fourth Respondent, D.P. Sharma, sole proprietor of Sharma Transport, Bangalore, made their entry on the stage of this litigation.
The Third Respondent had been granted three stage carriage permits on three different inter state routes, namely, Bangalore to Cuddapah, Bangalore to Kalahasti and Bangalore to Vellore.
After coming into force of the said Scheme, the third Respondent made applications on June 11, 1979, to the second Respondent for varying the conditions of the said three permits by increasing the number of vehicles by an additional vehicle on each route and by increasing the number of trips from two to four on each route, that is, for two round trips These applications were granted be the second Respondent.
The Fourth Respondent did not file any objections to the said applications for variation made by the Third Respondent, nor does it appear that the had filed any objection to the said application for variation made by the First Respondent.
The Fourth Respondent, however., filed three writ petitions, being Writ Petitions Nos.
16247 to 16249 of 1979, in the Karnataka High Court against the orders of the Second Respondent granting variation of the Third Respondent 's said permits.
The said writ petitions were dismissed by a learned Single Judge of the Karnataka High Court and against these orders of dismissal the Fourth Respondent preferred three writ appeals, being Writ Appeals Nos. 1285 to 1287 of 1979.
He also made an application to implead himself as a respondent in the said Appeal No. 949 of 1974 out of which the present appeal before us arises.
The Fourth Respondent 's said application was granted and he was impleaded as Fourth Respondent to the said Writ Appeal No. 949 of 1974.
The Third Respondent before us was the Third Respondent in the said Writ Appeal No. 949 of 1974.
775 By Notification HD 45 TMI 76 dated January 10, 1980, the said Scheme was modified by substituting clause (d) thereof.
The substituted clause (d) inter alia provided as follows: "The State Transport undertaking will operate the services on all routes to the complete exclusion of other persons except the following : x x x x x (c) The operation of services by the permit holders who have already been granted permits by the Transport Authorities on the date of publication of the modified c scheme on inter State routes which are included in the inter State agreement entered into by the Government of any other State provided that the operator on such route shall not be entitled to pick up and set down passengers in such portion of the Notified routes.
" By its Judgment and order dated February 22, 1980, a Division Bench of the Karnataka High Court dismissed the said writ appeals filed by the Fourth Respondent .
The Division Bench held that in view of the opinion given by the Full Bench in the said Writ Appeal No. 949 of 1974 it was permissible under sub section (8) of section 57 of the said Act to vary the conditions of a stage carriage permit in respect of a route so as to increase the number of trips on that route allowed under such permit; that increase in the number of trips on a route can be effected either by increasing the frequency of operation of the existing number of vehicles playing on that route without increasing the existing number of vehicles operating on that route or by increasing the number of vehicles operating on that route; and that the Fourth Respondent was not an existing inter State Permit holder nor had filed any objection before the Second Respondent to the applications for variation made by the Third Respondent and had, therefore, no locus to file the said writ petitions.
By its Judgment and order, made on the same day, the said Division Bench dismissed the Appellant 's said Writ Appeal No. 949 of 1974 with no order as to costs and granted to the Appellant a certificate of fitness to appeal to this Court on the two questions which we have set out earlier; in pursuance of which the present Appeal has been filed.
The Fourth Respondent has also filed in this Court a petition for special leave to appeal, being Special Leave Petition No. 4771 of 1980, against the said Judgment and order in the said Writ Appeal No. 949 of 1974.
He has also 776 filed three other petitions for special leave to appeal to this Court, being Special Leave Petitions Nos.
5141 to 5143 of 1980 against the common Judgment and order of the said High Court in the said Writ Appeals Nos. 1285 to 1287 of 1979.
These petitions have been ordered to be listed after the disposal of this Appeal and will accordingly be disposed of by separate orders.
We now turn to the rival contentions raised before us at the hearing of this Appeal.
On behalf of the Appellant, it was submitted that under sub section (8) of section 57 an application to vary the conditions of a permit in respect of a matter specified in that sub section "shall be treated as an application for the grant of a new permit.
" Subsection (8), therefore, creates a legal fiction and a legal fiction must be taken to its logical conclusion.
An application to vary the conditions of a permit in respect of a matter specified in sub section (8) when granted would, therefore, result in the grant of a new permit.
One of the matters specified in subsection (8) is a variation of the conditions of a stage carriage permit by increasing the number of trips above the specified maximum.
If such variation were permitted by the result of the operation of the statutory fiction enacted in sub section (8) of Section 57 the permit so varied would in law be a new permit.
Under section 618 FF of the said Act no permit can be granted except in accordance with the provisions of a scheme.
The said Scheme prohibits of a new permit and, therefore, to vary the conditions of a stage carriage permit by increasing the number of trips or the number of vehicles would be tantamount to granting a new permit which would be contrary to the said Scheme and thus not permissible under section 68 FF.
According to the Appellant, the Judgment of the learned Single Judge in the said Writ Petition No. 3360 of 1974 filed by the : First Respondent allowing the said Writ Petition No. 3360 of 1974 and setting aside the order of the Second Respondent rejecting as not maintainable the First Respondent 's said application for varying the conditions of his inter State carriage permit by increasing the Dumber of trips by one and directing the Second Respondent by a writ of mandamus to dispose of the said application in accordance with law was erroneous as also the decision of the Full Bench in the said Civil Appeal No. 949 of 1974, holding that such variation did not amount to grant of a new permit.
It was further submitted that increasing the number of vehicles on a route resulted in an increase in the number of trips and an application for varying the conditions of a permit by increasing the number of vehicles allowed to ply on the route in respect of which such permit was given was, therefore, 777 equally an application for the grant of a new permit and such an application could not, therefore, be granted in respect of a portion of a route covered by the said Scheme.
On the other hand, it was submitted on behalf of The contesting Respondents that sub section (8) of section 57 did not create a legal fiction and all that it did was to provide that the procedure .
for considering an application for varying the conditions of a permit in respect of the matters specified in that sub section was to be the same as the procedure for considering an application for granting a new permit.
In the alternative, it was submitted that if sub section (8) of section 57 created a legal fiction, it was only for the purpose of the procedure to be followed in processing an application for a variation in the conditions of a permit in respect of a matter specified in that sub section and cannot be extended beyond that purpose so as to create another legal action, namely, that permit the conditions of which were so allowed to be varied would be deemed to be a new permit.
It was further submitted that the said Scheme, both prior to and after its modification, permitted the existing permit holders on inter State routes to continue to operate on such routes subject to the condition that their permits be rendered ineffective for the overlapping portions of the notified routes only, with the result that they could not pick up and set down passengers on such portions only.
It was also submitted that increasing the number of trips or vehicles on such inter .
State routes was not in any manner inconsistent with the provisions of the said Scheme, whether prior to or after its notification.
On the above rival contentions, two main questions arise for our consideration, namely, (1) Whether sub section (8) of section 57 creates a legal fiction by reason of which the grant of an application for variation in the conditions of a permit in respect of a matter set out in that sub section results in the grant of a new permit ? (2) Whether an increase in the number of trips or the number of vehicles above the maximum specified in an existing inter State stage carriage permit would be inconsistent with the provisions of the said Scheme ? In order to determine these questions, it is necessary to refer to the relevant provisions of the said Act.
Chapter IV of the said 778 Act, which consists of sections 42 to 68, provides for control of transport vehicles.
A "transport vehicle," is defined by clause (33) of section 2 as meaning "a public service vehicle or a goods vehicle".
A "public service vehicle" is defined by clause (25) of section 2 as meaning "any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage;".
The expression "stage carriage" is defined by clause (29) or section 2 as follows: "(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey." As the said Scheme and its modification relate only to stage carriages, we are not concerned in this Appeal with contract carriages or goods vehicles and it is unnecessary to look at the definitions of those expressions or the provisions of the said Chapter IV l elating to these types of vehicles.
Under section 42 no owner of a transport vehicle can use or permit the use of the vehicle in any public place (whether or not such vehicle is actually carrying any passenger or goods) save in accordance with the conditions of a permit granted or counter signed by a Regional or State Transport Authority or the Commission, that is, the Inter State Transport Commission constituted under section 63 A, authorizing the use of the vehicle in that place in the manner in which the vehicle is being used.
Section 43 confers power upon the State Government to control road transport by issuing directions to the State Transport Authority in the form of notifications in the official Gazette.
Section 44 empowers the State Government by notification in the official Gazette to constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in subsection (3) of section 44 and in like manner to constitute Regional Transport Authorities to exercise and discharge throughout specified areas the powers and functions conferred on Regional Transport Authorities by the said Chapter IV.
The said Chapter IV provides for grant of different permits, namely, state carriage permits, contract carriage permits, private carrier 's permits, public carrier 's permit and temporary Permits, as also for applications to 779 be made in respect of these classes of permits, the procedure to be A followed in dealing with such applications, for cancellation and suspension of permits and other cognate matters.
Section 45 sets out the general provisions with respect to applications for permits irrespective of the type of permits applied for and it prescribes the authority to whom an application for a permit is to be made.
Under sub section (3) of section 45 every applicant for the grant of a new stage carriage permit or public carrier 's permit is required to deposit, by way of security, with his application an amount in such manner and at such rate not exceeding Rs. 200 per motor vehicle, as the State Government may, with reference to each class of vehicle, by notification in the official Gazette, specify.
Under sub section (4) of section 45 the security so furnished is liable to be forfeited in whole or in part by the transport authority if it is satisfied that the application was made for the purpose of preventing the issue of a temporary permit under section 62.
The whole or part of this security deposit as has not been forfeited is to be refunded to the applicant, as soon as may be, after the disposal of his application.
Other sections in the said Chapter IV male special provisions with respect to applications for different types of permits.
Section 46 deals with an application for a stage carriage permit.
Such an application is to contain the particulars specified in clauses (a) to (f) of the said section 46.
The particulars required to be specified by clauses(a) to (c) of the said section 46 are material for our purpose and it will be, therefore, convenient to reproduce these clauses these clauses provide as follows: "(a) the route or routes or the area or areas to which the application relates; (b) the number of vehicles it is proposed to operate in relation to each route or area and the type and seating capacity of each such vehicle; (c) the minimum and maximum number of daily trips proposed to be provided in relation to each route or area and the time table of the normal trips.
Explanation For the purposes of this section 57, "trip" means a single journey from one point to another, and every return journey shall be deemed to be a separate trip.
" 780 Section 47 prescribes the matters which a Regional Transport Authority is to have regard to in considering an application for a stage carriage permit.
It also requires the Regional Transport Authority to take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the route or area or by any association representing persons interested in the provision of road transport facilities recognized in this behalf by the State Government or by any local authority of police authority within whose jurisdiction any part of the proposed route or area lies.
The said section also provides for reservation of certain percentage of stage carriage permits for the Scheduled Castes, and the Scheduled Tribes and persons belonging to economically weaker sections of the community.
Under section 48, subject to the provisions of section 47, a Regional Transport Authority may, on an application made to it under section 46 grant a stage carriage permit in accordance with the application or with such modifications as it deemed fit or refuse to grant such a permit.
Sub section (3) of section 48 provides for conditions which may be attached to a stage carriage permit.
Amongst the conditions which can be attached are conditions that the vehicle or vehicles be used only in a specified area or on a specified route or routes, the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions and a condition that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points.
Sections 49 to 51 deal with contract carriage permits, sections 52 and 53 with private carrier 's permits and sections 54 to 56 with public carrier 's permits.
Section 57 is important since the answer to the first question which we have to determine in this Appeal depends upon the true interpretation of sub section (8) thereof and in order to understand the scope and effect of that sub section, it is necessary to reproduce section 57.
The said section 57 provides as follows: "27.
Procedure in applying for and granting permits (1) An application for a contract carriage permit or a private carrier 's permit may be made at any time.
(2) An application for a stage carriage permit or a public carrier 's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or if the Regional Transport Autho 781 rity appoints dates for the receipt of such applications, on such dates.
(3) on receipt of an application for a stage carriage permit or a public carrier 's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations received will be considered: Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the manner of vehicles operating in the region, or any area or on any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under sub section (3) of section 47 or sub section (2) of section 55, as the case may be, the regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub section.
(4) No representation in connection with an application referred to in sub section (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.
(5) When any representation such as is referred to in sub section (3) is made, the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative.
(6) When any representation has been made by the persons or authorities referred to in section SO to the effect that the number of contract carriages for which permits have already been granted in any region or any area 782 within a region is sufficient for or in excess of the needs of the region or of such area, whether such representation is made in connection with a particular application for the grant of a contract carriage permit or otherwise, the Regional Transport Authority may take any such steps as it considers appropriate for the hearing of the representation in the presence of any persons likely to be affected thereby.
(7) When a Regional Transport Authority refuses an application for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal.
(8) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permits by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carrier 's permits by increasing the number of vehicle covered by the permit, shall be treated as an application for the grant of a new permit.
Provided that it shall not be necessary to treat an application made by the holder of a stage carriage permit who provides the only service on an route or in any area to increase the frequency of the service so provided, with out any increase in the number of vehicles.
(9) A Regional Transport Authority may, before such date as may be specified by it in this behalf, replace any stage carriage permit or public carrier 's permit or public carrier 's permit granted by it before the said date by a fresh permit conforming to the provisions of Section 48 or section 51 or section 56, as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit was valid; Provided that no condition other than the condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit.
783 (10) Notwithstanding anything contained in section 58, a permit issued under the provisions of sub section (9) shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective.
" We will must conclude our survey of the relevant provision of the said Act before proceeding to ascertain the correct interpretation to be placed upon sub section (8) of section 57.
Section 588 provides that a stage carriage permit or a contract carriage permit, other than a temporary permit issued under section 62, shall be effective without renewal For such period.
not less than three years and not more than five years, as the Regional Transport Authority may specify in the permit.
A private carrier 's permit or a public carrier 's permit other than 3 temporary permit is to be effective without renewal for a period of five years.
Under sub section (2) of section 58 an applications for renewal of a permit is to be made and disposed of as if it were an application for a permit.
Subsection (2) also prescribes the time limit within which applications for renewal are to be made and it further provides that other conditions being equal, an application for renewal shall be granted preference over new applications for permits.
Section 59 prescribes the general conditions to be attached to all permits.
Section 60 deals with cancellation and suspension of permits.
It is unnecessary to refer to the other provisions of the said Chapter IV.
Chapter IV A of the said Act provides for nationalization of road transport service.
Under section 68 B the provisions of Chapter IV A and the rules and orders made thereunder are to have effect notwithstanding anything inconsistent therewith contained in Chapter IV of the said Act or any other law for the time being in force or in any instrument having effect by virtue of any such law.
Section 68 C deals with the preparation of a scheme by a State Transport Undertaking for the purpose of providing an efficient, adequate, economical and property coordinated road transport service.
Such a scheme is to be published in the official Gazette and also in such other manner as the State Government may direct.
Section 68 D provides for filing of objections to a proposed scheme.
Under Sub section (2) of section 68 D, after considering the objections which may have been made to a proposed scheme and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in 784 the matter, the State Government may approve or modify the scheme.
The scheme as approved or modified is to be published in the official Gazette and it is there upon to become final and is to be called the approved scheme and the area or route to which it relates is to be called the notified area or notified route.
Section 68 F provides for cancelation or modification of approved schemes.
Section 68 F provides for issue of a stage carriage permit or a public carrier 's permit or a contract carriage permit in respect of a notified area or notified routes to the State Transport Undertaking.
Section 68 FF provides as follows: "68 FF Restriction on grant of permits in respect of a notified area or notified route.
Where a scheme has been published under sub section (3) of section 68 D in respect of any notified are or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the Provisions of the scheme " There is a proviso to the said section 68 FF with which we are not concerned.
We now turn to a consideration of the scope and effect of sub section (8) of section 57.
That sub section does not apply to applications to vary any of the conditions of a permit but applies only to applications to vary certain conditions of a permit.
These applications are: (1) an application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area; (2) an application to vary the conditions of a stage carriage permit by increasing the number of trips above tho specified maximum; (3) an application to vary the conditions of a stage carriage permit by altering the route covered by it; (4) an application to vary the conditions of a contract carriage permit by increasing the number of vehicles covered by the permit: and (5) an application to vary the conditions of a public carrier 's 785 permit by increasing the number of vehicles covered by the permit.
In all these five cases, sub section (8) provides that the application "shall be treated as an application for the grant of a new permit".
As seen above, under section 68 F when a scheme has been approved and published under sub section (3) of section 68 D in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the ease may be, is prohibited from granting any permit except in accordance with the provisions of that scheme.
The said Scheme confers a right upon the Appellant to op rate the services on all routes mentioned in the appendix to the said Scheme to the complete exclusion of all other persons except existing permit holders on inter State routes with the condition that the permits of such existing permit holders were to be rendered ineffective for the overlapping portions of the notified routes and they would not be entitled to pick up or set down passengers on such portions of the notified routes.
If the effect of sub section (8) of section 57 were as contended for by the Appellant, that is, if the said sub section (8) were to create a legal fiction by which an application for variation of the conditions of a permit of the nature referred to in that subsection is to be deemed to be an application for the grant of a new permit and such variation when granted would result in the grant of a new permit, then clearly by reason of the prohibition contained in section 68 FF, the granting of such application would be inconsistent with the provisions of the said Scheme and would not be permissible in law.
Considerable emphasis were placed on behalf of the Appellant on the words ' shall be treated as an application for the grant of a permit occurring in the said sub section (8) and on the basis of this phraseology, it was submitted that an application for variation of a condition of a permit referred to in subsection (8) of section 57 was by a fiction of law put on the same footing as an application for the grant of a new permit and it, therefore, followed as a corollary that such an application if granted would result in the grant of a new permit.
In a passage which has become a classic Lord Asquith in the House of Lords in the case of East End Dwellings Co. Ltd. v Finsbury Borough Gouncil said: 786 "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.
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 " This passage has been referred to or quoted with approval in a number of decision of this Court.
One of the earliest of them as the State of Bombay vs Pandurang Vinayak Chaphalkar and others.
It is unnecessary to refer to other cases of this Court in which this passage was cited and approved.
The question, however, is whether sub section (8) of section 57 creates a legal fiction.
Admittedly, the language of that sub section is not one which is normally used by legislature in creating a legal fiction.
Sub section (8) does not state that an application of the nature referred to in that subsection is to be deemed to be an application for the grant of a new permit which would have been the case were the intention of Parliament to create a legal fiction.
The arguments on behalf of the Appellant are founded upon a basis which has no relation to the purpose underlying sub section (8).
Section 57 is a procedural section, Its various sub sections form an integra whole providing for the manner in which an application for variation of certain conditions of a permit is to be made, the mode of inviting objections thereto an the disposal of such applications and objections.
Subsection (1) provides when an application for a contract carriage permit or a private carrier 's permit can be made.
Sub section (2) provides when an application for a stage carriage permit or a public carriages permit should be made.
Thus, these two subsections deal with the time when applications for grant of certain classes of permits can be made.
Sub sections (3) to (7) prescribe the procedure to be followed by the Regional Transport Authority when it receives an application for a stage carriage permit or a public carrier 's permit.
Sub section (9) deals with applications to vary certain conditions of particular permits.
Sub section (9) confers power upon the Regional Transport Authority to replace a stage 787 carriage permit, contract carriage permit or public carrier 's permit granted by it by a fresh permit and sub section (10) provides that such fresh permit shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective.
Sub section (8) comes immediately after sub sections (3) to (7) and when read in the context of these sub sections and in juxtaposition with them, it is clear that the legislative intent in enacting that subsection was to prescribe the procedure to be followed when an application for variation of this conditions of a permit referred to in that sub section is made, this procedure being the same as is laid down in sub sections (3) to (7) with respect to an application for a new stage carriage permit or a new public carrier 's permit.
It is for the purpose of providing that the procedure to be followed in the case of an application made under sub section (8) is to be the same as the procedure to be followed in the case of an application for a new permit that sub section (8) uses the words "shall be treated as an application for the grant of a new permit.
" By the use of these words what sub section (8) does is to incorporate in it the provisions of sub sections(3) to (7).
This is a very different thing from enacting a legal fiction.
We find that in a recent case, namely, Civil Appeal No. 3787 of 1983 Myls Shivchand Amolakchand vs Regional Transport Authority and another subsection (8) of section 57 has been interpreted in the same way as we have done.
In that case too there was a modification made in an approved scheme whereby plying of stage carriages by private operators upon a portion of the notified route connecting a district headquarter and not more than 20 kms.
in length was permitted.
On the said modification being made, the applicants whose permits for a portion of the notified route, namely, from Shivpuri to Sautanwana, had become ineffective on the coming into force of the approved scheme applied to the Regional Transport Authority for the extension of the route specified in their permits, so as to include the route from Shivpuri to Santawana.
The Regional Transport Authority rejected the said application inter alia on the ground that no extension of the route could be granted without following the procedure laid down in sub section (3) of section 47 of the said Act.
In the writ petition filed by the appellants before the High Court of Madhya Pradesh, the High Court took the same view.
This Court allowed the appeal and set aside the Judgment and order of the 788 High Court.
In that case too, this Court had to consider the effect of sub section (8) of section 57.
The Court observed: "The context in which sub section (8) occurs and its juxtaposition with sub section (3) to (7) in section 58 clearly indicate that what is sought to be made applicable to an application referred to in sub section (8) by treating it as an application for grant of a new permit, is the procedure set out in sub sections (3) to (7) of section 58 and nothing more.
An application to vary the conditions of a permit as set out in sub section (8) of section 57 is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in sub sections (3) to (7) of the said section.
It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant.
It is the same permit which now, after the granting of the application, covers the extended route.
" Even if sub section (8) of section 57 can be viewed as creating a legal fiction the question which would arise would be for what purpose such legal fiction was created.
As was observed by lord James in Ex Porte Walton, In re Levy; "When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.
" This passage was quoted with approval by the House of Lords in Arthur Hill vs East and West India Dock Company.
This principle of statutory interpretation has been accepted by this Court.
In The Bengal Immunity Co. Ltd. vs The State of Bihar and Ors it was held that "a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field.
" This was reiterated in The Commissioner of Income 789 tax, Bombay City, Bombay vs Amarchand N. Shroff, Maharani Mandalsa Devi vs M. Ramnarain P. Ltd. and others and Commissioner of Income tax, Gujarat vs Vadilal Lallubhai.
Assuming, therefore, that an application for variation of the conditions of a permit referred to in sub section (8) of section 57 is to be deemed by a fiction of law to be an application for the grant of a new permit the question to which we must address ourselves is for what purpose is such an application for variation deemed to be an application for grant of a new permit.
Reading sub sections (3) to (8) of section 57 as a whole, it is clear that the only purpose is to apply to such an application for variation the procedure prescribed by sub sections (3) to (7) of section 57 and not for the purpose of providing that when the application for variation is granted, the permit so varied would be deemed to be a new permit.
If a permit so varied were to be deemed to be a new permit, the result would be anomalous.
As we have seen, under sub section (3) of section 45 every application for the grant of a new stage carriage permit or a public carrier 's permit is to be accompanied by a deposit by way of security of an amount not exceeding Rs. 200 per motor vehicle as the State Government may, with reference to each class of vehicle, by notification in the official Gazette, specify.
The object of providing for such a deposit is made clear by sub section (4) of section 45.
The object is that if the transport authority is satisfied that such application was made for the purpose of preventing the issue of a temporary permit under section 62, then it can forfeit the whole or part of the security deposit.
consideration does not and cannot be applied to an application for variation of the conditions of a permit referred to in sub section (8) of section 57.
Further, under subsection (1) of section 58 a stage carriage permit or a contract carriage permit, other then a temporary permit, is to be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may specify in the permit.
Under sub section (2) of section 58, an application for renewal of a stage carriage permit or a public carrier 's permit is to be made not less than 120 days before the date of its expiry and an application for renewal of a permit in any other case is to be made not less than 60 days before the date of its expiry.
Under sub section (3) a permit may be renewed on an application made and 790 disposed of as if it were an application for a permit.
If a permit in respect of which a condition referred to in sub section (8) of section 57 is allowed to be varied is to be deemed to be a new permit, it would automatically follow that such a permit would get extended for a further period even though no application for its renewal was made and that in granting such variation, the Regional Transport Authority would have to specify for what period, not less than three years, the permit so varied would be effective.
Such a result could not have been in the contemplation of Parliament and has not been provided for.
Even though when the condition of a permit is allowed to be varied on an application made under sub section (8) of section 57, the permit so varied is not a new permit, the question still remains whether in the case of an existing inter State permit exempted under the said Scheme an increase in the number of trips or the number of vehicles allowed to be operated under such a permit would not be inconsistent with the provisions of the said Scheme.
We fail to see any inconsistency between an increase in the number of vehicles or trips allowed under such a permit and the provisions of the said Scheme.
So far as the portions of the inter State route covered by the said Scheme are concerned, the permits of the existing permit holders have been rendered ineffective.
Further, by the said Scheme as modified, the existing permit holders are not allowed to pick up or set down passengers on these portions of the notified routes.
Whether one vehicle or more traverse these portions or whether the same vehicle traverses such portion more than once cannot any manner affect the services operated by the Appellant on such portions since no passengers are allowed to be picked up or set down or such portions.
All that would happen is that these vehicles, in the course of their inter State operation would traverse these portions of the notified routes without in any way operating as stage carriages for such portions.
It is, therefore, clear that the Second respondent was in error in rejecting the First Respondent 's said application for variation without following the procedure laid down in sub sections (3) to (7) of section 57 merely on the ground that granting such application would be to grant a new permit and would be inconsistent with the provisions of the said Scheme.
The learned Single Judge was, therefore, clearly right in allowing Writ Petition No. 3360 of 1964 filed by the First Respondent and in issuing a writ of mandamus against the Second Respondent directing him to dispose of the First Res 791 pondent 's said application according to law.
We are further of the opinion that the High Court was right in dismissing the said Writ Appeal No. 949 of 1974 filed by the Appellant.
We would like to observe that it is difficult to understand how a certificate was granted by the High Court with respect to the first question contained in it.
The question as framed does not bring out the actual controversy between the parties.
The controversy was not whether the conditions of a permit can be varied so as to increase the number of trips or the number of vehicles allowed to be operated under that permit as mentioned by the High Court in the certificate granted by it.
The real controversy was whether when the condition of a permit is varied so as to increase the number of trips or the number of vehicles allowed to be operated under that permit it would amount to the grant of a new permit, the grant of which would not be in accordance with the provisions of the said Scheme by reason of the provisions of section 68 FF.
For the reasons set out above, this Appeal fails and is dismissed.
The Appellant will pay to Respondent Nos.
1 to 3 the costs of this Appeal.
Respondent No. 4 will bear and pay his own costs of this Appeal.
S.R. Appeal dismissed.
| Paragraph 516 B of the Punjab Jail Manual provided inter alia that after a person sentenced to life imprisonment had undergone detention for the period specified in that paragraph together with remission earned, his case should be submitted to the State Government for consideration of his pre mature release.
In 1971 the State Government issued instructions laying down certain minimum period of actual detention to be undergone by a person sentenced to life imprisonment before his case for pre mature release could be considered by the State Government.
In 1976 the State Government issued further instructions that cases of life convicts whose death sentence had been commuted to life imprisonment should be considered for premature release only after completion of 14 years of actual imprisonment.
The petitioners, who claimed to have satisfied the requirements of para 516 B and thus become entitled to be considered for pre mature release under that paragraph, alleged that following the 1971 and 1976 instructions the jail authorities were not submitting their cases to the State Government for consideration of their pre mature release.
The petitioners contended that para 516 B was a statutory rule and the subsequent executive instructions issued in 1971 and 1976 could not amend or alter the statutory rule thereby adversely affecting their rights under Para 516 B. Dismissing the five petitions and allowing two petitions, ^ HELD: A sentence of imprisonment for life is a sentence for the remainder of the natural life of the convict and there is no question releasing such a convict earlier in the absence of a formal order of commutation passed by the State Government either under sec.
55, IPC.
or sec.
433 (b) of Cr.
P.C. 1973 and that even the Remission Rules, though statutory, cannot over ride the statutory provisions contained in the Penal Code.
Admittedly, in the case of none of the petitioners before the Court has any order of commutation been passed by the State Government under either of the said provisions.
[746E F] 742 Pandit Kishori Lal AIR 1945 PC.
64; Gopal Godse ; ; Maru Ram; , and Kartor singh ; ; referred to.
Para 516.B of the manual itself contained executive instructions and had no force of a statutory rule.
If that be so it would always be open to the State Government from time to time to alter or amend or even withdraw such executive instructions by issuing fresh instructions.
But once fresh instructions for processing the cases for lifers for pre mature release are issued these must be uniformly and invariably applied to all cases of lifers so as to avoid the charge of discrimination under article 14 of the Constitution.
[748E F] In Naranjan Singh 's case (which decision is subject matter of challenge in criminal appeal arising from leave being granted in SLP (Crl.) No. 499 of 1983) the fact that the State Government had issued the 1971 instruction which substituted Para 516 B of the manual was not properly placed before the High Court and in the absence of such proper material the High Court took the view that the convict 's case for pre mature release was required to be considered in the light of the provisions of Para 516 B.
The view of the High Court cannot obviously be accepted.
[748G H] The contention of the petitioners that the State had been erroneously making a distinction between cases of prisoners who had been sentenced to death but whose sentences, on mercy petitions, had been commuted to life imprisonment and prisoners who had been straightaway sentenced to life imprisonment in the matter of consideration of their cases for pre mature release, must fail in view of the admitted position that cases of prisoners who have been sentenced to death but whose sentence on mercy petitions has been commuted to life imprisonment (who constitute a distinct class) will now be governed by the 1976 Instructions.
The view of the High Court in the case of Mehar Singh vs State of Punjab (not reported) that the 1976 instructions will not be applicable to cases of prisoners convicted earlier to that date is not tenable.
Clearly existing cases of life convict 's falling within that category will be governed by those instructions.
[749A C]
|
Appeals Nos. 333 334 of 1962.
Appeals by special leave from the preliminary order dated June 3, 1961 and Order dated September 29, '1961 of the Second Labour Court, Bombay in Applications (I.D.A.) Nos.
447 to 462 of 1958.
R.J. Kolah, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
section V. Gupte, Additional Solicitor General of India, K. T. Sule, M. C. Bhandare, M. Rajagopalas and K. B. Chaudhuri, for the respondents.
May 9.
The judgment of the Court was delivered by GAJENDRAGADKAR.J.
These 16 appeals arise out of petitions filed by the 16 respondents who arc the employees of the appellant, the Bombay Gas Co. Ltd., under section 33C (2) of the Industrial Disputes Act (No. 14 of 1947) (hereinafter called the Act).
These respondents are the District Siphon Pumpers and Heat Appliances Repairers Inspectors, and in their applications made before the Second Labour Court, Bombay, they alleged that as a result of the award made by the Industrial Tribunal in reference (I. T.) No. 54 of 1949 published in the Bombay Government Gazette on May 11, 1950, they were entitled to a certain benefit 712 and they moved the Labour Court to compute that benefit in terms of money and to direct the appellant to pay the same to them.
The direction in the earlier award on which this claim was based was made in these terms "The demand in respect of the workers of the Mains, Services and District Fittings Departments and Lamp Repairers and others who were till 1948 required to work on Sundays and in respect of whom a weekly day off was enforced thereafter without any corresponding increase in wages is granted.
In respect of the rest, the demand is rejected.
This demand was resisted by the appellant on several preliminary grounds which formed the subject matter of several preliminery issues framed by the Labour Court.
The principal contentions raised by the appellant by way of preliminary objections were.
that the applications made by the respondents were not maintainable under section 33C (2) of the Act and that the said applications were barred by res judicata by reason of awards made in other proceedings between the same parties.
It was also urged by the appellant that if the claim made by the respondents was held to be justified by the direction of the award on which the respondents relied, then the said direction was given by the earlier Tribunal without jurisdiction and as such, was incapable of enforcement.
On the construction, the appellant urged that the said direction did not cover the cases of the respondents, and it was argued that even if the said direction was held to be valid and it was also held that it gave the respondents the right to make the present claim, the conditions precedent prescribed by the said direction had not been satisfied by any of the respondents, and so, on the merits, their claim could not be sustained.
713 The Labour Court took up for trial 10 prcliminary issues in the first instance and by its judgment delivered on June 3, 1961, it rejected all the preliminary pleas raised by the appellant.
In other words, the preliminary issues framed by the Labour Court were found in favour of the respondents.
Thereafter, the applications were set down for hearing on the merits and evidence was led by both the parties in support of their respective claims.
On considering the evidence, the Labour Court came to the conclusion that the respondents had established their claims, and so, it has directed the appellant to pay to the respondents the respective amounts specified against their names in the award.
The plea raised by the appellant that the whole of the: claim made by the respondents should not be allowed on the ground of belatedness and laches, was, according to, the Labour Court, not sustainable under section 33C (2).
That is why the Labour Court computed the benefits claimed by the respondents in terms of money from the date when the earlier award became enforceable until the date of the present applications filed before it.
The appellant has come to this Court by special leave against the preliminary decision and the final order passed by the Labour Court in favour of the respondents.
Before dealing with the points raised in the present appeals by the appellant, it is necessary to set out briefly the terms of the earlier award on which the respondents ' claims are based.
In the previous industrial dispute, the employees of the appellant had made several demands.
In the present case, we are concerned with demand No. 11.
This demand was made in these terms "(a) Workers should get a paid weekly off.
(b) Weorkers of Mains, Services and District Fitting Departments and Lamp Repairers, 714 who have been adversely affected in the matter of their earnings on account of closing down of the overtime and Sunday Work, should be compensated for the loss suffered by them; compensation being the amount lost by them since the scheme was introduced.
" The Tribunal which dealt with this demand observed that demand No. 11 (a) had been badly worded.
There was, however, no doubt that what the employees claimed against the appellant was, in substance, a demand for paid weekly off only for those workers who were actually getting a weekly off, though without pay.
In dealing with this demand, the Tribunal noticed the fact that all the monthly paid staff employed by by the appellant got a paid weekly off,and so,it thought that there was no reason to dicriminate between the said staff and the daily rated workers.
In regard to the daily rated workers usually, their mothly income would be determined on the basis of a month consisting of 26 working days.
From the Statement of claim 'filed by the Union before the Tribunal, it appeared that prior to 1946, most of the workers used to work for all the seven days of the week.
By about August, 1946, however, weekly offs were enforced upon the major section of the workmen.
In June 1946, the appellant and the Union had entered into an agreement as regards wage scales of various categories of workers, and the Tribunal assumed that in respect of most of the daily rated workers, the wages must have been fixed on the basis of what their monthly income would be for 26 working days.
It is in the light of this.
background that the Tribunal proceeded to examine demand No. 11 (a).
The Tribunal noticed that in the case of the four categories of workers specified in demand No. 11 (b), difference had to be made because it could not be said in their case that their daily rates of 715 wages were fixed with reference to a month of 26 working days.
The result was that with the introduction of the weekly off, the wages of those workers were reduced.
Naturally, the Tribunal observed that in such a case, the concession of a weekly off would be a very doubtful benefit if as a result, the monthly income of the workers was to go down.
That is why the Tribunal gave the direction on which the respondents ' present claim is based.
This direction we have already quoted at the beginning of the judgment.
Having thus dealt with demand No. 11 (a), the Tribunal proceeded to examine, demand No, 11 (b), and it ordered that the workers of Mains, Services and District Fittings Departments and Lamp Repairers who had been adversely affected in the matter of their earnings on account of closing down of Sunday work, should be compensated for the loss suffered by them, by payment of their wages and dearness allowance for the weekly off given to them from June 1, 1949 onwards till the date of the publication of the award.
The question about the scope and effect of the provisions of section 33C (2) of the Act and the extent of the jurisdiction conferred on the Labour Court by it have been recently considered by us in the case of The Central Bank of India Ltd. vs P. section RajagopaIan (1).
That decision shows that the applications made by ' the respondents were competent and the Labour Court had jurisdiction to deal with the question as to the computation of the benefit conferred on the respondents in terms of money.
Mr. Kolah for the appellant contends that though the applications made by the respondents may be competent and the claim made by them may be examined under section 33C (2), it would, nevertheless, be open to the appellant to contend that the award on which the said claim is based is without jurisdiction and if he succeeds in (1) , 716 establishing his plea, the Labour Court would be justified in refusing to give effect to the said Award.
In our opinion, this contention is well founded.
The proceedings contemplated by section 330 (2) are, in many cases, analogous to execution proceedings, and the labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure the Labour Court under section 33C (2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity.
There is no doubt that if a decree put in execution is shown to be a nullity the executing court can refuse to execute it.
The same principle would apply to proceedings taken under s 33C (2) and the jurisdiction of the labour court before which the said proceedings are commenced.
Industrial Tribunals which deal with industrial disputes referred to them under section 10 (1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction.
They are entitled to deal the disputes referred to them, but they cannot I outside the terms of reference and deal with matters not included in the reference, subject, of course, to incidental matters which fall within their jurisdiction.
Therefore, on principle, Mr. Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents ' claim is based is without jurisdiction.
That takes us to the question about the merits of the plea raised.
by Mr. Kolah.
Mr. Kolah contends that the direction in question on which the respondent 's claim is based, is invalid for the reason that the Tribunal travelled outside the terms of reference when it added the words " 'and others" in the 717 said direction.
His argument is that the said direction has really been issued under demand No. 11 (b) and since the said demand was confined to the four categories of workmen specified in it, the Tribunal had no jurisdiction to extend the relief to any workers outside the said four categories by adding the words " and others".
Thus presented, the argument is no doubt attractive, but on a careful examination of the scheme of the award in so far as it relates to demand No. 11, it would be clear that the impugned direction has relation not to demand No. 11 (6), but to demand No. 11(a), and it is obvious that demand referred to all workers and was not confine to any specified categories of workers.
It is true that in dealing with the said demand, the Tribunal prominently referred to the four categories of employees specified in demand No. 11 (b), but that is not to say that it was confining the said demand to the said four categories.
The said four categories were mentioned specifically because they clearly brought out the cases of workmen to whom relief was due under demand No. 11 (a).
Having thus dealt with the said four categories by name, the Tribunal thought it necessary, and we think, rightly, to add the words "and others", because if there were other workmen who were till 1948 required to work on Sundays and in respect of whom a weekly day off was introduced thereafter without any corresponding increase in their wages, there was no reason why they should not have been given the benefit which was given to the workmen of the four categories specifically discussed.
it is significant that having thus comprehensively described the workmen who were entitled to the said benefit, the Tribunal has added that in respect of the remaining workmen, demand No. 11 (a) was rejected.
Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference.
to demand No. 11 (a) and the use of the words "and others" is not only not outside the terms of reference, but is quite appropriate and justified.
718 That being so, it is difficult to sustain the plea that the impugned direction was without jurisdiction.
Mr. Kolah no doubt relied on the fact that the present respondents never thought that they were entiteld to the benefit conferred by the impugned direction and in support of this plea, he referred us to the fact that in ' 1952, a demand was made on their behalf for a similar benefit.
If the respondents had felt that the benefit conferred by the impugned direction was available to them, it is very unlikely says Mr. Kolah, that they would have made the same demand in 1952 on the basis that it had not been granted to them by the earlier award.
It does appear that this demand was made on behalf of the respondents and the Government of Bombay took the view that the said demand had already been considered by the Tribunal and that it was too late to reopen it in regard to other categories of employees; that is why the Government refused to make a reference.
In our opinion, this fact cannot materially assist Mr. Kolah, because on a fair and reasonable construction of the material direction in the award, we are satisfied that the said clause applies to all workers of the appellant who satisfy the test prescribed by it.
If the respondents did not understand the true scope and effect of the said clause, that cannot affect the construction of the clause.
Therefore, we do not think that the failure of the respondents to take advantage of the said clause soon after the earlier award was pronounced can have any bearing on the construction of the clause.
Then, Mr. Kolah has suggested that on the merits the respondents are not entitled to make the claim, because, it is not shown by them that they were required to work on all Sundays in the relevant years.
He argues that the test prescribed by the direction is that the benefit should be available to 719 workmen who were, till 1948, required to work on Sundays and that, it is suggested, must mean "who were required to work on all Sundays in the year".
This argument has been examined by the Labour Court and it has found that the respondents were required to work on Sundays before 1948, though they might not have attended on all Sundays.
In support of this finding, the Labour Court has referred to Ext.
32 and has drawn the inference from the said document that the workers in the Syphon Department were required to work on all Sundays before September, 1948, and it has added that the fact that they did not work on some Sundays may be attributed to some casual circumstances, such as the workers having voluntarily remained absent, or there not being sufficient work for all, some might have been sent home.
Mr. Kolah has invited our attention to the chart (Ext. 32) and has shown that in some cases, the employees were not required to work even half the number of Sundays during that year.
In our opinion, this argument proceeds on a misconstruction of the relevant clause in the award.
The said clause does not provide that before getting the benefit in question, the workers must show that they actually worked on all Sundays in the year.
The test which has to be satisfied by the workers is that they could have been required to work on Sundays in that year.
In other words, what the Tribunal decided was that if there were workers employed by the appellant whom the appellant could require to work on Sundays during the relevant year, they would be entitled to the benefit.
In other words, the test is : did the terms and conditions of service impose an obligation on the workers to attend duties on Sundays if called upon to do so? That is very different from saying that the benefit would be available only if the workers in question worked on all Sundays.
Therefore, we do not think there is any substance in the argument that since the respondents had not been actually required to work on all Sundays in the 720 relevant year, they were not entitled to the benefit of the relevant clause in the award.
That leaves one more question to be considered.
Mr. Kolah has strenuously argued that the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced.
It is true that the earlier award was pronounced on May 11, 1950 and the present applications were made in 1958.
In support of his argument that the delay made by the respondents should be taken into account, Mr. Kolah has referred to the fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees.
In the State of Maharashtra, by local modification, this period is prescribed as one year.
The argument is that the present claim made by the respondents under section 33 C(2) is a claim for wages within the meaning of the Payment of Wages Act.
If the respondents had made such a claim before the authority under the said Act, they could not have got relief for more than a year.
It would be anomalous, says Mr. Kolah.
that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8.
years under section 33C (2).
In this connection, Mr. Kolah also contends that by virtue of section 22 of the Payment of wages Act, a claim for wages cannot be made by an industrial employee in a civil court after a lapse of one year, because though the period for such a., suit may be 3 years under article 102, a civil suit is barred by section 22.
The jurisdiction conferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year.
Prima facie, there is some force in this argument.
It does appear to be somewhat anomalous that a claim which would be rejected as barred by 721 time if made under the Payment of Wages Act., should be entertained under section 33C (2) of the Act; but does this apparent anomaly justify the introduction of considerations of limitation in proceedings under section 33C (2)? Mr. Kolah suggests that it would be open to this Court to treat leaches on the part of the employees as a relevant factor even in dealing with case under section 33C (2) and he has relied one fact that this Court has on several occasions discouraged belated claims in the matter of bonus.
in appreciating the validity of this I argument, we do not propose to consider whether the jurisdiction conferred on the authority under the Payment of Wages Act is exclusive in the sense that a claim for wages cannot be made by an industrial employee in a civil court within 3 years as permitted by article 102; that is a question which may have to be decided on the merits when it directly arises.
For the purpose of the present appeal, the only point which we have to consider is : does the fact that for recovery of wages limitation has been prescribed by the payment of Wages Act.
Justify the introduction of considerations of limitation in regard to proceedings taken under section 33C (2) of the Act ? In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting section 33C (2).
The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission.
In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under section 33C (2).
It may have been thought that the employees who are entitled to take the benefit of section 330 (2) may not always be conscious of their rights and it would not be right to put the restriction 722 of limitation in respect of claims which they may have to make under the said provision.
Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course, it is kept alive by taking steps in aid of execution from time to time as required by article 182 of the Limitation Act, so that the test of one year or six months ' limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims.
It seems to us that where the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on grounds of fairness or justice.
The words of section 33C (2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation.
Mr. Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels thatch play and justice require that some limitations be prescribed, it 'may proceed to do so.
In the absence of any provision,however, the Labour Court cannot import any such consideration in dealing with the applications made under section 33C (2).
Mr. Kolah then attempted to suggest that article 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years ' limitation should, therefore, be held to govern them.
Article 181 provides 3 years ' limitation for applications for which no period of limitation is provided elsewhere in Schedule 1, or by section 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues.
In our opion, this argument is one of desperation.
It is well settled 723 that article 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under section 33C (2) of the Act would not be justified.
As early as 1880, the Bombay High Court had held in Rai Manekbai vs Manekji Kavasji (1), that article 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta vs Official Liquidator8, Dehra Dun Mussoorie Electric Tramway Company Ltd. (2) An attempt was no doubt made in the case of Sha Vulchand & Co. Ltd. vs Jawahar Mills Ltd. (3), to suggest that the amendment of articles 158 and 178 ipso facto altered the meaning which had been attached to the words in article 181 by judicial decisions, but this attempt failed, because this Court held " 'that the long catenate of decisions under article 181 may well be said to have, as it were, added the words "under the Code" in the first column of that Article.
" Therefore it is not possible to accede to the argument that the limitation prescribed by article 181 can be invoked in dealing with applications under section 33C (2) of the Act.
It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under section 33C (2).
A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision.
In such a case,, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government nay refuse to make reference in that behalf.
But these considerations would (1)[1880] I.L R. (2) [1932] L.R. 60 I.A. 13, 20.
(3) ; , 371 , 724 be irrelevant when claims are made under section 33C (2), where these claims are, as in the present case, based on an award and are intended 'merely to execute the award.
In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice.
It can be introduced, if at all, by the legislature.
Therefore, we think, that the Labour Court was right in rejecting the appellant 's contention that since the present claim was belated, it should not be awarded.
In the result, the appeals fail and are dismissed with costs.
Appeals dismissed.
| Petitions were filed by sixteen respondents under section 33C(2) of the , claiming certain benefits under an award made by an Industrial Tribunal.
The prayer was to compute the benefits in terms of money and direct the appellant to pay the same to them.
Many objections were raised by the appellant but these were rejected by the Labour Court which accepted the claim of the respondents and directed the appellant to pay to the respondents the respective amounts specified against their names in the award.
The appellant came to this Court by special leave.
The contentions raised by the appellant before this Court were that the award, on which the claim was based, was without jurisdiction and hence the Labour Court should have refused to implement it; that in order to get benefit, the workers must show that they actually worked on all Sundays in the year before September, 1948; and that as the claims of the respondents were belated, those should not have been awarded.
Held that the Labour Court would have been justified In refusing to implement the award if it was satisfied that the 710 direction in the award on which the respondents ' claim was based, was without jurisdiction, but as that was not actually so, the impugned direction was according to law.
The applications made by respondents were competent and the Labour Court had jurisdiction to deal with the question as to the computation of the benefit conferred on the respon dents in terms of money.
The proceedings contemplated by section 330 (2) were, in many cases, analogous to execution proceed ings and the Labour Court which was called upon to compute in terms of money the benefit claimed by an industrial employee, was in the position of an executing court and was competent to interpret the award on which the claim was based and also consider the plea that the award, sought to be enforced, was a nullity.
Held also, that there was no substance in the argument that since the respondents had not been actually required to work on all Sundays in the relevant year, they were not entitled to the benefit given in the award.
The test which had to be satisfied by the workers was that they could have been required to work on Sundays in that year and not that they actually so worked.
Held also, that the legislature has not made any provision for limitation for applications under section 33C (2) and it was not open to the Courts to introduce any such limitation on grounds of fairness or justice, The words of section 33 C (2) were plain and unambiguous and it was the duty of the Labour Court to give effect to the said provisions without any considerations of limitation.
The employees who are entitled to take the benefit of section 33C (2) may not always be conscious of their right and it would not be right to put the restriction of limitation in respect of claims which they may have to make under the said provision.
There was no justification for applying the provisions of the Payment of Wages Act and article 181 of the Limitation Act to the proceeding under section 33C (2).
Claims like bonus arc distinguishable from claims made under section 33C (2).
A claim for bonus is entertained on grounds of social justice and is not based on any statutory provision and in such a case, it is open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim or Government may refuse to make the reference in that , behalf.
711 However, those considerations are irrelevant when claims we made under section 330 (2).
In such cases limitation cannot be introduced by industrial adjudication on academic grounds of social justice.
Central Bank of India Ltd. vs P. section Rajagopalan, [1964] Vol.
3 S.C.R. 140; Rai Manekbai vs Manekji Kavasji, (1883) 7 Bom.
213; Hansral Gupta vs Official Liquidators, Dehra Dun Musoorie Electric Tramway Co. Ltd., (1932) L.R. 60 I.A. 13 and Sha Mulchand & Co. Ltd. vs Jawahar Millar Ltd. ; , referred to.
|
ivil Appeal No. 258 of 1982.
From the Judgment and Order dated 3.11.1981 of the Bombay High Court in Spl.
Civil Appln.
No. 2598 of 1978.
S.B. Bhasme and V.N. Ganpule for the Appellants.
PG NO 298 Dr. Y.S. Chitale.
R.F. Nariman, B.H. Antia and Mrs. A.K. Verma for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by the tenant.
It arises out of an order of eviction passed by the Civil Judge, Thane and confirmed by the learned Assistant Judge of Thane on or about 24th July, 1976.
The High Court of Bombay on or about 3rd November, 1981 dismissed an application under Article 227 of the Constitution challenging the said decision.
Civil Suit No. 176 of 1974 was filed by the respondent landlord against the appellants for possession of the building called Jamshed Villa at Thane.
The ground floor of the building consists of one hall, tow bed rooms, two side rooms and a kitchen.
The said premises was let out to one Shri S.H. Kulkarni the deceased father of the appellants some years ago by the respondent on the rent of Rs. 50 per month.
The former owner, it is stated, terminated the tenancy of the appellants on 20th June, 1976, and the deceased Shri Kulkarni continued to occupy it as a statutory tenant.
On the sale of the suit property the tenancy of Shri S.H. Kulkarni was duty attorned to the present plaintiff.
Shri S.H. Kulkarni then expired.
On 11th January, 1973 the respondents served the notice upon the appellants requiring them to vacate the suit premises on various grounds.
By the said notice the respondent also called upon the appellants to pay the arrears of rent for the period from 1st September, 1971 to 31st December, 1972 at the rate of Rs. 50 per month.
The total arrears came to Rs. 800.
Indubitably, the amount claimed in this notice was not paid by the appellants to the respondent.
The appellants replied to the notice.
In that reply, several contentions were urged.
It may be mentioned that the suit was filed on various grounds, namely, that the appellants have created a nuisance and they are irregular in paying the rent and further it was stated that the respondent required the suit premises reasonably and bona fide for his personal use and occupation.
The learned trial Judge after framing the issues, on all issues held in favour of the tenant except the issue of the arrears of rent.
The learned trial Judge held that the appellants had failed and neglected to pay the arrears of rent within the statutory period in spite of the notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act ').
The trial court, however, on the question whether the appellants have raised a substantial plea that the rent is excessive, did not go into this aspect in view of the decision of this Court in Harbanslal Jagmohandas & Anr.
vs Prabhudas Shivlal, ; PG NO 299 Accordingly.
the trial Judge decreed the suit on the ground that the are in arrears of rent.
There was an appeal from the said.
decision of the trial Judge to the learned Assistant Judge, Thane.
The learned Assistant Judge affirmed the order of the learned trial Judge but reiterated that the tenant could claim protection from the operation of Section l2(3)(a) of the Act, only if the tenant had made an application within one month from the service of the notice under Section I,?(i)) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent.
It is common ground that the appellants in this case did not make any application within one month from the service of the notice under Section 12(2) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent.
The learned Assistant Judge, therefore, confirmed the order for eviction.
The appellants moved the Bombay High Court.
The Bombay High Court by the judgment under appeal on 3rd November,1981 dismissed that application holding that neglect on the part of the appellants in making payment as mentioned in Section I2(3)(a) of the Act has to be decided on the facts of each case.
The High Court reiterated that after considering all the facts and circumstances both the Courts below had rightly come to the conclusion that there was on the part of the appellants within the meaning of Section l2(3)(a) of the Act, meriting a decree for eviction.
Shri Bhasme appearing for the appellants concluded before us the High Court was wrong and did not properly consider the conduct of the respondent in not giving receipts.
Before we consider this contention, it may be appropriate to refer to the provisions of Section 12 of the Act.
It provides that the landlord shall not be entitled to the recovery of possession of any premises a, long as the tenant days, or is ready and willing to pay, the amount of the standard rent permitted increases, it any.
and observes and performs the other of the tenancy, in so far as they are consistent with the of the Act.
Sub section (2) of Section 12 of also stipulate that no suit for recovery of possession shall be instituted by a landlord a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted has been served upon the tenant in the manner provided in 106 of the Transfer or Property Act, 1882.
Sub section (3)(a) and (b) of Section 12 of the Act are important and set our here under: "(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or PG NO 300 permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court shall pass u decree for eviction in any such suit for recovery of ' possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of Hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regular l4 ' such rent and permitted increases till the suit is finally decided and also pay costs of the suit as directed by the Court. " .
(Emphasis supplied) This question.
as to how a payment to be made under Section 12(3)(a) and (b), had been considered by this Court in Harbanslal Jagmohandas and Anr.(supra).
There, both the appeal raised a common question as to whether a tenant in order to resist passing of a decree of eviction under the provisions contained in Section 12 (3)(a)of the Act must dispute the standard rent within one month from the date of receipt of the notice from the landlord terminating the tenancy on the ground of arrears of rent or whether a tenant can raise such .
dispute in the written statement.
There was difference of opinion between Bombay and Gujarat High Courts.
The Gujarat High Court took,the view that the dispute as to Standard rent had to be raised within one month from the service of the notice on the tenant.
The Bombay High Court had taken a contrary view and held that the tenant could raise a dispute as to standard rent in his written statement in answer to the suit and in such a case the provisions of Section 12 (3)(a) of the act would apply.
In the Gujarat case, the High Court found that the tenant did not raise the dispute within one month of the service of the notice terminating the tenancy.
inter alia, on the ground of arrears of rent for more than 6 months.
In the Bombay appeal the dispute was not raised within one month from the date of the receipt of the notice.
It was, however.
raised in the written statement.
Under Section 11 of the the Court had power to determine standard rent when there was a dispute between landlord and tenant regarding the amount of standard rent.
It was held by this Court that under Section 12 of the Act the landlord is not untitled to recover possession of the premises so long as the tenant pays or is PG NO 301 ready and willing to pay the amount of standard rent and permitted increases.
Section 12(2) provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent until the expiration of one month next after notice in writing of the payment of the standard rent.
This Court held that the view of the Bombay High Court was erroneous and the view of the (Gujarat High Court was correct.
Sub section 3(a) of section 12 categorically provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.
In the instant case, as has been found by the Court.
the rent is payable month by month.
There is no dispute regarding the amount of standard rent or permitted increases.
Such rent or increase are in arrears for a period of six months or more.
The tenant had neglected to make payment until the expiration of the period of one month after notice referred to in sub section (2).
The Court was bound to pass a decree for eviction in any such suit for recovery or possession In terms of the decision of this Court in Harbanslal Jagmohandas supra), the eviction order had to follow by operation of law.
Shri Bhasme, however, submitted before us that here there was no question of negligence in proper light because he drew our attention to several letters whereby the tenant to pay then rent of the landlord. 'The tenant 's case was that the landlord Was not granting receipts.
The landlord was not demanding ``rent but was demanding. ' ``compensation" for use and occupation.
He drew our attention to several decision and urged that the tenant was willing to pay the rent provided receipts were granted to him.
Shri Bhasme urged that the landlord did not comply with the request to give written receipts.
He was punishable with fine which might extend to one hundred rupee under sub section (2) of Section 26 of the Act.
Shri Bhasme submitted that in this case.
the landlord was mala fide and by his mala fide act he was preventing the tenant from performing his obligation.
He further urged that this was not a case of bona fide need.
The landlord was.
affluent and the tenant was a poor.
There was a great shortage of accommodation.
In view of the decision of this Court in Harbanslal jagmohandas and Anr.
V. Prabhudas Shivlal (supra) and the provisions.
of Section l2(3 (a) and (b) and in the Court below were right.
circumstances of the case, we must hold that the Courts below were right.
PG NO 302 Our attention was drawn to a decision of this Court in Mohan Laxman Hede vs Noormohamed Adam Shaikh, ; , where this Court reiterated that to take advantage of protection from eviction under Section l2(3)(b) of the Act, it cannot be said that exact or mathematical punctuality was required in the deposit of rent by a tenant.
The tenant had been depositing the rents in that case in Court for two or three months at a time.
There the Court was concerned with the expression "regularly" as contemplated in clause (b) of sub section (3) of Section 12 of the Act.
It was not concerned with clause (a) of sub section (3) of Section 12 of the Act.
It was not concerned with the question of total failure or neglect on the part of the tenant to pay the rent.
It may be instructive in this connection to note that in sub section (3)(a) of Sec. 12 of the Act, the expression "Court shall pass a decree" was substituted for the words "Court may pass a decree" by an amendment passed in 1963, making it mandatory to pass the decree.
When the Legislature had made its intention clear in specific terms, there was no scope for Shri Bhasme 's appeal to `the spirit of the law ' and not to the strict letter of the law.
In the aforesaid view of the matter, this appeal fails and is accordingly dismissed.
But in the facts and circumstances of the case.
the parties will pay and bear their own costs.
Furthermore, in order to cause less hardship in the situation, we direct that the appellant will have six months time to vacate the premises in question, provided they file an undertaking within six weeks from this date to this Court that they will deliver vacant possession of the premises to the landlord after the expiry of six months from this date and to go on paving rent compensation until possession is given and not to induct or let anybody in the premises in question.
in the usual terms.
P.S.S Appeal dismissed.
| The land in question was granted to one A by the Government of Kashmir and as per the practice prevailing there, he was shown as Wasidar in respect of the said land.
On his death, his son inherited the leasehold rights.
On the death of the son, his widow inherited the same.
The appellants are the heirs and legal representatives of the widow.
A 's son, during his lifetime, had granted a sub lease of the said land to the Respondent 's father.
The widow of A 's son instituted a suit for recovery of possession of the said land on the grounds that there was unlawful sub letting by the sub lessee, the land was required for occupation by her and her family, and that the period of sub lease had expired.
The Respondent contended that the sub lease was void ab initio.
The Sub Judge held that the sub lease was valid and the grounds of bona fide requirement of the appellants ' mother as well as unlawful sub letting by the sub lessee had been established.
On these findings the suit was decreed.
on appeal, the Additional District Judge upheld the decision.
In the second appeal before the High Court, it was contended that the transfer made was of a mere interest in the lease hold and did not amount to a transfer of the land leased, as contemplated under Rule 35 of the Wasidar Rules.
Rejecting the contention, but without considering as to what would be the effect of the sub lease being void, the High Court came to the conclusion that in view of the sub lease being void, the suit filed by the appellant must be dismissed.
This appeal, by special leave, is against the aforesaid decision.
on behalf of the appellants, the contentions urged in the Courts below, were reiterated before this Court.
The Respondent relied on Section 12 A of the Jammu Kashmir Land Grants Act, 1960 as amended in 1969 and contended that the sub lease was admittedly 557 granted without the permission of the Government and so the lease granted by the Government had come to an end: the title of the appellants to the said land had extinguished and they were not entitled to sue for recovery of possession of the said land.
Allowing the appeal, ^ HELD: 1.
Even assuming that the sub lease granted was void, the result would be that the Respondent his father would be persons without any legal interest in the said land.
The appellants being the lessees of the said land were suing on their own title and not relying on the sub lease hence they were entitled to evict the Respondent who had no title or interest in the said l .
If a view is taken that the sub lease was valid, in that event, as held by both the Courts below, as grounds for eviction set out in Section 11 of the Jammu & Kashmir Houses and Shops Rent Control Act have been made out, the Respondent ceased to be entitled to the protection of the said Act and was liable to be evicted as the term of his sub lease had expired.
[559E G] 2.
It was not contended by the Respondent in any of the Courts below that the title of the Appellants and his predecessors in title to the said land under the lease granted by the Govermnent had come to an end.
Had the plea been taken earlier, it is possible that the Appellants might have pleaded facts to show that their lease had not come to an end or that it had been renewed after the sub lease was granted.
Hence, allowing such a plea at this stage might cause prejudice to the Appellants.
[560D E] 3.
As regards the sub letting by the Respondent and his father and the bona fide requirement of appellants ' mother, these are both essentially issues of fact and have been decided in favour of the Appellants ' mother and their predecessors in title.
Those findings do not appear to have been seriously challenged before the High Court at all and hence there is no reason to go into the question as to whether those findings are correct, in this appeal.
[561B]
|
Criminal Appeal No. 109 of 1987.
From the Judgment and Order dated 12.6.86 of the Kerala High Court in Crl.
M.C. No. 511/1982 and 212/1985.
P.S. Poti, P.N. Puri and E.M.S. Anam for the Appellant.
Baby Krishnan for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This Appeal by Special Leave is by a Gazetted Police Officer to seek expunction of certain ad verse remarks passed against him by the High Court of Kerala in an order passed with reference to two Criminal Miscella neous Petitions filed by Respondents 2 and 3 herein without issuing any notice to him and without hearing him.
The somewhat unusual circumstances in which the appel lant has been made the victim of strictures by the High Court may now be looked into.
One Chandrasekaran Pillai residing within the limits of Karunagapally Police Station was charged under Section 302 I.P.C. for having committed the murder of his wife Komalavalli by first beating her and kicking her and then hanging her in order to make it appear that it was a case of suicide.
The accused 's son aged about 12 years and a neighbour claimed to have witnessed the beating as well as the accused dragging the deceased to the western side of the house.
A little later the son made bold to go into the house and found his mother having with a noose round her neck.
He raised alarm and the neighbours including his maternal uncle came to the house and cut the rope and rendered first aid unsuccessfully because Komalav alli had already died.
A report was given at Karunagapally Police Station and a case of "suspicious death" was registered and investigation was done by Shri T.P. Rajagopalan, Inspector of Police (Respondent No. 2) who was examined as P.W. 16 in the Ses sions Trial against the accused.
As the brother of deceased Komalavalli was not satisfied with the manner of investiga tion of the local police he filed a petition before the Deputy Inspector General Southern range.
Under orders of the Deputy Inspector General the investigation was entrusted to the Crime Detach 505 ment in which the appellant was serving as a Deputy Supdt.
of Police.
The appellant took charge of the case and his investigation revealed that Komalavalli 's death was due to homicide and not suicide.
The appellant was incharge of the investigation of the case only from.
26.11.
1980 to 5.1.
1981 and thereafter the further investigation was done by another police officer of the Crime Detachment who was examined as P.W. 18 in the trial.
The charge sheet was eventually filed by yet another officer viz. P.W. 19 an Inspector of Police.
The defence of the accused was that his wife Komalavalli had committed suicide and that he had not murdered her.
In support of his defence the accused placed reliance upon the first Investigating Officer viz. P.W. 16 carrying out a cellophone tape test on the palms of Komalavalli and sending the cellophone tapes to the Forensic Science Laboratory to find out whether any fibres of coir rope were found in the cellophone tape and if so whether the fibres had come out of the coir rope used for the hanging.
The report of the Foren sic Science Laboratory was that the cellophone tape con tained fibres of coir which were similar to the coir rope used for the hanging.
It was, therefore, contended that Komalavalli 's death was due to suicide as otherwise fibres from the coir rope used for hanging would not have been found in the palms of her hands.
To prove the despatch of the cellophone tapes to the Forensic Science Laboratory and the receipt of the report from the said Laboratory and its despatch to the Crime Detachment a Head Constable of Karuna gapally Police Station by name E. Koyakunju (Respondent No. 1) was examined as Defence Witness No. 2.
The Sessions Judge entertained serious doubts about P.W. 16 carrying out the cellophone tape test to lift any fibres of coir sticking to the palms of Komalavalli and sending the tapes to the Forensic Science Laboratory and the bona fides of the exercise.
We shall set out later the numerous suspi cious features noticed by the Sessions Judge regarding the conduct of P.W. 16 and DW 2 with reference to the carrying out of the cellophone tape test and the despatch of the tapes to the Forensic Science Laboratory and the entrustment of the report to the Crime Detachment.
For the present we will continue with the narrative so as to make known the circumstances which have led to the filing of this Appeal.
After evaluating the prosecution evidence the Sessions Judge held that the prosecution had failed to prove the case against the accused beyond reasonable doubt and, therefore, gave him the benefit 506 of doubt and acquitted him of the charge under Section 302 I.P.C.
It is significant to note that the acquittal was not rendered in acceptance of the defence case that Komalavalli had committed suicide but because the Court felt that it would not be safe to act upon the evidence of P.W. 2, the son and P.W. 3, the neighbour and convict the accused for the offence of murder.
In the course of his judgment the Sessions Judge made severe comments against P.W. 16, the Inspector of Police, D.W. 2, Head Constable and another Policeman P.C. 2599 and observed as follows: "Therefore in my view this is a fit case where appropriate action has to be taken against P.W. 16, D.W. 2 and P.C. 2599 who wrote Ext.
D 14 for the reasons stated earlier.
Otherwise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment.
When one wing of the police establishment tries to investigate properly and to book the culprit, P.W. 16, D.W. 2 and P.C. 2599 were trying to neutralise all the work that has been done by the Crime Detachment and to help the accused to get an acquittal.
This is a serious situation which the higher authorities in the police depart ment have to take serious notice of and curb the tendency even in the beginning.
" Aggrieved by the strictures passed by the Sessions Judge, the Inspector (P.W. 16) and the Head Constable (D.W. 2) filed Criminal Misc.
Petitions before the High Court of Kerala for expunging the adverse remarks made against them.
A learned single judge of the High Court, without making any examination of the conduct of the petitioners before him and without considering whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant in the dock for having failed to place before the Court the scientific materials which P.W. 16 had obtained in the course of investigation to find out whether Komalavalli 's death was due to suicide or homicide.
The learned judge had taken it for granted that P.W. 16 and D.W. 2 had acted in a blemishless manner and that the report of the Forensic Science Laboratory had been obtained through bona fide investigative process and it was the appellant who had schemingly kept back the crucial records from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncertain terms.
The relevant portions in the judgment where the appellant 507 who was examined as P.W. 17 in the Sessions Trial has been criticised are as under: "(para 6.) P.W. 17, Dy.
S.P. who conducted the investigation kept the above facts concealed purposely.
If the report sent by the Assistant Director of forensic Science Laboratory was made available to the court it would have gone a long way to establish innocence of the accused.
So to foist a false case of murder on the account he did not send the report of the Assistant Director of Forensic Science Labora tory to the Court.
He pleaded complete igno rance of the above examination when examined before court.
(para 8.) The part played by P.W. 17 is not beyond suspicion.
He had purposely concealed materials which were favourable to the ac cused.
It would appear that this officer was averse to scientific methods being made use of in investigation of crimes.
His attempt was only to see that the accused is convicted in this case.
This should not have been the approach of a senior officer like P.W. 17, who was investigating a very serious crime.
The life and liberty of innocent persons should not be placed at the mercy of such unscrupu lous officers.
It will be proper for the higher officers in the department to look into this matter and take proper corrective meas ures for future guidance.
" Stung by the remarks made against him without even heating, the appellant has preferred this Appeal to seek expunction of the remarks.
Now let us have a look at the distressing and suspicious features noticed by the Sessions Judge in the conduct of P.W. 16 and D .W. 2 in the "cellophone tape test" carried out by them and in obtaining the report of the Forensic Science Laboratory and the despatch of the opinion to the Crime Detachment.
The relevant portions extracted from the Judgment are as follows: (i) "The inquest Report prepared by this witness (P.W. 16) does not show that he had seized any cellophone tape or coir or that they were sent to the Forensic Science Labora tory": (ii) "There are no documents to show that the tape and coir 508 were taken into custody for the purpose of sending them to the Forensic Science Laborato ry in the case diary": (iii) "Normally any material to be examined by the Forensic Science Laboratory will be sent only through the court.
Admittedly the cellophone tape and the coir were not sent through court.
On the other hand it is stated that they were sent to the laboratory through a constable.
But the case diary does not show that any constable was sent to the Forensic Science Laboratory for handing over these articles": (iv) "P.W. 16 did not prepare, any mahazar for seizure of any cellophone tape and inquest report also does not state anything about any tape said to have been affixed by him on the palm or the dead body and taken for the pur pose of examination at the laboratory"; (v) "D.W. 1 Assistant Director of the Forensic Science Laboratory, Trivandrum, examined by the defence to prove his report Exhibit D. 10 regarding the presence of small bits of coconut fibres beating similarity to the coir rope that was also sent, had stated in cross examination that even if the tape was affixed to the coir (instead of the palms) and then sent, it will contain the fibres similar to the one found on the coir": (vi) "The investigation was taken over by the Crime Detachment on 26.
The cellophone tapes and the coir pieces are said to have been sent by P.W. 16 to the laboratory on 1.12.80 when he had ceased to be the Inves tigating Officer;" (vii) "Even if he had taken any cellophone tape and coir pieces at the time of inquest or thereafter and wanted them to be examined by the laboratory the proper course for him would have been to send them to the Dy.
S.P. who was investigating the case on 1.12.
1980;" (viii) D .W. 2 Head Constable, summoned and examined by the defence to prove the sending of the cellophone tapes and coir to the labo ratory and the report received from the labo ratory had stated "that there is no document in the 509 Policy Station to prove that cellophone tape or coir piece were sent from Karunagappally Police Station to the Forensic Science Labora tory, Trivandrum." (ix) "He further stated that the report re ceived from the laboratory was sent to the Crime Detachment on 7.1.
1981 but claimed that there is nothing to show that it was received by any officer of the Crime Detachment Office.
The despatch register Ext.
D13 only shows that a cover was handed over to a constable for delivery to the Crime Detachment Office.
But there is no acknowledgement to show that the constable had actually handed over the same to the office of the Crime Detachment at Quilon.
" (x) "D.W. 2 produced a notebook Ext.
D. 14 said to have been maintained by the constable to whom this cover was handed over for deliv ery at the office of the Crime Detachment.
In this the curious aspect is that the entry regarding this handing over is written in a sheet of paper which is affixed in the note book as an extra sheet .
This entry Ext.
D. 14 has been purposely manufactured for the purpose of this case and I have no doubt that it has been done at the instance of D.W. 2 the Head Constable and P.C. 2599 who wrote Ext.
D. 14.
Therefore the constable who wrote Ext.
D. 14 and DW 2 are equally responsible for this fraud." (xi) "The extent to which DW2 would go to help the accused is evident from the fact that he voluntarily producted Ext.
" (xii) "Ext.
D.17 is a letter sent from the Forensic Science Laboratory to the S.I. on 15.11.1980.
" This letter states that the sealed packet said to contain the MOs involved in Crime 220 of 1980 of Karunagapally Police Station were being returned unopened for want of forwarding note and certificate and hence the sealed packet may be resubmitted with proper forwarding note and certificate.
At the bottom of this letter in vernacular it is written "cellophone tape.
" Except this vernac ular writing there is nothing to show that the MOs referred to in Ext.
D. 17 were cellophone tape and coir piece .
As the packet sent from the Karunagapally Police Station was not opened, by the Forensic Science 510 Laboratory, the writing in vernacular at the bottom of Ext.
D. 17 could not have been written by anybody from the laboratory.
It is a subsequent interpollation probably at the instance of D.W. 2.
This was also interferring with official documents and tampering with it by D.W. 2 or somebody from the Police Station at Karunagapally.
It was with reference to all these features the Sessions Judge made his adverse remarks against P.W. 16, D.W. 2 and P.C. 2599 and observed that the conduct of the concerned official was highly open to suspicion, that as such a full fledged enquiry should be held against them and that "other wise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment.
" Coming now to the merits of this Appeal when P.W. 16 and D.W. 2 moved the High Court for expunging the adverse re marks against them the scope of the enquiry was confined to the bonafides of their action in the investigation proceed ing and whether the Sessions Judge was justified in drawing adverse inferences against them on the basis of suspicious features catalogued by him.
The High Court was not dealing with an appeal against the acquittal of the accused and there was no need or occasion for the High Court to go into the conduct of the appellant.
The enquiry in the Criminal Misc.
Petitions was only touching upon the conduct of P.W. 16 and D.W. 2 and not the conduct of the appellant.
Further more one material fact which the High Court had completely over looked is that the appellant ceased to be in charge of the case on 5.1.1981.
Thereafter the investigation of the case was taken charge of by P.W. 18 and still later by P.W. 19.
Even according to D.W. 2 the report from the Forensic Science Laboratory was sent to the Crime Detachment only on 7.1.1981 whereas the appellant ceased to be incharge of the case on 5.1.
1981 itself.
It, therefore, passes one 's com prehension as to how the appellant can be accused of having wilfully suppressed material documents from the notice of the court in order to secure a conviction unjustly against the accused in a murder case.
The High Court, it is surpris ing to find has not applied its mind to the series of suspi cious features noticed by the Sessions Judge to draw an adverse inference against P.W. 16 and D.W. 2 in conducting the so called cellophone tape test and sending the tape to the Forensic Science Laboratory for its report.
The learned judge has taken it for granted that P.W. 16 had actually carried out a cellophone tape test, that in carrying out such a test he was wedded to scientific methods of investi gation and that he and DW 511 2 had acted fairly and squarely in trying to find out the real cause of death of Komalavalli and that it was the appellant who had an aversion to the use of scientific methods in investigation of crimes and that the appellant had purposely concealed materials which were favourable to the accused in order to secure a conviction at any cost.
The learned judge had failed to see that as a matter of fact the accused was not kept in the dark regarding the cellophone tape test that was deemed to have been done but on the other hand he had full information of the test and its result, and it was on account of that he was able to summon police officials to figure as defence witnesses and police records as defence exhibits.
We are, therefore, clearly of opinion that the High Court had completely misdirected itself in its consideration of the petitions filed by respondents 2 and 3 to seek expunction of the adverse remarks made against them by the Sessions Judge.
We have also to point out a grievous procedural error committed by the High Court.
Even assuming for argument 's sake that for expunging the remarks against respondents 2 and 3 the conduct of the appellant required scrutiny and merited adverse comment, the principles of natural justice required the High Court to have issued notice to the appel lant and heard him before passing adverse remarks against him if it was considered necessary.
By its failure the High Court has failed to render elementary justice to the appel lant.
Yet another serious infirmity contained in the impugned order is that the High Court has failed to bear in mind the well settled principles of law laid down by this Court in more than one case that should govern the Courts before disparaging remarks are made against persons or authorities whose conduct comes into consideration before Courts of law in cases arising before them for decision.
In State of U.P. vs Mohd. Naim; , ,374equal to AIR 1964 S.C. 702 it was held as follows: "If there is one principle of cardinal impor tance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their func tions freely and fearlessly and without undue interference by anybody, even by this Court.
At the same time it is equally necessary that in expressing their opinions Judges and Magis trates must be guided by considerations of justice, fair play and restraint.
It is not infrequent that sweeping generalisations defeat the very purpose for which they are 512 made.
It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose con duct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
It has also been recognised that judicial pronounce ments must be judicial in nature, and should not normally depart from sobriety, moderation and reserve".
This ratio has been followed in R.K. Lakshmannan vs A.K. Srinivasan; , and Niranjan Patnaik vs Sashibhushan Kar & Anr., ; (to which one of us was a party).
Judged in the light of the above tests, it may be seen that none of the tests is satis fied in this case.
It is indeed regrettable that the High Court should have lightly passed adverse remarks of a very serious nature affecting the character and professional competence and integrity of the appellant in purported desire to render justice to respondents 2 and 3 in the petition filed by them for expunction of adverse remarks made against them.
The appeal is, therefore, allowed and the adverse re marks against the appellant in the order of the High Court which have been extracted above will stand expunged from the order under appeal.
A.P.J. Appeal allowed.
| The appeal of the State against the order of acquittal of the appellants of an offence under section 7(1) read with sections 16 and 17 of the , punishable with a sentence of imprisonment exceeding two years, was heard and decided by a Single Judge, though under Rule 1 read with Rule 2 H (e) of the Bombay High Court Appellate Side Rules 1960 such an appeal was required to be heard by a Division Bench.
The Single Judge allowed the appeal, held the appellants guilty and set aside the order of acquittal.
Allowing the appeal of the accused appellants, on the question "whether the decision of a Single Judge in a matter required to be decided by a Division Bench was a nullity," ^ HELD: 1.1 When a matter required to be decided by a Division Bench of the High Court is decided by a Single Judge, the judgment would be a nullity, the matter having been heard by a Court which had no competence to hear the matter, it being a matter of total lack of jurisdiction.
[1006C D] 1.2 In the instant case, the accused appellants were entitled to be heard under Rule 1 read with Rule 2 II(e) of the Bombay High Court Appellate Side Rules 1960, by at least two Judges constituting a Division Bench and had a right to claim a verdict as regards their guilt or innocence at the hands of two Judges.
This right cannot be taken away except by amending the rules.
So long as, the rules are in operation it 1005 would be arbitrary and discriminatory to deny them this right regardless of whether it is done by reason of negligence or otherwise.
Negligence can neither be invoked as an alibi nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules.
What can be done only by at least two Judges cannot be done by one Judge.
[1007A C] 2.
Even a 'right ' decision by a 'wrong ' forum is no decision.
It is non existent in the eye of law.
And hence a nullity.
The impugned judgment is no judgment in the eye of law.
It is set aside and appeal remanded to High Court for hearing by a Division Bench.
[1007C D] State of Madhya Pradesh vs Dewadas & Ors.
, [1982] 3 S.C.R. page 81 relied upon.
|
N: Criminal Appeal No. 325 of 1987.
From the Judgment and Order dated 9.11.1984 of the Punjab and Haryana High Court in Crl.
Appeal No. 132 SB of 1984.
Amita Gupta and R.S. Suri for the Appellant.
R.L. Kohli, R.C. Kohli, G.S. Rao and Ms. C. Markandeya for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Mohinder Kaur set herself and her three children ablaze on the afternoon of 7th June, 1983, at the residence of her husband Iqbal Singh.
The marriage had taken place seven or eight years before the incident.
She had given birth to two daughters and a son.
The deceased was working as a teacher while her husband was a clerk in the Punjab State Electricity Board office at Amritsar.
Soon after the marriage there were disputes between them on the question of dowry.
The demand for extra dowry strained the relations between them and the husband began to ill treat the deceased wife.
It appears that in course of time there was further deterioration in their relationship as a result whereof the deceased had written a letter to the Deputy Superintendent of Police on 12th October, 1977 complaining about the ill treatment meted out to her and apprehending danger to her life and the life of her children.
She therefore, sought police protection.
However, by the time the police came to inquire into the matter there was some understanding as a result of which has had informed the police that no further action be taken for the present but her application may be kept pending.
Then on 31st December, 1977 a divorce deed Exh. D 2 was executed but was not acted upon.
It seems that the situation did not improve and as a result she took the extreme step of putting an end to her life as well as the lives of her three children since she apprehended that their fate would be worse after her death.
However, before putting an end to her life she wrote a letter that very morning which has been reproduced in extenso in paragraph 13 of the judgment of the trial court.
The text of that letter dated 7th June, 1983 794 addressed to the Deputy Commissioner of Police, Public Dealing Branch, Amritsar, shows that her husband was demanding Rs.35,000 to Rs.40,000 by way of additional dowry and was ill treating her under the influence of alcohol on that account.
She also alleged that her mother in law and sister in law also conspired and made false accusations against her and instigated her husband to beat her if she refused to bring the additional dowry.
She alleges that they had conspired to kill her on the night of 6th June, 1983 by sprinkling kerosene/petrol on her but their plan misfired.
She was fed up on account of the beating given to her that night.
She further alleged that her children were also ill treated by her husband and his family members.
On account of these developments she had taken the decision to put an end her life and the lives of her children to spare them of the present and future agony.
At the foot of the letter she appended a note to the effect that even after their death she apprehended that her husband and his family members may try to cause physical harm to her mother and younger brother and requested the police to extend to them the necessary protection.
She implores that her salary, G.P. Fund and other monetary benefits to which she may be entitled from the school authorities should not fall in the hands of her husband and his relatives and may be given to some school or orphanage and her ornaments, etc.
may be recovered from her in laws and be returned to her parents.
Another letter of even date was addressed to her mother (her father having since died) stating that she was fed up of the continuous tension, suffering and agony that her mother had to go through on her account as she could not meet the demand for extra dowry.
She also states that apart from her husband demanding extra dowry he has started making false accusations against her and beating her time and again on that account.
She further alleges that her husband 's mother and sister were privy to this beating by her husband but she had somehow survived.
Then she adds `today I alongwith three children am sacrificing by fire '.
She ends the letter by stating that her mother need not think that her daughter was dead, in fact she will gain freedom from seven years of hell.
In the letter addressed to the Deputy Commissioner of Police there is reference to the earlier application/letter dated 12th October, 1977 by which she had complained about possible risk to life.
It appears from the said letter that the police had gone to inquire into the matter two months later on 11th December, 1977 but during that intervening period the relatives of her husband had intervened and had temporarily patched up the matter.
It was for that reason that she informed the police that no action was immediately necessary but still she insisted that her application may be kept pending, Thus this subsequent letter contains intrinsic evidence about her 795 previous application dated 12th October, 1977.
After the unfortunate incident which took place on the afternoon of 7th June, 1983 a First Information Report was lodged against the husband Iqbal Singh, by the mother of the deceased.
After investigation the husband, his mother and sister were put up for trial.
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306, IPC and sentenced the husband Iqbal Singh to rigorous imprisonment for seven years and a fine of Rs.5,000, in default, rigorous imprisonment for one year.
So far as the other two accused were concerned, having regard to their role and the fact that the mother was an aged and frail woman, he sentenced them to rigorous imprisonment for three years and a fine of Rs.1,000 each, in default, rigorous imprisonment for three months.
Against this order of conviction and sentence all the three accused persons preferred an appeal before the High Court.
The High Court on a reappreciation of the evidence and having regard to the language of Section 306, IPC came to the conclusion that the prosecution evidence did not establish the ingredients of the section, in that, there was no evidence to show that any of the accused was guilty of abetment.
In this view that the High Court took, it allowed the appeal and set aside the order of conviction and sentence passed against the appellants.
The State has, therefore, approached this Court by way of special leave.
In the meantime the accused Manjit Kaur has passed away.
The appeal is, therefore, limited to Iqbal Singh and his sister Kulwant Kaur.
Counsel for the State of Punjab took us through the evidence on record, particularly the letters dated 7th June, 1983 and submitted that this was a clear case of the husband and his sister creating conditions which compelled the deceased to take the extreme step of burning herself and her children.
The evidence of Dr. Harjinder Singh who performed autopsy has not been disputed before us.
His evidence shows that the deaths of all had resulted on account of shock sustained due to excessive burns.
PW 2 Jasbir Kaur, the mother of the deceased, says that her daughter complained to her from time to time about the ill treatment meted out to her by her husband on his own and at the instigation of his mother and sister.
She has also stated that this ill treatment was due to failure of the deceased to meet his demand for extra dowry.
She received a message about the incident while she was at her brother 's residence in amritsar.
She and her son went to the hospital and learnt that her daughter and grand children had passed 795 previous application dated 12th October, 1977.
After the unfortunate incident which took place on the afternoon of 7th June, 1983 a First Information Report was lodged against the husband Iqbal Singh, by the mother of the deceased.
After investigation the husband, his mother and sister were put up for trial.
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306, IPC and sentenced the husband Iqbal Singh to rigorous imprisonment for seven years and a fine of Rs. 5,000, in default, rigorous imprisonment for one year.
So far as the other two accused were concerned, having regard to their role and the fact that the mother was an aged and frail woman, he sentenced them to rigorous imprisonment for three years and a fine of Rs.1,000 each, in default, rigorous imprisonment for three months.
Again this order of conviction and sentence all the three accused persons preferred an appeal before the High Court.
The High Court on a reappreciation of the evidence and having regard to the language of Section 306, IPC came to the conclusion that the prosecution evidence did not establish the ingredients of the section, in that, there was no evidence to show that any of the accused was guilty of abetment.
In this view that the High Court took, it allowed the appeal and set aside the order of conviction and sentence passed against the appellants.
The State has, therefore, approached this Court by way of special leave.
In the meantime the accused manjit Kaur has passed away.
The appeal is, therefore, limited to Iqbal singh and his sister Kulwant Kaur.
Counsel for the State of Punjab took us through the evidence on record, particularly the letters dated 7th June, 1983 and submitted that this was a clear case of the husband and his sister creating conditions which compelled the deceased to take the extreme step of burning herself and her children.
The evidence of Dr. Harjinder Singh who performed autopsy has not been disputed before us.
His evidence shows that the deaths of all had resulted on account of shock sustained due to excessive burns.
PW 2 Jasbir Kaur, the mother of the deceased, says that her daughter complained to her from time to time about the ill treatment meted out to her by her husband on his own and at the instigation of his mother and sister.
She has also stated that this ill treatment was due to failure of the deceased to meet his demand for extra dowry.
She received a message about the incident while she was at her brother 's residence in Amritsar.
She and her son went to the hospital and learnt that her daughter and grand children had passed 796 away.
She then deposed to have received a letter of 7th June, 1983 on 9th June, 1983.
In her cross examination it was brought out that she had not pointed an accusing finger at the mother and sister of accused Iqbal Singh.
She tried to explain the absence of allegation against the said two persons on the ground that she was confused on account of the tragedy.
She further deposed that she had omitted the names of two ladies because of pressure exerted on her by Iqbal singh.
Obviously her explanation cannot carry conviction because it is difficult to believe that she would submit to the pressure of Iqbal Singh whom she considered primarily responsible for the death of her daughter and grand children.
It may also be mentioned at this stage accused Kulwant Kaur is a married women who lives with her husband in another village.
There is no evidence on record to show that she was at the residence of her brother on the date of the incident or immediately prior thereto to instigate her brother.
PW Santosh Singh, brother of the deceased, has maintained that accused Iqbal Singh was ill treating his sister soon after marriage as the latter was not able to meet his demand for extra dowry.
He further deposed that after the death of his father his mother had received a sum of Rs.60,000 or thereabouts by way of provident fund and gratuity and when the accuse Iqbal Singh learnt about the same he pressurised the deceased to secure a sum of Rs.40,000 or thereabouts from that amount to meet his demand for extra dowry.
He had gone with his mother PW 2 Jasbir Kaur to the hospital after learning about the incident.
In cross examination he was questioned about the purchase of a plot in the name of the deceased by Iqbal Singh.
He, however, stated that his father had given a sum Rs.20,000 or 21,000 for purchase of this plot although he could not state the exact price at which it was purchased.
The two letters, one addressed to the Deputy Commissioner of Police and the other to the mother dated 7th June 1983, have been duly proved by the prosecution.
These letters were written immediately before she put an end to her life and the lives of her three children.
These letters reveal her plight immediately before the incident.
There is a mention about an attempt on the part of her husband to kill her on the preceding day.
She apprehended that her children would suffer intolerable miseries if they survived her and, therefore, she took the extreme decision to put an end to their lives also along with her.
This letter clearly brings out her turmoil whereunder she took the extreme step of putting an end to her life.
The earlier letter of 12th October, 1977 also shows that she was being ill treated soon after her marriage.
The divorce deed produced at Exh.
D 2 is dated 30th November, 1977.
This would show that by that time the relatives had intervened and, therefore, when the police came to inquire on 11th December, 1977 she told them that 797 there was no immediate danger but her application should be kept pending.
Considerable emphasis was laid by the learned counsel for the respondents on the statement in Exh.
D 2 attributed to the deceased that she had been forced to marry Iqbal Singh.
Emphasis was also laid on the post script at the foot of the said document made by Iqbal Singh to the effect that he has agreed to a divorce since his wife desires it.
From these two statements counsel for the respondents argued that the accused Iqbal Singh had no grudge against his wife and had expressed his willingness to put an end to the marital relationship as his wife so desired.
He also submitted that the statement of the deceased that she was forced to marry Iqbal Singh went to show that it was she who was keen to put an end to the relationship as she did not desire to live with Iqbal Singh.
But counsel overlooks the fact that there is intrinsic evidence inthe divorce deed that their marital life was unhappy and she apprehended blood shed as well as harm to the children even after they parted company.
Counsel then referred to letter Exh.
D 1 April, 1983 written by the deceased to one Gopal Singh complaining about the behaviour of the Headmaster towards her.
By that letter she expressed her desire to secure a transfer from the school to get rid of the harassment meted out to her by the Headmaster.
In this letter there is a mention that her husband Iqbal Singh was spending considerable time in correspondable time in correspondence with the Headmaster.
From this letter counsel for the respondents submitted that the deceased could have committed suicide on account of the harassment caused to her by the Headmaster of the school.
But that does not explain the killing of the children.
This letter was written on 17th April, 1983 whereas the incident in question occurred on 7th June, 1983 i.e. more than 1 1/2 months thereafter.
The immediate cause for the extreme step taken by the deceased is clearly reflected in the two letters of 7th June, 1983.
Therefore, the inference drawn by the learned counsel for the respondents from the letter of 17th Aril, 1983 cannot advance the defence set up by the accused persons.
Iqbal Singh filed a written statement jointly with Kulwant Kaur wherein he stated that he had not helped his wife to secure a transfer as the family was having a good residence in the village and this was the real cause of quarrel between the two.
The statement shows that the factum of quarrel between the husband and wife is not seriously disputed.
The nature of correspondence he was carrying on with the Headmaster is not difficult to judge.
He then states that he had purchased the plot in the name of his wife for Rs. 12,500 but he does not disclose the source from which the consideration for the plot came.
He further states that his wife was earning Rs.900 per month and, therefore, he could never have entertained an intention to push her to committing suicide.
It 798 would, therefore, appear from the evidence placed on record that the relations between the deceased and Iqbal Singh were strained because of the latter 's demand for extra dowry and they worsened to such an extent that the deceased decided to put an end to her life.
The charge against the accused was under section 306, I.P.C.
That section must be read in the backdrop of the above facts.
Underthat section if any person commits suicide the person who abets the commission of suicide shall be liable to be punished with imprisonment of either description for a term which may extend to ten years and fine.
The question is whether on the facts proved it can be said that either Iqbal Singh or his sister were guilty of abetment.
Chapter V of the Penal Code is entitled `Of Abetment ' and comprises sections 107 to 120 of which we may notice sections 107 and 108 only.
`Abetment ' as defined by section 107 comprises (i) instigation to do that thing which is an offense (ii) engaging in any conspiracy for the doing of that thing and (iii) intentionally aiding by any act or illegal omission the doing of that thing.
Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence.
The word `instigate ' in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc.
Since there is no question of parties being engaged in any sort of conspiracy we have to consider whether there was any intentional aiding for committing suicide.
The dictionary meaning of the word aid is to give assistance, help, etc.
Before we come to grips with the question at issue it is necessary to notice a few legislative changes introduced in the Penal Code to combat the menance of dowry deaths.
The increasing number of such deaths was a matter of serious concern to our law makers.
Cases of cruelty by the husband and his relatives culminated in the wife being driven to commit suicide or being done to death by burning or in any other manner.
In order to combat this menance the legislature decided to amend the Penal Code, Criminal Procedure Code and the Evidence Act by the Criminal Law (Section Amendment) Act, 1983 (No, 46 of 1983).
So far as the Penal Code is concerned, Section 498A came to be introduced whereunder `cruelty ' by th husband or his relative to the former 's wife is made a penal offence punishable with imprisonment for a term which may extend to three years and fine.
The explanation to the section defines `cruelty ' to mean (i) wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health or (ii) causing harassment of the woman with a view to coercing her or any person 799 related to her to meet any unlawful demand for any property or valuable security.
Thus, under this newly added provision if a woman is subjected to cruelty by her husband or his relative it is a penal offence and by the insertion of section 198A in the Code of Criminal Procedure a Court can take cognizance of the offence upon a police report or upon a complaint by the aggrieved party or by the woman 's parents, brother, sister, etc.
The offence is made non bailable.
In so far as the Evidence Act is concerned, a new section 113A came to be introduced which reads as under: "113A. Presumption as to abetment of suicide by a married woman.
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation For the purposes of this section, `cruelty ' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).
" On a plain reading of this provision it is obvious that if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative, it would be permissible for the court to presume that such suicide was abetted by her husband or by such relative of her husband.
The Amendment Act 46 of 1983 received the assent of the President on 25th December, 1983 and was published in the Gazette of India, dated 26th December, 1983.
The trial court rendered its Judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on section 113A, Evidence Act, for otherwise it would have tried to place on record the exact date of marriage to take advantage of the presumption arising thereunder.
The High Court referred to this provision but did not say anything in regard to its application.
Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid.
Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that point.
800 The law underwent a further change with the introduction of section 304B in the Penal Code and section 113B in the Evidence Act by the Dowry Prohibition (Amendment) Act, 1986.
Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry, such death is described as dowry death under section 304B for which the punishment extends to imprisonment for life but not less than imprisonment for seven years.
By section 113B, Evidence Act, the court has to raise a presumption of dowry death if the same has taken place within seven ears of marriage and there is evidence of the woman having been subjected to cruelty and/or harassment.
The legislative intent is clear: to curb the menance of dowry deaths, etc., with a firm hand.
We must keep in mind this legislative intent.
It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get.
That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage.
This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life.
It a married woman is subjected to cruelty or harassment by her husband or his family members section 498A, I.P.C. would be attracted.
If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under section 304B, I.P.C.
When the question at issue is whether a person is guilty of dowry death of a woman and and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, section 113B, Evidence Act provides that the court shall presume that such person had caused the dowry death.
Of course if there is proof of the person having intentionally caused her death that would attract section 302, I.P.C. Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would 801 squarely fall within the ambit of section 306, I.P.C.
In such a case the conduct of the person would tantamount to inciting provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide.
In the present case the facts clearly reveal from the divorce deed Exh.
D 2 that the relations between the husband and the wife were strained even in 1977.
There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children.
Before the execution of this document she had sought police protection by her application/letter dated 12th October, 1977.
Then in April, 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband.
Her husband had kept up the pressure for extra dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the G.P. Fund, Gratuity, etc., due to her father.
Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture.
Added to that was the anxiety caused by her husband 's conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving.
The last straw on the camel 's back fell when she was severely beaten on the previous day, i.e. 6th June, 1983 as is evident from her letter of 7th June, 1983.
An atmosphere of terror was created to push her into taking the extreme step.
It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more miserable after she is dead and gone.
In this fact/situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his wilful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C. We think that the High Court committed an error in reversing the conviction.
We, therefore, allow this appeal, set aside the High Court 's order and restore the order of conviction and sentence passed by the trial court.
We cannot countenance the plea for reduction of his sentence.
No order on his C.M.P. So far as his sister 's involvement is concerned, we think the evidence falls short of proof beyond reasonable doubt and, therefore, we see no reason to interfere with the High Court 's order.
We, therefore, dismiss the State 's appeal directed against her.
Her bail bonds will stand cancelled.
V.P.R. Appeal allowed.
| The appellant was convicted by the courts below under Section 302 IPC and sentenced to life imprisonment for the murder of one G.
It was alleged that when the deceased and his companion, PW 4 were proceeding in a rickshaw, pulled by PW 3, the appellant and his five companions launched an attack on them.
While PW 4 received an injury by a cycle chain, the deceased received stab injuries, to which the succumbed on the spot.
On the First Information Report lodged by PW 4, statements of three eye witnesses viz. PW I, an on looker and PWs 3 and 4 recorded during the course of investigation, and the evidence regarding discovery of incriminating articles and find of human blood on them, the appellant and his five companions were chargesheeted for the murder of the deceased. 2 During the trial, two of the eye witnesses, viz. PWs 3 and 4 were declared hostile, since they expressed their inability to identify the accused persons as assailants of the deceased.
Though PW 1 supported the prosecution in examination in chief, he expressed some doubt regarding the identity of the appellant and one other assailant in the cross examination.
The trial court refused to place reliance on the evidence of the three eye witnesses and acquitted all, except the appellant.
It convicted the appellant under Section 302 IPC and sentenced him to life imprisonment on the evidence that the appellant was absconding, that he had discovered the weapon which was found to be stained with human blood and the factum of find of human blood on the pant worn by him at the time of his arrest The appellant 's appeal was dismissed by the High Court.
While ignoring the evidence of PWs 3 and 4, the High Court relied on the evi dence of PW 1 holding that his subsequent attempt to create a doubt regarding the identity of the appellant was of no consequence, since there was intrinsic material in his evidence to establish the presence of the appellant amongst the assailants of deceased.
It also relied on the discovery evidence and find of human blood on the weapon and on the pant he was wearing at the time of his arrest.
The State did not prefer an appeal against the five companions of the appellant who were acquitted by the trial court.
In the appeal before this Court on behalf of the appel lant it was contended that (1) the prosecution version regarding the incident, particularly, the involvement of the appellant was highly doubtful since the correctness of the First Information Report, purported to have been lodged by PW4 was itself doubtful since he had disowned it; (2) the presence of PW1 at the scene of offence and at the time of occurrence was highly doubtful and the High Court committed an error in placing reliance on his testimony in examina tion in chief, while brushing aside his statement in cross examination; (3) same set of Panch witnesses had been em ployed for all the discovery panchnamas as well as the attachment of clothes of the appellant and others and since PW5, Panch witness was closely associated with the family and was a stock witness for the prosecution, no reliance could be placed on the evidence of such a highly interested and chosen witness and consequently find of human blood on the weapon and the pant lost its probative value; (4) the two circumstances, viz. that the appellant was not found for two days, and human blood was present on the weapon and his pant constituted extremely thin and weak evidence to record a finding of guilt, particularly, when the trial court had discarded all the eye witnesses ' evidence and doubted the contents of the FIR, and when the Serologist did not deter mine the blood group of the stains on the weapon and pant of the 3 appellant; (5) in the absence of positive evidence that the fatal injury ' No. I was caused by the appellant only, his conviction substantively under Section 302 IPC could not be sustained; (6) since appellant 's companion were acquitted, and the State had not preferred any appeal against their acquittal, he could not be convicted with the aid of Section 34 or 149 IPC, since the acquittal of the co accused created a legal bar against his conviction, which could not be got over by reappreciation of evidence; and (7) the eye witness es ' evidence could not be relied upon as their names did not figure in the inquest report prepared at the earliest time.
On behalf of the State it was contended that (1) evi dence of PWs 3 and 4 could not be treated as effaced from the record, merely because the prosecution chose to treat them as hostile on the limited question of identity of assailants;(2) PW I was neither a chance witness nor was he faking his presence at the scene of occurrence at the mate rial time; (3) it was not necessary in law to mention names of witnesses in the inquest report as the purpose of prepar ing the report was merely to make a note of the physical condition of the body and the marks of injury thereon no ticed at that point of time; (4) nothing was alleged against PW 5.
Panch witness, nor the appellant had given any expla nation regarding existence of human blood on the weapon and his pant in his statement recorded under section 313 of the Cr.
P.C.; (5) even if the appellant could not be substan tively convicted under Section 302 II 'C, he could still be convicted with the aid of Section 34 or 149 II 'C, if the Court came to the conclusion that more than one person launched the attack and notwithstanding the acquittal of others by the trial court, this Court could reach its own conclusion as the higher court was not bound by the appreci ation of evidence by the trial court or even the High Court.
Dismissing the appeal, this Court, HELD: 1.1 The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him.
The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
[13C] Bhagwan Singh vs State of Haryana, ; Rabinder Kumar Dey vs State of Orissa, ; and Syed lqbal v.state of Karnataka, [1980] 1 S.C.R. 95, relied on.
4 SUPREME COURT REPORTS [1991] 3 S.C.R. 1.2 In the instant case the evidence of two eye witness es PW 3 and 4 challenged by the prosecution in cross exami nation because they refused to name the accused in the dock as the assailants of the deceased.
The trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident.
It refused to look into their evidence treating it as non est, on their being declared hostile by the prosecution.
This approach of the trial court is legally unacceptable.
The High Court has not endeavoured to assess their evidence since it thought that the conviction of the appellant could be sustained on the evidence of PW 1.
From the evidence of these two wit nesses the fact that the deceased and PW 4 came to the place of occurrence in the rickshaw of PW 3 is established.
So also the fact that on their reaching the place of occur rence, they were surrounded by some persons and an assault was launched on them in which PW 4 received an injury and the deceased died is also established.
The only area they have not supported the prosecution and resiled from their earlier statements is regarding the identity of the assail ants but the fact remains that the deceased had received three injuries as narrated by PW 12, who conducted the post mortem, and succumbed to the injuries on the spot.
Similarly, there is no doubt at all that PW 4 had gone to the police station and had lodged the First Information Report.
The detailed narration about the incident in the First Information Report goes to show that the subsequent attempt of PW 4 to disown the document, while admitting his signature, thereon, is a shift for reasons best known to him.
Once the presence of PW 4 is accepted, the presence of PW 3 at the scene of occurrence cannot be doubted.
[13D, 14C, D F, B] 2.
The Trial Court has not accepted PW I 's evidence on the ground that he was not a natural witness, and was only a chance witness.
However, on a reading of the entire evidence of PW I it is clear that his statement in cross examination on the question of identity of the appellant and one of his companions is a clear attempt to wriggle out of what he had stated earlier in his examination in chief.
Since the inci dent occurred at a public place, it is reasonable to infer that the street light illuminated the place sufficiently to enable this witness to identify the assailants.
During the one month period that elapsed since the recording of exami nation in chief, something transpired which made him shift his evidence on the question of identity to help the appel lant.
In the circumstance there is no doubt that PW I had ample opportunity to identify the assailants of the de ceased, his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable.
There are no contradiction in his evidence to doubt his testimony.
He is a totally independent wit 5 ness, who had no cause to give false evidence against the appellant and his companions.
Therefore, his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants.
[14H 16C] 3.1 The evidence of eye witnesses could not be rejected on the ground that their names did not figure in the inquest report prepared at the earliest point of time.
[16D] 3.2 A perusal of Section 174 of the Criminal Procedure Code would clearly show that the object of the proceedings under this Section is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death.
The question regarding the details as tO how the deceased was assaulted or who assaulteld him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under the section.
In these circumstances, neither in practice nor in law, was it necessary for the police to have mentioned these details in the inquest re port.
[16E F] Pedda Narain vs State of Andhra Pradesh, [1975] Supp.
S.C.R. 84 relied on.
4.1 There was no injunction in law against the same set of witnesses being present at the successive enquiries if nothing could be urged against them.
Even in the case of an interested party, his evidence cannot be overlooked on that ground.
[17G. E] Himachal Pradesh Administration vs Omprakash, ; , relied on.
4.2 In the instant case, merely because the same set of Panch witnesses were used for Witnessing all the three discoveries as well as the attachment of the clothes of the appellant and his companions, PW 5 's evidence could not be discarded since nothing had surfaced in crossexamination to shake his evidence.
Besides, except being a good neighbour nothing more is shown against him.
As regards recovery of weapon, as well as the appellant 's blood stained pant, there is hardly any effective cross examination, nor has the appellant offered any explanation in his statement recorded under Section 313 of the Criminal Procedure Code.
Hence PW 5 's evidence cannot be rejected on the specious plea of being an interested witness.
In the circumstances, hi, evidence was rightly accepted by both the courts below.
[17 A, C D, F, 18 A] 6 5.1 The factum of find of the incriminating weapon from the appellant 's garage, and his inability to explain the presence of human blood thereon is a circumstance against him.
Similarly, the existence of human blood on the pant that he was wearing at the time of his arrest, for which no explanation was offered by him, is also a circumstance against him, particularly because no injury was noticed on him.
[18B D] 5.2 There is also direct testimony of PW I, besides that of PWs 3 and 4.
The find of human blood on the weapon and the pant, with no explanation for the same lends corrobora tion to the testimony of PW 1.
When he states that he saw the appellant inflicting a knife blow on the deceased.
In the circumstances, it cannot be accepted that in the absence of determination of blood group, the find of human blood is of no consequence.
[19B C] Kansa Behera vs State of Orissa, ; and Surinder Singh vs State of Punjab, [1989] Suppl.
2 S.C.C. 21, distinguished.
6.1 No doubt it is not possible from the ocular evi dence to record a definite finding of fact that the appel lant had caused the fatal injury.
On the contrary the evi dence of PW 1 indicates that in all probability the stab wound inflicted by the appellant resulted in injury No. 2, which by itself was not sufficient in the ordinary course of nature to cause death.
I Since the prosecution evidence does not disclose that the fatal blow, which caused injury No. 1 was given by the appellant, it means that the fatal blow was given by someone else, and this establishes the fact that more than one person participated in the commission of the crime.
On an independent examination appreciation of the evidence of the three eye witnesses, viz. PWs 1, 3 and 4 that several persons had participated in the commission of the crime.
The failure on the part of PWs 3 and 4 to identi fy the others does not alter the situation.
On the other hand, from the evidence of PW 1, it is clear that some of the accused participated in the commission of the crime.
[19E, 25A C] 6.2 No doubt in the absence of a State appeal, the High Court could not, nor can this Court interfere with the acquittal of the co accused, but this Court is not bound by the facts found proved on the appreciation of evidence by the courts below, and is, in law, entitled to reach its own conclusion different from the one recorded by the courts below on a review of the evidence.
The acquittal of the accused does not create a legal bar against the conviction of the appellant with the aid of Section 34 or 149 IPC.
[21C F] 7 Brathi vs State of Punjab, ; , affirmed.
Baikuntha Nath Chaudhury vs The State of Orissa, ; Kasturi Lal vs State of Haryana, ; Chandubhai Shanabhai Parmdr vs State of Gujarat, ; Sukh Ram vs State of M.P., [1989] Suppl.
1 SCC 214 and Krishna Govind Patil vs State of Maha rashtra; , , distinguished.
6.3 In the circumstances, the conviction of the ap pellant can be sustained with the aid of Section 34 or 149 as the case may be and it is safe to confirm the appellant 's conviction with the aid of section 34 I.P.C. [25D] The conviction of the appellant is accordingly con firmed and sentence awarded to him is maintained.
[25E] 7.
The omission to refer to the decision of larger Bench rendered Krishna Govind Patil 's case does not render the decision in Brathi 's case per incuriam.
In any event that decision does not take a view inconsistent with the ratio laid down in Brathi 's case.
[24G] Sukh Ram vs State of M.P., [1989] suppl.
1 SCC 214 and Brathi vs State of Punjab; , referred to.
|
Civil Appeal No. 2649 of 1984.
Appeal U/s 116A of the R.P. Act 1951 from the Judgment and Order dated 30.5.1984 of the Punjab & Haryana High Court at Chandigarh in E.P. No. 8 of 1982.
H.L. Sibal, Kapil Sibal, Mrs. Madhu Tewatia Singh and N.M. Popli for the Appellant.
S.N. Kacker and Ravinder Bana for the Respondents.
by VARADARAJAN, J.
This appeal by the first respondent in Election Petition No. 8 of 1982 on the file of the Punjab and Haryana High Court is filed against the judgment of the learned Single Judge, allowing the election petition and setting aside the appellant 's election to the Haryana Legislative Assembly from the Jind constituency in the election held on 19 5 1982.
Out of 26 nomination papers filed, 24 were found to be valid and ultimately 14 candidates remained in the field.
The real contest was between the appellant Brij Mohan, who was an independent candidate supported by the Lok Dal and the first respondent Manga Ram who contested as the Congress (I) candidate.
In the counting which took place on 20 5 1982 it was found that the appellant had secured 27045 valid votes while the first respondent had secured 26899 valid votes and the appellant was accordingly declared elected.
The first respondent filed the election petition challenging the p appellant 's election on the following grounds, namely: (I) corrupt practice of bribery as defined in section 123(1) of the Representation of People Act, 1951; (2) corrupt practice of publication of various statements relating to the personal character of the first respondent which were false; (3) result of the election in so far as it related to the appellant having been materially affected by en masse violation of the statutory provisions and (4) large scale receiption of void votes in favour of the appellant but for which the first respondent would have been declared elected.
The first respondent prayed in the election petition for (I) the appellant 's election being set aside as void on the above grounds; (2) the appellant being declared to have committed corrupt practice and (3) the first respondent being declared to have been duly elected, 315 The learned Single Judge who tried the election petition allowed it with costs on only one ground and set aside the appellant 's election as void on that ground, namely, that he committed the corrupt practice of bribery by contributing a sum of Rs. 5100/towards the cost of construction of a temple for the backward classes in Kandela village in order to get the votes of the members of those classes cast in his favour in that election.
It is, therefore, necessary to state the case of the parties briefly in regard to only this item of corrupt practice.
The first respondent has alleged in the election petition that the appellant visited Kandela village on or about 16 5 1982 accompanied by his father Sita Ram and two others Ram Kishan and Amrit Lal and they contacted Dalip Singh, Sarpanch of the village and one Dewan Singh, Secretary of the backward classes.
The appellant appealed to the backward class voters assembled at the house of one Dharam Singh for casting their votes in his favour.
The voters present there included Dewan Singh, Hari Ram, Devi Ram, Fateh Singh and Mauji Ram.
The voters told the appellant that they intended to cast their votes in favour of the Congress (I) candidate as they had always been in favour of the Congress (I) party.
The appellant, thereafter, had a talk with the Sarpanch Dalip Singh and one Dharam Singh and subsequently stated, for inducing the voters to cast their vote in his favour, that he was prepared to give a donation of Rs. 5100 as he had been told that they needed some money for their mandir.
Accordingly, he gave a sum of Rs. 5100 to the Sarpanch Dalip Singh who passed it on to Dharam Singh and Dewan Singh.
The voters thereafter assured the appellant that they would vote for him and ensure that every vote belonging to their class will go in his favour.
The appellant denied this allegation saying that he never visited Kandela village in the company of Sita Ram, Ram Kishan and Amrit Lal and never gave Rs. 5100 to the Sarpanch Dalip Singh and that the entire allegation in the election petition regarding this item of corrupt practice is false and mischievous.
In regard to this item of corrupt practice there is evidence of the election petitioner/first respondent Mange Ram, P.W. 1, Dewan Singh, P.W, 16, Manuji Ram, P.W. 90, Fateh Singh, P.W. 91 and Prahlad, P.W. 92 on the side of the first respondent and of the appellant, R.W. 1 on the side of the appellant.
The learned Single 316 Judge found that after a Commissioner appointed by the Court contacted P.W. 16 and obtained a register from him.
P.W. 16 was suspended by the District Education Officer, Jind by an order dated 23 11 1982 and transferred to Narnaul situate 200 miles away from his original place which was his home town and he opined that it was done in order to overawe P.W. 16 so that he may not appear as a witness in this election petition.
He further observed that "It was in his (appellant 's) interest to see that this witness did not come on record.
If illegal pressure was brought to bear on a witness who had come to this Court to depose about this charge, normal inference and presumption would be that the pressure had been brought to bear upon him either by the party who was interested in seeing that damaging evidence was not led against him or by some one else at his instance.
I am clearly of the view that respondent No. I had somehow or other secured that order of suspension and transfer of Dewan Singh, P.W. 16".
We are wholly unable to appreciate this reasoning of the learned Judge.
We do not see how the appellant was obliged to explain the circumstances under which P.W. 16 came to be suspended and transferred to Narnaul by the District Educational Officer 's order dated 23 11 1982 after the Commissioner appointed by the Court approached him and obtained a register from him or how the adverse inference could be drawn against the appellant by the learned Judge merely because the appellant was unable to explain how P.W. 16 came to be suspended and transferred by the District Educational Officer 's order dated 23 11 1982 after a register had been obtained from him by the Commissioner appointed by the Court and it came to be known that p.
W. 16 may be examined as a witness in this election petition, We think that there is no justification whatsoever to draw any such adverse inference against the appellant.
The appellant, R.W. 1 had denied that he had gone to Kandela village on 16 5 1982 either alone or in the company of Sita Ram and others.
He has denied that he contacted the Sarpanch Dalip Singh and others and gave Rs 5100 as alleged in the election petition and that the voters of Kandela village held out any promise for casting their votes in his favour.
In the cross examination on suggestion was made to R.W. 1 that he gave a sum of Rs. 5100 for the construction of a mandir for the backward class voters of Kandela village on 16 5 1982 or on any other date, to induce them to cast their votes in his favour, 317 The first respondent.
P. W. l has stated in his evidence that the appellant visited Kandela village on 16.
1982 accompanied by the Sarpanch Dalip Singh, Hari Ram, Dewan Singh and others, that all of them and the members of the backward classes assembled in the house of the Backward Classes Samiti Chairman Dharam Singh, that the appellant gave Rs. 5100 to the members of the backward classes for the construction of a Viswakaram Mandir in the village and the Society passed a receipt for that amount and also made an entry in its own books of accounts kept in the regular course of business and that the members of the backward classes who received the amount promised to cast their votes in favour of the appellant.
In his cross examination he has stated that the bribe money was paid by the appellant on 15.5.1982.
It would appear from his evidence that he claims to have personal knowledge about the alleged visit of the appellant and others to Kandela village on 16.5.1982 and about the alleged payment of Rs. 5100 by the appellant for the construction of a temple for the backward classes people of the village in order to induce the voters of those classes to cast their votes in his favour.
But in his affidavit verifying the election petition he has stated that the allegations made in para 9(d) of the election petition regarding this item of corrupt practice are based upon information received by him from Dewan Singh.
Therefore, the evidence of P.W. I regarding this item of alleged corrupt practice is wholly unacceptable.
Dewan Singh, P.W. 16 has stated in his evidence that he is the Secretary of the Managing Committee of a temple that was being constructed in Kandela village for the members of the backward, classes, that the appellant attended a meeting of the backward classes in Dewan Chand 's house on 15 5 1982, and volunteered to give a donation of Rs. 5100 for that temple provided the members of the backward classes cast their votes in his favour and that on 16.5.1982 one Madan Lal gave Rs. 5100 to the Temple Committee 's President Dharam Singh in his presence and he himself made the entry exhibit PW 16/2 about that payment in the Temple Committee 's cashbook, exhibit P.W. 16/1.
He has admitted that the entire cash book, exhibit P.W. 16/1 is in his hand writing and does not bear the signature of any office bearer of the Viswakarama Samiti.
But he has denied that he has got up this cash book in connivance with the first respondent for the purpose of this election petition.
His evidence that the appellant offered on 15.5.1982 to give a sum of Rs. 5100 in the house of Dewan Chand and that it was given by one Madan Lal to Dharam Chand is inconsistent with the allegation in the election petition 318 that the appellant offered to give Rs. 5100 on 16.5.1982 as donation and gave it himself to the Sarpanch Dalip Singh and he passed it on to Dharama Singh.
Therefore, the evidence of P.W. 16 regarding this item of alleged corrupt practice cannot be accepted.
Mauji Ram, P,W. 90 has stated in his evidence that the appellant and his father and Sarpanch Dalip Singh collected the people belonging to black smith and carpenter communities in the house of the carpenter Diwana on 14.5.1982 and requested the people to cast their votes in his favour, that the people told the appellant and his two companions that they would inform that after discussing about the matter and asked the appellant and his companions to visit the village again on 16.5.1982, that accordingly the appellant and others came to the village on 16 5.1982 and asked the people to vote for the appellant, that the people told the appellant and his companions that they would vote for him if he gave money and that the appellant thereupon gave a sum of Rs 5100 to Dharma Lohar.
The evidence of this witness is that the people asked for money to vote in favour of the appellant and that thereupon he gave Rs. 5100 to Dharma Lohar whereas the allegation in the election petition is that after the voters told the appellant that they intended to vote for the Congress (I) candidate as they had always been in favour of the Congress (I) Party the appellant had a talk with the Sarpanch Dalip Singh and one Dharam Singh and he subsequently stated, for inducing the voters to cast their votes in his favour, that he was prepared to give a donation of Rs. 5100 as he had been told that they needed some money for their mandir and that he accordingly gave Rs. 5100 to the Sarpanch Dalip Singh and he passed it to Dharam Singh and Dewan Singh There is thus a vital discrepancy between the pleading in the election petition and the evidence of P.W. 90.
P.W. 90 has stated that he does not know whether any receipt was passed for the amount whereas P.W. 16 has stated in his evidence that Madan Lal gave Rs 51()0 to the Temple Committee 's President Dharam Singh in his presence on 16 5 1982 and he made an entry for receipt of that amount in exhibit PW. 16/2 in the cash book, exhibit P.W. 16/1 and P.W. ` I has stated in his evidence that the Society passed a receipt for the amount and also made an entry in the cash book about the money.
It is significant to note that P.W. 90 was not cited as a witness in the list of witnesses filed by the first respondent on 11.11.1982 and 26.11.1982 and that he was examined as a witness only on 25.7.1983.
In these circumstances, we think that no reliance would be placed on the evidence of P.W. 90 regarding this item of alleged corrupt practice.
319 Fateh Singh, P.W. 91 is yet another witness whose name was not mentioned in the list of witnesses filed by the first respondent on 11.11.1982.
He has stated in his evidence that four or five days prior to the date of poll 19.5 1982, the appellant and his father and two others, Sarpanch Dalip Singh and Madan Lal, visited Kandela village and come to the house of Diwana Khati, that many voters belonging to the backward classes were summoned to that house and the appellant and his companions offered to donate some money to the temple provided the people assembled there and other members of the community voted for the appellant and they told them that they would discuss about the matter and let them know, that two or three days thereafter the appellant came by a car they assembled in the house of the black smith Dharama and that in his presence Madan Lal who came with the appellant gave Rs. 5100 to the Sarpanch Dalip Singh who in turn passed it on to Dharma Lohar and he promised that the members of his community would vote for the appellant.
The evidence of this witness is not consistent with the allegation made in the election petition that the appellant gave a sum of Rs 5100 to the Sarpanch Dalip Singh and that he passed it on Dharam Singh and Dewan Singh.
We are, therefore, unable to place any reliance on his evidence regarding this item of alleged corrupt practice.
Then there remains the evidence of Prahalad, P.W. 92.
He has stated that the appellant, came to Kandela village on 16.5.1982 alongwith the Sarpanch Dalip Singh and one Madan Lal of that village, that the appellant who had visited the village five days prior to the date of the poll suggested that the voters belonging to the community and the members of the Managing Committee should vote for him and stated that he would make some contribution for the temple funds and asked Madan Lal to give the money, that thereupon Madan Lal gave Rs. 5100 to the Sarpanch Dalip Singh and he passed it on to Dharma Lohar and undertook the responsibility to have votes cast in favour of the appellant and that the temple treasurer Ram Singh passed a receipt for the amount.
The evidence of this witness that Madan Lal of Kandela village gave Rs. 5100 is inconsistent with the allegation made in the election petition that the appellant himself gave that amount.
His evidence that it was given to Dalip Singh though consistent with the allegation made in the election petition and the evidence of P.W. 91 is inconsistent with the evidence of P.W. 90 that it was given to Dharma Lohar.
We 320 are, therefore, unable to place any reliance on his evidence regarding this item of alleged corrupt practice.
The evidence of P.Ws. 1, 16, 90, 91, and 92 referred to above is wholly unreliable and does not prove the corrupt practice of which the appellant has been found guilty by the learned Single Judge.
We may state here that Mr. S.N. Kacker, Senior Advocate who appeared for the respondent, probably felt that the Judgment of the learned Single judge holding the appellant guilty of this item of corrupt practice is wholly indefensible and he candidly admitted that he will not advance any argument at all in favour of the first respondent.
In these circumstances for the reasons mentioned above, we allow this appeal but without costs and set aside the judgment of this learned Single Judge who found the appellant guilty of this item of corrupt practice.
M.L.A. Appeal allowed.
| Notwithstanding the provision in section 105 of the Representation of the People Act (Act XLIII) of 1951 that every order of an Election Tribunal made under the Act shall be final and conclusive, the High Court and the Supreme Court have unfettered jurisdiction to examine whether the tribunal, in the exercise of its undoubted jurisdiction, has acted legally or otherwise, This jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally.
The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal.
It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction.
The High Courts and the Supreme Court alone can determine what the law of the land is vis a vis all other Courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not.
All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136 of the Constitution.
The jurisdiction of the High Courts under Article 226, with that of the Supreme Court above them, re main it , fullest extent despite section 105 of the Representation 2 of the People Act.
Limitations on the exercise of, such jurisdiction can only be imposed by the Constitution.
The powers of the High Courts under Article 226 of the Constitution are discretionary and, though no limits can be placed upon that discretion, it must be exercised along recognised lines and not arbitrarily.
In the exercise of their jurisdiction under Article 226, the High Courts should not act as Courts of Appeal or revision to correct mere errors of law which do not occasion injustice in a broad and general sense.
It is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about special rights, as in election cases, decided as speedily as may be.
The High Courts should not therefore entertain petitions for prerogative writs lightly in this class of case.
The appellant filed an election petition under section 100 of the Representation of the People Act.
He appeared on the first and 'Subsequent hearing at Kotah.
The proceedings were then adjourned for certain hearings at Udaipur.
The appellant did not appear on the first three hearings at that place so the tribunal proceeded ex parte.
His counsel appeared on the fourth hearing but was not allowed to take any further part in the proceedings because no good cause was shown for the earlier non appearance and so the tribunal refused to set aside its "ex parte order".
Held, (1) Under section 90(2) of the Representation of the People Act the procedure for the trial of election petitions is to be, as near as may be, the same as in the trial of suits under the Civil Procedure Code; (2) under the Civil Procedure Code there is no such thing as an ex parte order for non appearance" which precludes further appearance at an adjourned hearing until the Order is set aside.
If a party appears at an adjourned hearing the court has a discretion (which must be exercised judicially) either to allow him to appear oil such terms as it thinks fit, or to disallow further appearance; but (3) if he is allowed to appear then, unless good cause is shown under Order 9, rule 7 for the earlier non appearance the proceedings must continue from the stage at which the later appearance is entered and the party so appearing cannot be relegated to the position he would have occupied if he had appeared at the earlier hearing or hearings; also, (4) in exercising its discretion the court must see that justice is done to all concerned, including the witnesses Rule 6 (1) (a) of Order 9 of the Civil Procedure Code is confined to the first hearing of the suit and does not apply, per se to subsequent hearings.
0. 9, r. 7 gives a party a right to be relegated to the position he would have occupied if he had appeared at the earlier hearing or hearings if he shows good cause.
It does not per se prevent further appearance when no good cause is shown.
O. 17, r. 2 applies at the adjourned hearing and there, the Court is given a wide discretion to make such order as it thinks fit.
3 A code of procedure is a body of law designed to facilitate justice and further its ends, and should not be treated as an enactment providing for punishments and penalties.
The laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.
Subject to clearly defined exceptions the laws of procedure should be construed wherever reasonably possible, in the light of that principle.
The court is invested with the widest possible discretion to see that justice is done to all concerned.
No hard and fast rule can be laid down; and the court in the exercise of its judicial discretion will have, in a given case, to determine what consequences are to follow from non appearance.
An order awarding costs, or an adjournment, or the consideration of the written statement and the framing of the issues on the spot, can in some cases meet the ends of justice.
In other cases, more drastic action may be called for.
By "ends of justice" is meant not only justice to the parties but also to witnesses and others who may be inconvenienced.
The convenience of the witnesses, which deserves the greatest consideration, is ordinarily lost sight of in this class of case.
Justice strongly.
demands that this unfortunate section of the general public com pelled to discharge public duties, usually at loss and inconvenience to themselves should not be ignored in the over all picture of what will best serve the ends of justice; and it may well be a sound exercise of discretion in a particular case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant to cross examine them.
But broadly speaking, after all the various factors have been taken into consideration and carefully weighed, the endeavour should be to avoid snap decisions and to afford the parties a real opportunity of fighting out their cases fairly squarely.
The Court must in every case exercise the discretion given to it.
Its hands are not tied by a so called "ex parts order", and, if it thinks they are tied by rule 7 of Order 9 of the Code, then it is not exercising the discretion which the law says it should, and in a given case interference may be called for.
Held, that the Election Tribunal did not exercise the discretion given to it by law because of a misapprehension that it had none.
It was directed to do so now and to proceed with the further hearing of the case in accordance with law.
Hari Vishnu vs Ahmed Ishaque ([1955] 1 S.C.R. 1104), Darga Shankar Mehta vs Thakur Raghuraj Singh ([1955] 1 S.C.R. 267), and Raj Krushna Bose vs Binod Kanungo ([1954] S.C.R. 913, 918), applied.
Hariram vs Pribhdas (A.I.R. 1945 Sind 98, 102), distinguished.
Sewaram vs Misrimal (A.I.R. , 14), overruled.
Venkatasubbiah vs Lakshminarasimham (A.I.R. , approved Balakrishna Udayar vs Vasudeva Ayyar (I.L.R. , 4 T. M. Barret vs African Products Ltd. (A.I.R. 1928 P.C. 261, 262) and Sahibzada Zeinitlabdin Khan vs Sahibzada Ahmed Baza Khan (5 I.A. 233, 236), applied.
Case remitted to, the Tribunal:
|
section 86, 147, and 155 of 1952) under article 32 of the Constitution for writs in the nature of habeas corpus.
Petitioners in person in ,petitions Nos. 86, 147 and 157 of 1952.
Rajani Patel for the petitioner in petition No. 155.
M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for the respondents.
R. Ganapathi Iyer for the intervener (State of Hydera bad).
May 26.
The Judgment of the Court was delivered by BOSE J.
This petition and three others, namely peti tions Nos.
147, 155 and 157 of 1952, raise issues regarding the vires and applicability to these cases of section 3 of the Preventive Detention (Amendment) Act, 1952.
This judg ment is confined to those points and will govern these cases only in so far as they raise those points.
The remaining points which do not touch these issues will be dealt with by another Bench.
The only exception is a point raised in petition No. 155 of 1952 with which the other petitions are not concerned.
We will deal with that separately.
The present petition (No. 86 of 1952) was argued very ably and with commendable conciseness by the petitioner in person.
The fact that he has not been able to persuade us to his view is not due to any defect in his presentation of the case.
The petitioner was arrested on the 15th of November, 1951, and an order of detention under the Preventive Deten tion Act of 1950 was served on him the same day, and he was given the grounds of detention on the following day, the 16th.
His case was placed before an Advisory Board and on the 8th of February, 1952, the Bombay Government "confirmed and continued" the detention under section 11 (1) of the Preventive Detention Act of 1950.
This Act, as it originally stood, was due to expire on the 1st of April, 1951, but in that year an amending 686 Act was passed which, among other things, prolonged its life to the 1st of April, 1952.
The order of detention in this case was passed under the Act of 1950 as amended by the ,Act of 1951.
According to past decisions of this Court, the detention would have expired on the 1st of April, 1952, when the Act of 1950 as amended in 1951 would itself have expired.
But a fresh Act was passed in 1952 (Act XXXIV of 1952), the Preventive Detention (Amendment) Act, 1952.
The effect of this Act was to prolong the life of the Act of 1950 for a further six months, namely till the 1st of Octo ber, 1952.
The question is whether that Act also prolonged the detention and whether it had the vires to do so.
It was contended that the mere prolongation of the life of an Act does not, by reason of that alone, prolong the life of a detention which was due to expire when the Act under which it was made expired.
Therefore, as the Act under which the present detention was made was due to expire on the 1st of ApriL, 1952, the mere prolongation of its life by the amending Act did not affect a prolongation of the detention.
Accordingly, the petitioner should have been released on the 1st of April, 1952, and as there is no fresh order of detention he is entitled to immediate release.
We need not express any opinion on that point because there is present in the amending Act something more than a mere prolongation of the life of the old one.
There is section a which is in these terms: "Validity and duration of detention in certain cases Every detention order confirmed under section 11 of the principal Act and in force immediately before the commence ment of this Act shall have effect as if it had been con firmed under the provisions of the principal Act as amended by this Act; and accordingly, where the period of detention is either not specified in such detention order or specified (by whatever form of words) to be for the duration or until the expiry of the principal Act or until the 31st day of March, 1952, such detention order shall continue to 687 remain in force for so long as the principal Act is in force, but without prejudice to the power of the appropriate Government to revoke or modify it at any time.
" It will be noticed that the concluding part of this section states that the detention order shall remain in force "for so long as the principal Act is in force." Sec tion 2 of the amending Act defines the "principal Act" to mean the Act of 1950.
Therefore, it was argued, as the Act of 1950 was due to expire on the 1st of April, 1952, the present detention also came to an end on that date and so, in the absence of a fresh order of detention, the petition er 's detention after that date was illegal.
This argument, though ingenious, is fallacious.
The construction of an Act which has been amended is now governed by technical rules and we mast first be clear regarding the proper canons of construction.
The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.
This is the rule in England:see Craies on Statute Law, 5th edition, page 207; it is the law in Amenca: see Crawford on Statutory Construc tion, page 110; and it is the law which the Privy Council applied to India in Keshoram Poddar vs Nundo Lal Mallick(1).
Bearing this in mind it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments.
Therefore, the moment the Act of 1952 was passed and section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by section 2, that is to say, the Act of 1950 now due to expire on the 1st of October, 1952.
(1)(1927) 54 I.A. 152 at 155.
688 Turning now to section 3, whose vires is questioned, and examining it clause by clause we first get these words: "Every detention order confirmed under section 11 of the principal Act and in force immediately before the commencement of this Act.
" According to the rule of construction just examined, the words "principal Act" mean the Act of 1950 as amended by the Acts of 1951 and of 1952, 'that is to say, the Act of 1950 due to expire on the 1st of October, 1952.
Incidental ly, in the particular context it could not mean the Act of 1950 as it stood in 1950 because no order confirmed under it as it then stood could have been alive "at the commencement of this Act", namely on the 15th of March, 1952.
The section contin ues "shall have effect as if it had been confirmed under the provisions of the principal Act as amended ' by this Act.
" The underlined words "as amended by this Act" were relied on to show that wherever the words "the principal Act" were referred to they meant the unamended original Act of 1950, otherwise these words would have been unnecessary.
In our opinion, they were unnecessary in the sense that their absence would not have made any difference to the interpretation though it would have made the section harder to follow and understand.
We say that for this reason.
Without the underlined words the section paraphrased would read "Every detention order confirmed under the original Act shall have effect as if confirmed under its provisions.
" If this were to be read literally it would lead to an absurdity, for if the order is actually confirmed under the original unamended Act it would be pointless to introduce a fiction and say that the order shall be deemed to be con firmed under that Act as unamended.
But even apart from a strictly technical construction, the language of the section is accurate because, as we 689 have said, the rule is that an amended Act must be read as if the words of amendment had been written into the Act except where that would lead to an inconsistency, and this would be one of those cases unless the words are construed in a sensible and commonsense way.
The draughtsman there fore had either to leave the words as they were, with an apparent inconsistency, or make his meaning clear by adding the words he did.
But we do not think the addition made any difference to the result.
We now turn to the second half of section 3, that is to say, to the words following the semi co]on.
It is important to note here that this part is consequential on the first and merely explains the effect of the first half.
It is also relevant to note that it deals with four different kinds of orders, different, that is to say, in the form of the words used though in the end they all come to the same thing.
It deals with the following kinds of order: (1) an order in which the period of detention is not specified at all; in that event the detention would end at midnight on the night of the gist of March, 1952.
It is clear that in this context the words "the principal Act" cannot mean the Act expiring on the 1st of October, 1952, because it envisages an order made before the Act of 1952 was in being and so on the date of its making the order could only refer to the Act then in being; (2) an order in which the period is stated to be "for the duration of the principal Act", that is to say, till the 31st of March, 1952 , (3) an order in which the period is specified to be until the expiry of the principal Act, which again brings us back to the 31st of March, 1952, as the last day of deten tion; (4) an order in which the period is specified to be till the 31st of March, 1952.
In all these four cases the section says that the detention order shall "continue to remain in force, for so long as the principal Act is in force", that , is to say, till the 1st October, 1952.
690 That follows from the first part of the section because that is the meaning which the law directs shall be placed on these words unless the context otherwise directs and the context does not direct otherwise here.
This part of the section is only explanatory.
But we wish to found deeper than this.
It is the duty of Courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently.
Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.
See the speech of Lord Wens leydale in Grey vs Pearson (1) quoted with approval by the Privy Council in Narayana Swami vs Emperor (2); also Salmon vs Duncombe(3).
The rule is also set out in the text books: See Maxwell on the Interpretation of Statutes, 9th edition, page 236, and Craies on Statute Law, 5th edition, pages 89 to 93.
The meaning of section 3 is quite plain and only desperate hair splitting can reduce it to an absurdity.
Courts should not be astute to defeat the provisions of an Act whose meaning is, on the face of it, reasonably plain.
Of course, this does not mean that an Act, or any part of it, can be recast.
It must be possible to spell the meaning contended for out of the words actually used.
We hold that there is no difficulty of construction.
It was next argued that in any event the extended deten tion became a fresh detention (because of the Act of 1952) from the date the Act came into force, and reliance was placed upon the judgments of two of us, Mahajan and Das JJ.
in section Krishnan vs The State of Madras(4).
It is enough to say that was not the (1) r at 106.
(3) 11 App.
627 at 634.
(2) A.I.R. 1939 P.C. 47.
(4) ; at 635 and 640.
691 decision of the Court in that case, and further, that the two Judges who held it was a fresh detention nevertheless considered that a fresh order with its concomitant fresh grounds and a fresh reference to the Advisory Board were not required; therefore, either way the petitioner must fail.
Reference was made to the equality clause in article 14 of the Constitution but that argument is easily met because the classification which section 3 makes is reasonable.
In one class it places all those whose cases have already been considered by the Advisory Board and in the other those whose cases have yet to go before it; also the law is fair, or at any rate as fair as detention laws can be, despite this distinction because power is left to the appropriate Government to revoke or modify these orders, or any of them, at any time.
Substantially therefore there is no differenti ation.
Article 14 was considered at length in The Slate of West Bengal vs Anwar Ali Sarkar (1), and according to the law laid down there, the Court must be satisfied on two points before it can strike at a law on the ground of unlawful discrimination.
It must be satis fied (1) that the law in fact discriminates and (2) that such discrimination is not permissible on the principle of a rational classification made for the purposes of the legislation.
The argument here was that section a discriminated against those detenus whose cases had been referred to the Advisory Board and whose detention was confirmed, on the strength of its report, under section 11 (1) before the amending Act of 1952 was passed.
The reason given was that these detentions are automatically extended up to the 1st of October, 1952, by section 3 without further reference to an Advisory Board, whereas in other cases, that is to say, in the case of those who were detained before the amending Act but whose cases had not been referred at the date it came into force, and in the case of those detained after the (1)[1952] S.c.R.284 692 amending Act, the Advisory Board is called into play and individual attention is given to each case with the result that many of those detentions might not be for as long as six months.
They might, for example, be only for one month or two.
It was urged that this was discrimination of a kind which cannot be supported by any principle of permissible classification because classification into the above catego ries has no reasonable relation to the objects of the legis lation, such as security of the State, maintenance of public order and so forth.
We are unable to accept this line of reasoning.
To say that section.
3 automatically extends the detention of persons in the petitioner 's position to the 1st of October, 1952, and stops there, is only to make a partial statement of the effect of section 3 because the extension is subject to the power of the appropriate Government to revoke or modify it at any time.
In other words, the automatic con tinuation of the detention till the 1st of October is not absolute and irrevocable but is made dependent on the power of the appropriate Government to revoke or modify it at its discretion under section 13 of the Act.
The State may or may not continue the detention for the whole of the extended period.
In both classes of cases the duration the deten tion within the overall limit of the life of the Act is left to the discretion of the State.
The only difference is that in the one class of cases the discretion is exercised after the period has been extended by the amending Act, in the other the appropriate Government fixes the period itself in its discretion and can again at its discretion revoke or modify it.
In both cases, the substance of the law is that the period of detention is left to the discretion of the State, and so there is no substantial discrimination.
It was argued that however fair this may look on paper, in practice there will be grave discrimination because, as a matter of fact, the State will not apply its mind in the majority of cases like the petitioner 'section That is an argument we cannot accept and no material Was placed before us t0 justify such a conclusion, 693 We turn now to the next point.
It was contended that sec tion 3 offends the Constitution because article 22 (4) and (7) do not envisage the direct intervention of Parliament in a whole batch of cases.
The protection guaranteed is that there shall be individual attention and consideration to each separate case by some duly specified and constituted authority.
In our opinion, this is not accurate.
Article 22 (4) guarantees that there shall be no preven tive detention for more than three months unless the law authorising it makes provision for an Advisory Board and the Board after considering each individual case separately reports that there is in its opinion sufficient cause for such detention.
To that extent there must be individual consideration of each case, but once the report is made and is unfavourable to the detenu, then the detention can be for a longer period provided it does not exceed "the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7).
" Sub clause (b) of clause (7) empowers Parliament to prescribe "the maximum period for which any person may in any class or . . . of cases be detained under any law providing for preventive deten tion.
" Parliament is accordingly empowered to specify a class.
It has done so.
The class is all persons whose cases have already been considered by an Advisory Board.
It is empowered to prescribe a maximum period.
That also it has done.
The extended detention (that is to say, for more than three months) can then be "under any law providing for preventive detention.
" A law made by Parliament falls within these words.
Parliament is equally authorised to say who shall determine the period of detention, and as there is nothing in the Constitution to prevent it can itself exer cise the authority it is empowered to delegate to others.
Stress was laid on the words "any person" in subclause (b) of clause (7) and it was contended that this contem plates individual attention in each case.
But 694 if that is so, then it means that Parliament must itself direct the maximum period for each separate person falling within the class individually.
The words are, we think, reasonably plain and we hold that Parliament can prescribe the maximum for a class taken as a whole as it has done in section 3.
It was next argued that once the power given under clause (7) to fix a maximum period has been exercised the power exhausts itself and cannot be exercised again in respect of the same detention.
In our opinion, no such limitation is imposed upon Parliament by the Constitution.
Then it was said that section 3 stands on a footing different from section 12 of the amending Act of 1951 as it introduces the idea of potentially indefinite detention and accordingly is repugnant to the Constitution, and in any event is a fraud upon it.
In so far as this means that section a fixes no time limit, the contention is unsound because the section specifies the exact period of the deten tion, namely till the expiry of the Act of 1950, that is to say, till the 1st of October, 1952.
In so far as it means that Parliament is enabled to continue detentions indefi nitely by the expedient of periodic amendments in the Act of 1950, the answer is that Parliament has the power.
This was precisely the power exercised in the amending Act of 1951 and upheld by this Court in section Krishnan vs The State of Madras(1).
The present Act is no different from that in this respect.
So far, we have dealt with the facts in petition No. 86 of 1952.
The facts in the other three petitions naturally differ in their details but they all conform to the same general pattern so far as the points discussed above are concerned, so there is no need to discuss them individually.
We hold that section 3 of the amending Act of 1952 is intra vires and that the detentions are not bad on any of the grounds discussed above.
The rest of the points raised in each individual case are left open except for one point which (1) ; 695 arises in petition No. 155 of 1952.
That point is as fol lows.
The first ground of detention given to the petitioner in this case reads: "Being the President of Jamat of Agris you have used your position as such to increase your influence over the residents of Uran Peta, have created a band of obedient and trusted associates, have inflicted heavy fines on villagers in Uran Peta who have disregarded your wishes and have imposed on them boycott or excommunication in cases of their refusal to pay the fines.
" It was argued that at the very outset 'these allegations import nothing more than an exercise of functions such as the infliction of fines and excommunication which the peti tioner as head of the caste had authority to do.
They do not touch any of the matters covered by section 3 (1) (a) of the , under which the petitioner is detained.
For example, they do not touch the security of the State or the maintenance of public order or any of the other matters specified in section 3.
They are therefore irrelevant to the detention, and as it is impossible to say how far these irrelevant matters influenced the detention, the petitioner is entitled to release.
Reliance was placed upon certain observations of the Federal Court in Rex vs Basudev(1).
We think it unnecessary to examine this point because we do not think the ground is irrelevant nor do we agree that it means what the petitioner says.
In our opinion, the grounds of detention must be regarded as a whole and when that is done the relevance of the first ground becomes plain.
The gravamen of the charge against the petitioner is that he aimed at setting up a parallel government in the Uran Peta area and that in order to achieve that end he did various acts such as intimidating the workers in the salt pans with threats of murder, and his own workers with threats of death, unless they carried out his (1) at 651.
696 orders; and among the lesser instances given to illustrate the exercise of parallel governmental authority are the ones set out in the first ground, namely the infliction of fines with the sanction of excommunication and boycott to ensure their payment and due obedience to his orders.
This point has no force and is decided against the petitioner.
It will not be open to him to re agitate this afresh when his case is reheard on the remaining issues.
All the four cases will now be set down for hearing on the remaining points which arise in them.
As they do not involve constitutional issues they need not go before a Constitution Bench.
Agent for the petitioner in Petition No. 155: M.S.K. Sastri for P.G. Gokhale.
Agent for the respondents and Intervener:P. A. Mehta.
| During the pendency of a civil writ petition in the Allahabad High Court, one N moved an application under section 476, Code of criminal Procedure, for making a complaint under section 93, Indian Penal Code, against T. A single judge who was seized of the case rejected the application.
Thereupon N presented an appeal against the order of rejection of his application before the Supreme Court under section 476 B, Code of Criminal Procedure.
Held, that the appeal did not lie to the Supreme Court but that it lay to the Appellate Bench of the High Court.
The decrees of a single judge of the High Court exercising civil jurisdiction were ordinarily appealable to the High Court under cl.
1o of the Letters Patent of the Allahabad High Court read with cl. 13 of the U. P. High Courts (Amalgamation) Order, 1948, and as such the Court constituted by the single judge was a court subordinate to the Appellate Bench of the High Court within the meaning of section 195(3) of the Code.
M. section Sheriff vs The State of Madras, [1954] S.C.R. 1144, distinguished.
|
Civil Appeal No. 173 of 1969.
From the Judgment and order dated 2 4 1968 of the Allahabad High Court in First Appeal No. 5/62.
G. N. Dikshit and O. P. Rana for the Appellant.
H. K. Puri and Miss Madhu Mulchandani and V. K. Bahal for the Respondent.
The Judgment of A. C. Gupta and V. D. Tulzapurkar, JJ. was delivered by Gupta, J. E. section Venkataramish, J. gave a dissenting opinion.
GUPTA, J.
This appeal by certificate is from a judgment of the Allahabad High Court, Lucknow Bench, dismissing the suit instituted by the appellant, State of Uttar Pradesh, for recovery of a sum of Rs. 20,100 from the respondent.
The facts stated in the plaint on which the claim is based are these.
The annual 'excise auctions ' for the year ]951 52 for Faizabad district were held at Faizabad on February 22, 1951 "under the Excise Rules.
" The respondent offered the highest bid of Rs. 73,000 and Rs. 48,000 respectively as fees for two groups of country liquor shops but as he did not deposit l/6th of the aforesaid sum on conclusion of the sales as required under the Excise Rules, the two groups of shops had to be sold again on March 30, 1951.
The resale fetched respectively Rs. 65,700 and Rs. 35,200 for there two groups of country liquor shops.
According to the State of Uttar Pradesh it suffered a total loss of Rs. 20,100 which is the difference between what the respondent had offered and the sum for which the shops were later sold, and the respondent was liable to compensate 9 91SCI/80 728 the loss.
The suit was decreed by the trial court.
On appeal the High Court dismissed the suit on the view that there was no valid contract which could be enforced by the plaintiff as the requirements of Article 299(1) of the Constitution had not been complied with.
We are also of the view that the suit must be dismissed but for a slightly different reason; in our opinion there was no concluded contract between the parties, nor was there any statutory rule permitting recovery the deficiency on re sale from, the respondent.
The sale proclamation which is said to have contained the conditions of sale was not produced.
The Assistant Excise Commissioner (P.W. 1) in his testimony referred to rule 357 of the Excise Manual.
The relevant part of the rule is as follows: "The following conditions shall apply to all sales under the auction system, and will be inserted at the foot of the sale proclamation if such proclamation is issued by the Excise Commissioner: (1) The officer conducting the sales is not bound to accept the highest or any bid.
In any case when the highest or any bid is not proposed to be accepted, the next highest bid should also be reported to the Excise Commissioner.
(2) The final acceptance of any bid is subject to the sanction of the Excise Commissioner.
(3) Veery person bidding will be held to his bid, whether i it be the highest or not.
(4) . . . (5) A sum equal to one sixth of the annual fees shall be payable immediately on the conclusion of the sales for the day, and the balance by such instalments as are specified in the licence to be granted.
If default be made in the payment of the advance instalment, the shop on farm will be resold, and if the price finally bid at the re sale be less than that bid at the first sale, the difference will be recovered from the defaulter.
" I Section 77 of the U.P. Excise Act, 1910 states: "All rules made and notifications issued under the Act shall be published in the official gazette and shall have effect as if enacted in this Act from the date of such publication or from such other date as may be specified in that behalf." 729 The High Court found that the conditions mentioned in rule 357 had A never been published as required and they did not, therefore, have the force of law.
The High Court held that Part II of the Excise Manual which includes rule 357 contained provisions which where "commonly referred to as rules" but were not really statutory rules and that it was "a sort of book of guidance".
Before us it was claimed on behalf of the appellant that some of the conditions contained in rule 357 had been published in the official gazette, but the learned counsel for the appellant, State of Uttar Pradesh, was not in a position to dispute that at least the last part of the 5th condition providing that in case of default, if the price fetched at the re sale was less than the bid at the first sale the difference would be recovered from the defaulter, had not been published.
That being so it must be held that there was no law under which the respondent could be asked to make amends for the shortfall.
The question that remains to be answered is, even if there was no statutory provision, whether there was a concluded contract between the appellant and the respondent under which the respondent was liable to pay Rs. 20,100 which represents the difference between the highest bid at the first sale and the price fetched at the re sale.
The sale proclamation containing the conditions of sale has not been produced.
Assuming that the different clauses of rule 357 barring the last part of the 5th clause embody the conditions of sale, it is clear from the 2nd clause that in the absence of the final sanction of the Excise Commissioner, the bid cannot be said to have been finally accepted.
lt is not claimed by the appellant that the bid offered by the respondent was sanctioned by the Excise Commissioner.
There was thus no concluded contract between the parties to make the respondent liable for the alleged loss.
The point appears to have been decided by this Court in Union of India and another vs M/s. Bhimsen Walaiti Ram(1).
This was a case of an auction for the sale of licence for a country liquor shop in Delhi for the year 1949 50.
Clause 33 of the conditions of sale provided inter alia : "All final bids will be made subject to the confirmation by the Chief Commissioning who may reject any bid without assigning any reasons".
This condition is similar to clause 2 of rule 357 in the instant case.
Ramaswami J. speaking for the court in Bhimsen 's case observed: "It is, therefore, clear that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid.
730 When the bid is so withdrawn before the confirmation of the Chief Commissioner the bidder will not be liable for damages on accurate of any breach of contract or for the shortfall on the resale.
An acceptance of an offer may be either absolute or conditional.
If the acceptance is conditional the, offer can be withdrawn at any moment until absolute acceptance has taken place.
" The appeal is dismissed but in the circumstances of the case we make no order as to costs.
VENKATARAMIAH, J. I have had the advantage of perusing the judgment prepared by my learned brother, Gupta, J.
I regret my inability to agree with the conclusion reached by him.
Since some of the facts which are necessary for the purpose of this case have not been set out in the judgment of my learned brother, I have to mention them at this stage.
The excise auctions for the year 1951 52 were held on February 22, 1951 under the provisions of the U.P. Excise Act, 1910 (hereinafter referred to as 'the Act ').
The respondent offered the highest bid of Rs. 73,000 for the chowk group shops and of Rs. 48,000 for Rakabganj group shops.
At that auction, the shops in question were knocked down for the above mentioned amounts in favour of the respondent who affixed his signatures to the respective bid sheets in token of his acceptance and also in the register of Settlement Record.
The respondent, however, did not deposit 1/6th of the above mentioned amounts on the aforesaid date but took time for its deposit later on.
In spite of repeated reminders, the respondent did not pay the advance deposits in both the cases.
The excise authorities resold the excise privileges in question and on such resale, the chowk group shops fetched Rs. 65,700 and the Rakabganj group shops fetched Rs. 35,200.
Consequently, the State Government the appellant herein suffered a loss of Rs. 20,100.
As the respondent did not pay the said amount of Rs. 20,100, a suit was instituted by the appellant against him for recovery thereof before the Civil Judge, Faizabad.
In the course of his written statement, the respondent, after a general denial of the allegations in the plaint, raised among others the following additional pleas: "1.
There was no completed contract between the plaintiff and defendant.
Consequently there had been no breach and no cause of action for the suit.
The entire auction proceedings having been against the rules and instructions of the Government were illegal, void and ineffective.
731 3.
The plaintiff himself having accepted the prayer of the defendant to be relieved from the bid made by him and subsequently re auctioning the shops or the groups of shops to others was now estopped from fixing any civil liability on the defendant.
" Four contentions were urged on behalf of the respondent in the 1 trial court viz. (1) since the offers of the respondent had not been accepted, no valid contracts had come into existence; (2) as the respondent had withdrawn the offers before their acceptance, there could be no enforceable contracts in existence; (3) the contracts, if any, were unenforceable as then did not satisfy the conditions mentioned in Article 299 of the Constitution and (4) that even though the respondent had committed the breach of the agreements he was not liable to pay any damages as the excise authorities had not taken any steps to mitigate the loss by granting the excise licences in question to the second highest bidder in each case.
The trial court after rejecting the contentions of the respondent made a decree for Rs. 20,100 with costs.
Aggrieved by the decree of the trial court, the respondent filed an appeal before the High Court of Allahabad.
In the course of the appeal, the High Court formulated four points for its consideration as can be seen from the following extract from its judgment: "The points now requiring consideration are (1) whether there came into existence a contract, (2) whether by reason of non deposit of one sixth of the bid money there was a breach of the contract on the part of the appellant; (3) whether this breach entitled the respondent to re auction the shops and to recover the loss on re auction from the appellant; and (4) whether the deficit of Rs. 20,100 represents the legal loss recoverable from the appellant." Before the High Court in so far as the first point was concerned, the respondent 's contention was three fold (i) since the bids were not accompanied by l/6th of the bid amount, there were no completed proposals and, therefore, there could be no acceptance thereof so as to bring into existence a contract; (ii) as the Excise Commissioner had not accorded his approval, there was no acceptance of the proposal and (iii) as no agreements in writing had been executed by the person competent to do so under Article 299 of the Constitution, no contracts had come into existence.
The High Court rejected the first two contentions by holding that the failure to deposit l/6th of the bid amount did not make the proposals incomplete and that the absence of the approval or the Excise Commissioner which was in the nature of 732 power vested in him to reverse the acceptance of a bid by the officer holding the auction did not in any way exonerate the respondent from the liability if he was otherwise liable.
It, however, held that since the requirements of Article 299 of the Constitution had not been fulfilled, the respondent was not liable to pay any damages on the ground that he had committed a breach of contract.
On the second point which was formulated by the High Court for its consideration, it observed as follows: "Coming to the second point of controversy, to wit, whether by reasons of non deposit of one sixth of the bid money there was a breach of the contract on the part of the appellant, the answer must be in the affirmative for the simple reason that the deposit of the money was one of the conditions of the contract.
This condition, as has been shown above, follows both from the statutory provision and the admission of the appellant himself that there was this deposit to be made.
" On the third point viz. whether the breach committed by the respondent in each of the two cases entitled the State Government to re auction the shops and to recover the loss on such re auction from him the High Court held that the right to re auction had not been proved to be founded on either any statutory rule or on any express terms of the contract but the said right was the 'natural outcome of the breach of an accepted term of contract ', when the respondent failed to deposit the amounts in terms of the agreement.
It further held that when the respondent had failed to deposit the amounts in terms of the agreement on which the bids were given and accepted the State Government was under an obligation for minimising the loss arising from the breach of the contract to re auction the shops and in case of any loss arising therefrom, to recover the same from the respondent.
On the last point of controversy viz. the quantum of damages, the High Court held that the extent of loss suffered by the State Government on account of breach on the part of the respondent was in the order of Rs. 20,100.
The High Court, however, allowed the appeal and set aside the decree of the trial court on the ground that there were no valid contracts which satisfied the requirements of Article 299 of the Constitution.
Dissatisfied with the judgment of the High Court, the State Government has come up in appeal to this Court.
In the instant case, the only question which arises for consideration is whether the respondent is not liable to pay the damage even though 733 no contract in writing had been executed in accordance with Article A 299 of the Constitution.
It was not the case of the respondent that the excise authorities had no right to re sell the excise licences.
after he had committed default in depositing l/6th of the bid amounts.
His principal pleas were (i) that there were no completed contracts between the State Government and himself and consequently there could be no breach of contract; (ii) that the entire auction proceedings, having been against the rules and instructions of the Government were illegal and void and (iii) that the State Government, having accepted his prayer to be relieved from the bids made by him and subsequently re auctioning the groups of shops to others was estopped from fixing any civil liability on him.
It is seen from what is stated above that no attempt was made; by the respondent to make good his plea regarding the legality of the auction proceedings and the plea of estoppel.
The only plea raised in the written statement which ultimately appealed to the High Court was that the respondent was not liable to pay any damages as there were no completed contracts which satisfied the requirements of Article 299 of the Constitution.
The other plea that the offers made by the respondent had not been approved be the Excise Commissioner was rejected by the High Court by observing that the power of the Excise Commissioner to accord his approval was only a power which had been vested in him to set aside the acceptance of the bid by the officer holding the auction.
Having regard to the pleadings and the evidence in this case, it has to be assumed that the respondent knew that he was under an obligation to deposit with the officer holding the auction l/6th of the bid amounts and that if he committed any default in doing so, the excise licences in question were to be resold and that he would be liable to pay any loss suffered by the State Government on such resale.
The contention that in the absence of the approval of the Excise Commissioner, he would not be liable to make good the loss has Loss to be rejected in view of condition No. 5 which according to the testimony of the Assistant Excise Commissioner (P.W. 1), which cannot be rejected, had been mentioned in the sale proclamation, which read thus: "5.
A sum equal to one sixth of the annual fees shall be payable immediately on the conclusion of the sale for the day, and the balance by such instalments as are specified in the licence to be granted.
If default be made in the payment of the advance instalment, the shop on farm will he resold, and if the price finally bid at the resale be less than that bid at the first sale, the difference will be recovered from the defaulter.
" 734 It is no doubt true that in Union of India & ors.
vs M/s. Bhimsen Walaiti Ram,( ') this Court held that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid had been provisionally accept ed was entitled to withdraw his bid and that when the bid was so withdrawn before the confirmation of the Chief Commissioner, the bidder was not liable for damages on account of any breach of contract or for the shortfall on the resale.
Those observations were made by this Court in that case in the context of the disapproval of the bid by the Chief Commissioner and this is borne out by the following observations of this Court at page 598: "It is not disputed that the Chief Commissioner had disapproved the bid offered by the respondent.
If the Chief Commissioner had granted sanction under cl. 33 of exhibit D 23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale.
As the essential pre requisites of a completed sale are missing in this case there is no liability imposed on the respondent for payment of the deficiency in the price.
" In the case before us there was no disapproval of the Excise Com missioner of the bids offered by the respondent.
On the other hand, the excise authorities requested the respondent to perform his part of the obligation under the sale proclamation.
It is also further been that this Court in the case of M/s. Bhimsen Walaiti Ram (supra) proceeded on the basis that the liability of the bidder could arise only as a consequence of the breach of a completed contract.
No attention appears to have been given in that case to the question whether the act of the offering of the highest bid which was accepted by the officer holding the auction and which resulted in the closure of the auction could by itself become a source of liability when the highest bidder failed to comply with the conditions stipulated in the sale proclamation.
It is necessary to refer briefly to some of the relevant provisions of law governing the disposal of the excise licence by auction system which were in force during the relevant time.
Section 21 of the Act prohibits sale of any intoxicant without a licence by the concerned excise authority.
Section 24 of the Act authorities the grant of exclusive privilege of selling by wholesale or by retail any intoxicant within any specified local area.
The right to sell any excisable article under a licence issued by the excise authority can be acquired only by paying 735 such fees or amount which may be equivalent to the highest bid offered at an auction when an auction is held.
Section 39 of the Act which deals with the recovery of excise revenue reads as follows: "39.
Recovery of excise revenue All excise revenue, including all amounts due to the Government by any person on account of any contract relating to the excise revenue, may be recovered from the person primarily liable to pay the same, or from his surety (if any) as an arrears of land revenue or in the manner provided for the recovery of public demands by any law for the time being in force.
In case of default made by a holder of a licence the Collector may take the grant for which the licence has been given under management at the risk of the defaulter, or may declare the grant forfeited and resell it at the risk and loss of the defaulter.
When a grant is under management under this section, the Collector may recover as excise revenue any moneys due to the defaulter by any lessee or assignee: Provided that no licence for an exclusive privilege granted under section 24 shall be forfeited or re sold without the sanction of the authority granting the licence.
" In the above section, the words "all excise revenue, including all amounts due to the Government by any person on account of any contract relating to the excise revenue, may be recovered from the person primarily liable to pay the same" show that the Government is entitled to recover from a person any amount due by him on account of any contract relating to the excise revenue.
The words "on account of any contract relating to the excise revenue" include within their scope not merely any compensation which a person may be liable to pay on account of the breach of a contract committed by him after the contract is completed but also any other amount that may become flue on account of a contract which would come into existence if all formalities are completed having regard to the scheme and manner in which the excise privilege is disposed of by the excise authorities.
The relevant rules governing the conduct of excise sales are found in a notification bearing No. B. O. No. 423/V 284 B dated September 26, 1910.
The rules require the publication of a sale proclamation announcing the dates of sale and the place where it will be held.
Before the sales for the day commence, the general conditions governing the sale which are set out in paragraph 373 of the U.P. Excise Manual (Vol.
I) shall be read out and explained to all present so that the competitors may clearly understand the conditions on which they bid.
The general conditions governing retail vend and the special 736 conditions governing each class of licence shall also be read out in public before the sales to which they apply.
Information should be freely given on all matters affecting the value of licence about to be sold.
The officer conducting the sales shall record the name of each person making a bid and the amount of bid.
Signature of the highest bidder and the next two lower bidders shall also be taken on the bid sheet, whether such persons have been accepted as auction purchasers or not.
At the time of the sale the person accepted as the auction purchaser shall be required to sign his name or affix his mark against the relevant entry of the licence in the Record G 14, it being explained at the time that the deposit paid in advance will be returned in the event of the licence being subsequently refused.
The final bid accepted shall invariably be recorded with his own hand by the officer conducting the sales.
The treasurer of the district, or one of his recognised assistants, shall be required to attend the sales to receive the advance fees paid by bidders provisionally accepted.
The amount that has to be paid as advance deposit is a sum equivalent to l/6th of the annual fees which shall be payable immediately on the conclusion of the sales.
for the day, and the balance by such instalments as are specified in the licence to be granted.
If default be made in the payment of the advance instalments, the shop or farm will be resold.
If the price finally offered at the resale be less than that at the first sale, the difference will be recovered from the defaulter through a civil suit If any person whose bid has been accepted at auction fails to make the advance deposit or if he withdraws from his bid, the excise authority may sell the contract immediately or on any subsequent date fixed by him.
It is not the case of the respondent in the instant case that he was not aware of the above conditions, which had been set out in the sale proclamation and also which must have been read out at the commencement of the sale, as required by the rules for the information of the intending purchasers.
The question for consideration is whether having offered the highest bid, it was open to the respondent to avoid the liability arising from his act of offering the highest bid merely because the Excise Commissioner who had the power to refuse to sanction the sale had not sanctioned it.
It is no doubt true that one of the conditions of the auction was that the acceptance of any bid by the officer conducting the sale was subject to the sanction of the Excise Commissioner.
It, however, did not mean that the acceptance of the bid would be complete only after the sanction was accorded by the Excise Commissioner because of the other conditions which read as under: "1.
The officer conducting the sales is not bound to accept the highest or any bid.
737 2.
The final acceptance of any bid is subject to the section of the Excise Commissioner.
" A reading of the two clauses referred to above shows that the officer holding the sale was empowered to accept the bid and that his acceptance was only subject to the sanction of the Excise Commissioner.
They meant that the power which had been reserved to the Excise Commissioner only enabled him to set aside the acceptance already made by the officer conducting the sale.
If it was not so set aside by him, the acceptance of the officer conducting the sale would be effective.
As mentioned earlier, in this case, the Excise Commissioner had not refused to sanction the acceptance of the highest bids offered by the respondent.
The liability of the highest bidder to deposit a sum equivalent to l/6th of the bid offered by him arises as a consequence of his offering the highest bid with the knowledge of the conditions referred to above immediately on the conclusion of the sale for the day in his favour and if he does not make such deposit, the officer holding the sale is entitled to put up the excise privilege for resale either immediately or on a subsequent day with liberty to recover from the defaulter any loss that may be occasioned to the Government on such resale.
In a case like this, no question of waiting till the contract either being completed on a formal document coming into existence in accordance with Article 299 of the Constitution can arise.
The completion of the contract or the execution of a contract in accordance with Article 299 of the Constitution arises only after the highest bidder has deposited l/6th of the bid offered by him on the conclusion of the sale which is a condition precedent for the completion of the contract or for execution of a formal document in accordance with Article 29 of the Constitution.
It is not, therefore, correct to determine the liability of a defaulting bidder on the basis of a completed contract or a formal document to be executed under Article 299.
If the contention urged on behalf of the respondent is accepted, it will make every public auction held by a Government a mockery.
A man without a pie in his pocket may offer the highest bid at an auction thus scaring away other bona fide bidders who have assembled at the auction to offer their bids and then claim that he is not liable to pay any damages only because a completed contract or an agreement in writing in accordance with Article 299 of the Constitution has not come into existence.
We should remember that, in the interest of public revenue excise privileges, privileges of cutting and removing timber from Government forests, occupancy rights over Government lands and building sites etc.
are disposed of in public auction by the Central Government, State Governments, statutory boards and local authorities and in almost every such auction, there is invariably a condition that the acceptance 738 of the highest bid at the auction is subject to the sanction of some superior officer or a statutory authority or the appropriate Government.
If the contention urged on behalf of the respondent is accepted then a person who offers the highest bid in any such auction can always absolve himself of all his liability flowing from his act of offering the highest bid by writing a letter immediately after the conclusion of sale to the concerned authority expressing his intention to withdraw from the bid or by resiling from it in any other manner.
The result will be that on the one hand the other bona fide bidders who have come to offer the bids would not be entitled to claim the privilege or property that is put up for sale and on the other the defaulting bidder would also be not liable to carry out his obligation flowing from his act or offering the highest bid.
If the liability of such a bidder is to be founded only on the basis of a completed contract then in the case of auctions held by or on behalf of the Central or State Governments, no liability can arise even if such sanction is accorded, unless it is followed up by a formal document executed under Article 299 of the Constitution which alone amounts to a completed contract where Government is a party.
Judged from the foregoing, I am of the view that the acceptance of the conclusion reached by my learned brother would lead to enormous public prejudice and instead of advancing the cause of justice would hamper it.
This case is an illustration of what prejudice is likely to be caused to the public revenue when default is committed by the highest bidder.
The documents produced before the Court in the present case show that the second highest bid in the case of chowk group shops offered by some other bidder was Rs. 72,500 and in the case of Rakabganj group shops was Rs. 47,000.
If the respondent had not offered his bids Government could have realised Rs. 1,19,50 from both the groups i.e. Only Rs. 1,500 less than what the respondent offered.
By the intervention of the respondent 's bids and the default committed by him, the.
Government could realise on resale only Rs. 1,00,900 thus resulting in a loss of Rs. 20,100.
Can it be said that in such a case where legal injury is sustained, there is no remedy available to the State Government ? In a somewhat similar but not identical situation, this Court in A. Damodaran & Anr.
vs State of Kerala Ors was called upon to decide whether the highest bidder at an excise auction was liable to be proceeded with for recovery of excise dues in the absence of an agreement executed in .
accordance with Article 299.
In that case, the appellants offered the highest bid at the auction sales held in respect of some toddy shops.
The conditions of the sales, notified in pursu 739 ance of the statutory provisions were: (1) that it was incumbent upon the bidder to pay immediately 10% of the amount due, (.2) that the successful bidder had to deposit 30% of the amount payable on demand by the Assistant Commissioner and to execute agreements before getting the necessary licences and (3) that if The contract could not be executed, the whole amount was to be forfeited and the shop itself was to be resold.
The appellants deposited the necessary amount on demand and were allowed to start business even before agreements were executed or licences were issued.
But the appellants failed to pay the balance due to the State.
The amounts were sought to be recovered under section 28 of the Kerala Abkari Act (Act No. l of 1967) which was more or less similar to section 39 of the Act.
The High Court of Kerala held that the amounts were recoverable from the appellants.
In the appeal before this Court, the appellants contended that as no agreement was executed between the appellants and the Government in the manner prescribed by Article 299 of the Constitution, they had not become the 'grantees ' of any privilege and hence were not liable to pay the amounts sought to be recovered.
Dismissing The appeal, the Court held that the absence of an agreement executed in accordance with the provisions of Article 299 of the Constitution could not be a bar for recovering the excise dues in view of section 28 of the Kerala Act.
The Court held that the liability was one which arose under the statute and therefore was enforceable.
In taking that view, this Court observed at pages 782 783 thus: "The appellants submit that they had not become "grantee" of any privilege without the execution of con tracts complying with the requirements of Article 299 of the Constitution.
The learned Judge of the Kerala High Court relied on Madhavan vs Assistant Excise Commissioner, Palghat (I.L.R. (1969) 2 Kerala 71), affirmed by a Division Bench in Damodaran vs State of Kerala (1969) Kerala Law Times 587.
It appears that, although the Division Bench did 'not specifically consider whether a bidder at an auction of the kind before us was the "grantee" of a privilege within the meaning of section 26 of the Act, yet, it held that the liability to satisfy the dues arising out of a bid was enforce able under section 28 of the Act quite apart from any contractual liability.
Reference was also made, in this connection, to the decision of this Court in Union of India vs A. L. Ralia Ram (A.I.R. 1963 S.C. 1685), for contending that the absence of formal contract is not fatal in all cases so as to make the whole transaction null and void ab initio.
740 Statutory duties and liabilities may be enforced in accordance with statutory provisions.
Equitable obligation may also arise and been forced by decrees of Courts quite apart from the requirements of article 299 of the Constitution.
Mulamchand vs State of Madhya Pradesh affords an instance where on a claim for compensation or restitution under section 70 of the Contract Act, this Court relied upon the principle stated in Nelson vs Harbolt (1948) 1 K.B. 30 as follows at p. 222: "It is no longer appropriate to draw a distinction between law and equity.
Principles have not to be stated in the light of their combined effect.
Nor is it necessary to canvass the. niceties of the old forms of action.
Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework.
The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the Court orders restitution if the justice of the case so requires.
" In the case before us, we are concerned with the legality of proceedings under section 28 quoted above of the Act.
It is evident that these proceedings can be taken in respect of "all amounts due to the Government by any grantee of a privilege or by any farmer under this Act or by any person an account of any contract relating to the Abkari Revenue.
It is clear that dues may also be "recovered from the person primarily liable to pay the same or from his surety (if any) ".
It is not a condition precedent to recovery of an amount due and recoverable that it should be due under a formally drawn up and executed contract." In reaching the above conclusion, this Court approved the observation made by Mathew, J. in Madhavan vs Assistant Excise Commissioner, Palghat which ran as follows: "It was contended on behalf of the petitioners in some of these cases that no agreements were executed by them, and therefore, the Government are not entitled to recover any amount by way of rental.
Reliance was placed upon the decisions of the Supreme Court in H. P. Chowdhry vs State of M.P. (AIR and Mulamchand vs State of M.P. (1969(II) S.C.W.R. 397), for the proposition that unless there is an agreement executed in accordance 741 with the provisions of Article 299 of the Constitution, the petitioners in the case where no agreements have been executed, would not be liable to pay rental.
The argument was that the liability to pay rental arises only out of the agreement, and if there is no agreement, then there is no liability to be enforced As I have indicated the liability to pay the renal arises not only by virtue of the agreement but also by the provisions of section 28 of the Act.
The decision of the Supreme Court in H. P. Chowdhry vs State of M.P. would make it clear that if there are provisions in the Act, the liability to pay the rental can be enforced.
I think that even if no agreement has been executed, there was the liability under section 28 of the Act, and that the liability would be enforced under the provisions of the Revenue Recovery Act.
(See Sections 6 and 62 of the T.C. Act) ".
Chandrashekhar, J. (as he then was) has also taken more or less the same view in State of Mysore vs Dasappa Naidu.
In that case, the plaintiff who was a licensee for sale of ganja had executed a counterpart agreement as required by section 25 of the Mysore Excise Act but no formal deed was executed by both the plaintiff and the State Government as required by Article 299 of the Constitution.
When the period of contract expired, rental for four months was in arrears.
When the Government sought to bring the licensee 's properties to sale for recovery of the arrears, the plaintiff executed a mortgage in favour of the State to secure payment of the arrears undertaking to pay the arrears in monthly instalments.
As he defaulted in payment of the instalments, the Assistant Commissioner issued a sale proclamation for sale of the mortgaged properties.
In the suit he questioned the said sale proceeding on the ground that the counterpart of the agreement and the mortgage deed executed by him were void for nonfulfillment of the requirements of Article ', 299 of the Constitution.
The learned Judge held that the absence of a document conforming to Article 299 was not a bar in view of the statutory provisions contained in the Mysore Excise Act.
The Rajanagaram Village Co operative Society by its Secretary, .
Parthasarathi Pillai vs P. Veerasami Mudaly was a reverse case and the facts involved in it were these: The defendant Co operative Society put up a property belonging to it for sale at a public auction.
H 742 The auction was held by a sale officer.
One of the conditions of the auction sale was that the sale would be knocked down in favour of the highest bidder subject to the approval of the defendant Co operative Society and the Chittoor District Bank.
The plaintiff was the highest bidder at the auction and the sale was knocked down in his favour by the sale officer.
He deposited on the date of the sale with the sale officer the amount which he had to deposit under the conditions of the sale and also deposited the balance with t the defendant within the stipulated period.
The Chittoor District Bank took up the matter for consideration at its meeting held on a date subsequent to the date of the sale and approved the sale.
This resolution was, however, not communicated to the plaintiff and no sale deed was executed in favour of him.
The plaintiff by his notice called upon the defendant to execute a conveyance in his favour.
There upon the Bank cancelled its previous resolution and directed a re sale of the property.
The plaintiff thereafter instituted a suit for enforcing the sale on the basis that there was a concluded contract in his favour which was denied by the defendant in the written statement.
The main contention urged on behalf of the defendant was that the contract did not become final and complete as the approval of the Chittoor District Bank was not communicated to the plaintiff.
Under section 4 of the Contract Act, it was claimed, that even the approval should have been communicated like acceptance as according to the contention of the defendant that constituted a final acceptance of the contract.
The trial court accepted the contention of the defendant and dismissed the suit.
The first appellate court reversed the decision of the trial court and granted a decree for specific performance of the contract in favour of the plaintiff.
While affirming the Judgment of the first appellate court, the High Court observed in the above decision as follows: "The defendant appointed a sale officer who, under the terms of E. D. I was authorised to knock down in favour ' of the highest bidder the property subject of course to the approval of Mahasabha and the Chittoor District Central Bank.
No point was raised in the courts below, and indeed it could not be raised before me, that this sale officer had no authority to accept any bid on behalf of the defendant.
Further there was also no plea any where that there was no approval of the sale by the Mahasabha, that is the defendant.
The defendant should have known if there was no such approval and should have put that matter in the forefront of the case if really there is any substance in that contention 743 in the second appeal.
The matter, therefore, for consideration is whether the sale officer, in knocking down the bid subject to the approval of the Bank, had or had not accepted the offer of the plaintiff subject to the condition of approval.
Ever since the well known decision of payne vs Cave; , 100 E.R. 502, it has been established that the position of an auctioneer is that of an agent of the vendor and that until the bid is knocked down, there is no concluded contract in favour of the bidder and the bidder was at liberty to withdraw his offer before it was accepted.
To a similar effect is also the decision Cook vs oxley; , If there.
no further condition of an approval or confirmation, ordinarily if the bid is knocked down, the acceptance is communicated by the acceptance of the bid in the presence of the bidder and no further communication would be necessary.
If, however, the acceptance was conditional, the condition being that it is subject to the approval or confirmation by some other person, what is the position ? The acceptance in such circumstances, in my opinion, is conditional acceptance and that has to be communicated.
Nobody suggests that in order to make the contract enforceable, it is not necessary to have the approval of the person indicated in the conditions of the auction sale.
The question is whether the approval also in such circumstances, should be communicated to the bidder in order to conclude the contract.
In my opinion, the acceptance contemplated may be absolute or may be conditional and when once that conditional acceptance is communicated, there is no need or necessity for a further communication of the fulfillment of the condition when the acceptance is a conditional acceptance.
The communication of the acceptance twice is not needed".
The correctness of this decision is doubted elsewhere.
It is not necessary in this case to decide whether the view expressed by the High Court of Madras in the above case is correct or not for the situation in the instant case is anterior to the situation which obtained in the said case.
The officer who held the same in the present case had the power to accept the bids though it was subject to sanction by the Excise Commissioner.
The respondent who offered the bids after conclusion of the sale failed to make the initial deposit and thereby drove the Department to hold the resale.
It was high conduct which ultimately resulted in the loss suffered by the Department.
10 91SCI/80 744 The decision of this Court in K. P. Chowdhary vs State of Madhya Pradesh & Ors is not of much assistance to the respondent in this case, since in that case the officer who held the sale was not competent to accept the bids of the appellant therein as the bids offered were higher than what he could accept.
The appellant therein resiled from the offer made by him by raising a dispute as to the marking of the trees even before the Chief Conservator of Forests who was competent to accept the bids could accept them.
This Court no doubt upheld the plea of the appellant therein as there was no acceptance of the bid by the competent officer.
This case is one falling in the category of cases where the sale officer has no power to accept the bid and not one falling under the category of cases involving a conditional acceptance as observed in the case of the Rajanagaram Village Co operative Society by its Secretary, Parthasarati Pillai (supra).
It is not the case of the respondent in this appeal that the officer who held the excise auction was not competent to accept the bids.
It is further seen that the question whether the appellant in the above case was liable in any other manner also was not considered in that decision.
Hence no reliance can be placed on the above decision.
The respondent by his own conduct in not depositing the 1/6th of the bids offered by him made it impassible, for the excise authorities to conclude the contract.
The question may have been different if the respondent had done all that he had to do under the conditions of the auction but the excise authorities had not intimated him that he could exploit the excise privileges in accordance with law.
The documents produced before the Court show that on February 24, 1951, the Deputy Commissioner, Faizabad wrote a letter (Exh.
S) 11 ' calling upon the respondent to make the initial deposit which he had to make at the conclusion of the sale at the fall of the hammer on the date of the sale within three days of the receipt of that letter and intimating that in the absence of compliance with the said demand, the shops would be re auctioned and the amount of deficiency resulting on such re auction would be recovered from him.
That letter was received by the respondent on March 8, 1951.
As the respondent did not comply with the demand, the excise authority concerned decided to conduct a resale of the excise privileges on March 21, 1951, and also to prosecute the respondent for an offence punishable under section 185 of the Indian Penal Code.
Thereafter the respondent gave a representation (Exh. 7) on March 30, 1951 stating that I any action other than prosecuting him may be taken.
He stated in that representation that his sole object in offering the bids was to 745 help the Government and to help himself but when he calculated whether he would make any profit he felt that he would not do so.
According to the said representation, that was the reason for not depositing 1/6th of the bid amount at the fall of the hammer.
He, however, did not question the authority of the excise authorities to put up the excise privileges for resale and to claim the loss occasioned by such resale from him.
In these circumstances I am of the view that it is not possible to hold that the respondent was not in law liable for the claim made by the State Government even though no contracts were formally entered into between the respondent and the State Government.
The liability of the respondent in the instant case arises under the statute and it also arises as the result of a civil wrong or a tort committed by him, in offering the highest bid with open eyes and in not fulfilling the obligations arising therefrom.
The latter source of liability in this case may appear to be novel but if justice requires, the Court should not hesitate to impose it on the person who has committed the wrong and secure justice for the innocent injured party.
The following observation of Denning L.J. (as he then was) in Candler vs Crane, Chrismas & Co.(1) at page 178, though in minority, are apposite: "This argument about the novelty of the action does not appeal to me in the least.
It has been put forward in all the great cases which have been milestones of progress in our law, and it has always, or nearly always, been rejected.
If you read the great cases of Ashby vs White ; , Pasley vs Freeman (1789) 3 Term Rep. 51 and Donoghue vs Stevenson (1932) A.C. 562, you will find that in each of them the judges were divided in opinion.
On the one side there were the timorous souls who were fearful of allowing a new cause of action.
On the other side, there were the bold spirits who were ready to allow it if justice so required.
It was fortunate for the common law that the progressive view prevailed.
" Considering the facts and circumstances of the instant case, I am of the view that the respondent should be made liable for the sum claimed in the suit and the decree made by the trial court should be restored.
ORDER In view of the majority judgment, the appeal is dismissed with no order as to costs.
| The respondent who was a bidder at the annual excise auction offered the highest bid for two groups of country liquor shops, and which were knocked down in his favour.
He affixed his signature to the respective bid sheets in token of his acceptance and also in the register of Settlement Record.
He, however, did not deposit l/6th of the bid amounts on conclusion of the sales as required under the Excise Rules but took time for deposit.
In spite of repeated reminders he did not pay the advance deposits.
The Excise Authorities resold the excise privileges in respect of the two groups of shops and in the re auction the shops fetched a lesser amount than what the respondent had offered.
The State Government, appellant directed the respondent to make good the loss.
Since he failed, a suit for recovery was instituted by the appellant.
The suit was contested, the respondent pleading (1) that there were no completed contracts between the State Government and himself and consequently there could be no breach of contracts; (2) that the entire auction proceedings, having been against the rules and instructions of the Government were illegal and void; (3) the contracts, if any, were unenforceable as they did not satisfy the conditions mentioned in Article 299 of the Constitution; and (4) that the State Government having accepted his prayer to be relieved from the bids made by him and subsequently re auctioning the groups of shops to others was estopped from fixing any civil liability on him.
The trial court decreed the suit.
On appeal, the High Court dismissed the suit on the view that there was no valid contract which could be enforced by the appellant as the requirements of Article 299(1) of the Constitution had not been complied with.
It, however, held that the failure to deposit 1/6 of the bid amount did not make the proposal incomplete and that the absence of the approval of the Excise Commissioner which was in the nature of a power vested in him to reverse the acceptance of a bid made by the officer holding the auction did not in any way exonerate the respondent from the liability if he was otherwise liable.
In the appeal to this Court on the question whether the respondent would not be liable to make good the loss even though no contract in writing had been executed in accordance with Article 299 of the Constitution.
725 ^ HELD :[Per Gupta and Tulzapurkar, JJ.] 1.
The suit must be dismissed as there was no concluded contract between the parties, nor was there any statutory rule permitting recovery of the deficiency on re sale from the respondent.
[728 B] 2.
The last part of 5th clause to Rule 357 providing that in case of default, if the price fetched at the re sale was less tan the bid at the first sale the defaulter had not been published.
[729 C] 3.
Assuming that different clauses of Rule 357 barring the last part of the 5th clause embody the condition of sale, it is clear from the 2nd clause that in the absence of the final sanction of the Excise Commissioner the bid cannot be said to have been finally accepted.
In the instant case it is not claimed that the bid offered by the respondent was sanctioned by the Excise Commissioner.
[729 E] There was thus no concluded contract between the parties to make the respondent liable for the alleged loss.
[729 E] Union of India and others vs M/s. Bhimsen Walaiti Ram ; referred to.
(Per Venkataramiah J. dissenting) 1.
The respondent should be made liable for the sum claimed in the suit and the decree made by the trial court should be restored.
[745 G] 2.
The respondent was liable for the sum claimed made by the State Government even though no contracts were formally entered into between the respondent and the State Government,[745 B] In the instant case on the pleading and evidence it has to be assumed that the respondent knew that he was under an obligation to deposit with the officer holding the auction 1/6th of the bid amount and that if he committed any default in doing so, the excise licences in question were to be resold and that he would be liable to pay any loss suffered by the Sate Government on such re sale.
[733 E] 3.
Condition No. 5 in the sale proclamation which provides that if the price at the re sale be less than that at the first sale, the difference will be recovered from the defaulter negatives the contention of the respondent that in the absence of the approval of the Excise Commissioner, he would bot be liable to make good the loss.
[73 H, F] 4.
There was no disapproval of the Excise Commissioner of the bids offered by the respondent.
On the other hand, the excise authorities requested the respondent to perform his part of the obligation under the sale proclamation.
[734 E] 5.
In Union of India & Ors.
vs M/s. Bhimsen Walaiti Ram, ; , this Court proceeded on the basis that the liability of the bidder could arise only as a consequence of the breach of a completed contract.
No attention appears to have been given in the case to the question whether the act of the offering of the highest bid which was accepted by the officer holding the auction and which resulted in the closure of the auction could by itself become a source of liability when the highest bidder failed to comply with the conditions stipulated in the sale proclamation.
In section 39, the words "all excise revenue, including all amounts due to the Government by any person on account of any contract relating to the excise revenue, may be recovered from the persons primarily liable to pay the same" by him on account of any contract relating to the excise revenue.
The words "on account relating to the excise revenue" include within their scope not merely any compensation which a person may be liable to pay on account of the breach of contract committed by him after the contract is completed but also any other amount that may become due on account of a contract which would come into existence if all the formalities are completed, having regard to the scheme and manner in which the excise privilege is disposed of by the excise authorities.
[735 E F] 7.
A reading of clauses 1 and 2 of Rule 357 of the Excise Manula show that the officer holding the sale was empowered to accept the bid and that his acceptance was only subject to the sanction of the Excise Commissioner.
They mean that the power which had been reserved to the Excise Commissioner, only enabled him to set aside the acceptance already made by the officer conducting the sale.
If it was not set aside by him, the acceptance of the officer conducting the sale would be effective.
[737 B] In the instant case the Excise Commissioner had not refused to sanction the acceptance of the highest bids offered by the respondent.
The liability of the highest bidder to deposit a sum equivalent to 1/6th of the bid offered by him arises as a consequence of his offering the highest bed with the knowledge of the conditions of the auction, immediately on the conclusion of the sale for the day in his favour and if he does not make such deposit, the officer holding the same is entitled to put the excise privilege for re sale either immediately of on a subsequent day with liberty to recover from the defaulter any loss that may be occasioned to the Government by such re sale.
[737 C D] 8.
The completion of the contract or the execution of a contract in accordance with Article 299 of the Constitution arises only after the highest bidder has deposited 1/6th of the bid offered by him on the conclusion of the sale which is a condition precedent for the completion of the contract or for execution of a formal document in accordance with Article 299 of the Constitution.
It is not, therefore, correct to determine the liability of a defaulting bidder on the basis of a completed contract or a formal document to be executed under Article 299.
[737 E F] 9.
In the interest of public revenuer, excise privileges, privileges of cutting and removing timber from Government forests, occupancy right over Government lands and building sites etc.
are disposed of in public auction by the Central Government, State Governments, statutory boards and local authorities and in almost every such auction, there is invariably boards a condition that the acceptance of the highest bid at the auction is subject to the sanction of some superior officer or statutory or the appropriate Government.
If the liability of such a bidder is to be funded only on the basis of a completed contract them in then in the case of auctions held by or on behalf of the Central or State Governments, no liability can arise even it such sanction is accorded, unless it is followed up by a formal document executed under Article 299 of the Constitution which alone amounts to a completed contract where Government is a party.
[737 H 738 A, 738 D] 727 In the instant case the respondent by his own conduct in not depositing 1/6th A of the bids offered by him made it impossible for the excise authorities to conclude the contract. 'the question may have been different if the respondent had done all that he had to do under the condition of the auction but the excise authorities had not intimated him that he could exploit the excise privileges in accordance with law.
[744 E] 10.
The liability of the respondent arises under the statute and it also arises as the result of a civil wrong or a tort committed by him, in offering the highest bid with open eyes and in not fulfilling the obligations arising therefrom.
The latter source of liability may appear to be novel but if justice requires, the Court should not hesitate to impose it on the person who has committed the wrong to secure justice for the innocent injured party.
[745 Cl A. Damodaran & Anr.
vs State of Kerala & ors.
; ; Candlar vs Crane Christmas & Co. [1951] 2 K.B. 164 at p. 178 referred to.
K. P. Chowdhary vs Stare of Madhya Pradesh & Ors. ; distinguished.
|
Appeal No. 2127 of 1969.
Appeal by special leave from the judgment and order dated January 27, 1969 of the Orissa High Court in O.J.C. No. 280 of 1965.
H.R. Gokhale, Govind Das and G. section Chatterjee, for the appellant.
R.K. Garg, section C. Agarwala, and Sumitra Chakravarty for respondent No. 1.
The Judgment of the Court was delivered by Shelat, J.
Respondent 1 was, in 1955, admitted as a trade apprentice by the appellant company in ' its works, the company 345 agreeing to bear the cost of his training as such apprentice, which it did for a period of 3 years.
On completion of his training, he was appointed in September 1958 as a skilled workman, i.e., as a fitter.
The letter of appointment under which he was engaged contained a clause which required him to execute a bond to serve the company for five years at least.
The object of that clause evidently was to ensure that he served the company at least for five years in consideration of the company having borne the expenses.of his training.
The evidence produced before the Industrial Tribunal shows that the practice of the company, set up at the instance of the Government of India and the Company 's Board of Directors, was to have a confidential inquiry made to verify the antecedents of its employees. 'Such verification not being practicable at the time of the appointment of each employee, it used to be done after a workman was appointed.
The object of such verification was to ascertain whether it was desirable or not in the interests of the company to continue the service of the employee in respect of whom such verification was made.
The inquiry was made through the police.
On receipt of a verification report from the police, the Senior Security Officer of the company would make his recommendation and the company would terminate the service of an employee where it was considered desirable in the company 's interests not to continue such an employee in service after giving 3 months ' notice or salary for that period in lieu thereof.
Throughout the period of his service commencing from Sep tember ' 1958 no action was ever taken against respondent 1 although he had at one time joined a strike in the company '; works and although he was an active member and the secretary of the workmen 's union.
A criminal case in relation to the said strike was filed against him but had been subsequently withdrawn.
Prima facie, the fact that no action was taken against him indicated that the company did not consider his active participation in the union activities objectionable so as to warrant any interference on its part.
In accordance with the practice of the company, however, a verification report about him was called for as was done in the case of other workmen also.
On such a report from the police, the Senior Security Officer recommended that it was not desirable to retain him in the company 's service any longer.
Respondent I at the time was working as a fitter in the blast furnace of the works.
On December 9, 1960 he was served with an order by which his service was terminated and was informed that he would be entitled to 3 months ' pay in lieu of a notice for that period.
346 On the union of which, as aforesaid, he was the secretary, having raised a dispute, alleging that the termination of his service was the result of victimisation and unfair labour practice,, the dispute was referred by the Government of Orissa to the Industrial Tribunal.
After inquairy, the Tribunal rejected the union 's allegation as to victimisation or unfair labour practice on account of any union activities carried on by respondent 1.
Nevertheless, the Tribunal held that it was improper on the part of the company not to have disclosed the said report to respondent 1 and not to have given him an opportunity to contest its contents and vindicate himself.
The Tribunal held that though the said order was in form one of termination of service, it was in fact punitive in nature and considering the action taken against respondent I as disproportionate further held that it was a case of victimisation, that consequently the, order was illegal and unjustified and directed reinstatement with full 'back wages.
The company filed a writ petition in the High Court for quashing the said order.
Before the High Court the company urged (a) that the termination of the service of respondent 1 was in bona fide exercise of the employer 's right to do so, (b) that it did so only because of the said adverse report and (c) that even if it was held that the said order was not legal or justified, the proper relief to be granted to the respondent in the circumstances of.
the case was compensation and not reinstatement, which meant imposition of a workman against whom there was an adverse report and whom the company did not consider it desirable to retain in its service.
The High Court rejected these contentions and held that the Tribunal was right in holding that the termination of service of respondent I was not in bona fide exercise of the power of the employer to terminate an employee 's service, that it was punitive in character and was, therefore, not legal or justified.
The High Court also held that ordinarily the relief against an illegal termina tion of service was reinstatement though in some cases it may be considered inexpedient to do so, in which event a suitable compensation would be the proper relief.
Lastly, it held that the present case was not one of those exceptions to the general rule of reinstatement and the Tribunal having exercised its discretion it could not interfere with the Tribunal 's order.
The company thereupon applied for special leave from this Court.
Though it was granted, it was limited only to the question whether the relief to respondent I should have been reinstatement or compensation.
It is, therefore, not possible for us to go into the question whether the Tribunal and the High Court were right in their conclusion that the termination of the service of respondent I was not in bona fide exercise of the company 's right to order discharge simpliciter or whether the order was punitive in 347 nature and therefore was not legal in the absence of any domestic inquiry having been held.
Besides, this appeal is one against the High Court 's order refusing certiorari under its writ jurisdiction and not a direct appeal under article 136 of the Constitution against the Tribunal 's order.
These considerations will have to be kept in mind while we are considering this appeal.
Counsel for the appellant company argued that even though he could not challenge, in view of the limited special leave granted to the company, the finding that the impugned order was not termination simpliciter in bona fide exercise of the employer 's right to terminate the service of an employee, he was entitled to agitate the question whether or not the High Court, on the facts of this case, should have interfered and ordered compensation in place of reinstatement, particularly because : (a) the concerned employee was posted in the blast furnace, a crucial part of the company 's works, in respect of which the company could not hazard any risk, (b) the Tribunal had given a clear and firm finding against the case that the workman had been victimised on account of his union activities, and (c) the Tribunal and the High Court had both set aside the company 's order only because of their finding that it was punitive in nature and that the punishment was so disproportionate, that it amounted to victimisation.
The proper order, counsel submitted,) was to award compensation instead of imposing the service of an employee whom the company considered risky to retain in its service.
Mr. Garg, on the other hand, argued that the company 's action involved an important principle, in that, an employer cannot be allowed to terminate the services of his employees on police reports which are not disclosed to the workmen or before the Tribunal, and therefore, are not open to the workmen to challenge.
Such a course, he argued, would enable an employer to put an end to the service of a workman not because he is in fact a danger to the establishment but is merely a member of a party or an association whose views and policies such an employer does not like.
In such a case, he submitted, the termination of service would be in violation of the constitutional right of association of an individual and would be clearly unjustified, and therefore, it would not be a case for departure from the ordinary consequence flowing from an illegal order of termination of service.
There can be no doubt that the right of an employer to discharge or dismiss an employee is no longer absolute as it is subjected to severe restrictions.
In cases of both termination of service and dismissal, industrial adjudication is competent to grant relief, in the former case on the ground that the exercise of power was mala fide or colourable and in the latter case if it amounts to victimisation or unfair labour practice or is in violation 348 of the principles of natural justice or is, otherwise not legal or justified. ' In such cases, a tribunal can award by way of relief to the concerned employee either reinstatement or compensation.
In the earlier stages the question whether one or the other of the two reliefs should be granted was held to be a matter of discretion for the tribunal.
(see Western India Automobile Association vs Industrial Tribunal( '), United Commercial Bank Ltd. vs U.P. Bank Employees Union( ').
The view then was that to lay down a general rule of reinstatement being the remedy in such cases would itself fetter the discretion of the tribunal which has to act in the interests of industrial harmony .
and peace and that it might well be that in some cases imposition of the service of a workman on an unwilling employer might not be conducive to such harmony and peace.
Later on, however, the earlier flexibility appears to have been abandoned and it was ruled that although no hard and fast rule could be laid down and the Tribunal would have to consider each case on its own merits and attempt to reconcile the conflicting interests of the employer and the employee, the employee being entitled to security of service and protection Against wrongful dismissal, the normal rule in such cases should be reinstatement.
(sea Punjab National Bank Ltd. vs Workmen( ').
This conclusion was adhered to, in some of the subsequent decisions.
But in the case of Punjab National Bank Ltd.( ') itself, as also in other subsequent cases, the rule was qualified to mean that in unusual or exceptional cases where it is not expedient to grant the normal relief of rein statement, the proper relief would be compensation and that that would meet the ends of justice.
The problem confronting industrial adjudication is to promote its two objectives, the security of employment and protection against wrongful discharge or dismissal on the one hand and industrial peace and harmony on the other, both leading ultimately to the goal of maximum possible production.
As exceptions to the general rule of reinstatement, there have been cases where reinstatement has not been considered as either desirable or expedient.
These were the cases where there ad en strained relations between the employer and the employee, where the post held by the aggrieved employee had been one of trust and confidence or where though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of prejudicial to the interests of the industry.
These cases are to be found in Assam Oil Co. Ltd. vs Workmen (4 ) Workmen of Charottar Gramodhar Sahakari Mandali Ltd. vs Charottar Gramo (1) [19491 F.C.R. 321, 348.
(2) (19521 (3) (4) ; 349 dhar Sahakari Mandali Ltd.( '), Doomur Dulung Tea Estate vs Workmen (2 ) and Ruby General Insurance.
Co. Ltd. vs P. P. Chopra(3).
These are, however, illustrative cases where an exception was made to the general rule.
No hard and fast rule as to which circumstances would in a given case constitute, an exception to the general rule can possibly be laid down as: the Tribunal in each case, keeping the objectives of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice.
In the present case the facts are fairly clear.
As aforesaid, the concerned workman Was trained for a period of 3 years at the cost of the company.
On completion of his training the company engaged him as a skilled worker.
He worked as such from September 1958 to December 1960.
At the time of the termination of his service, he was working as a fitter in the blast furnace, a vital part of the company 's works, where both efficiency and trust would matter.
Even though he was said to have joined an illegal strike and a criminal case had been filed against him, no steps, even departmentally, were taken against him.
Prima facie, there fore, this was not a case where, the employer could be said to be anxious to wantonly or unreasonably terminate his service.
Even though he was an active member and the secretary of the union, the Tribunal found that the termination of his service was not due to victimisation or any unfair labour practice.
There can also be no dispute that the company ordered the termination of his service only because of the, adverse report of the police against him.
The report was called for 'by the company in accordance with its practice of verifying the workman 's antecedents.
The evidence was that such verification was made in the case of all workmen after they were engaged and that such verifi cation was not made before appointing them as it was not practicable to do so.
The practice was adopted at the instance of the Government and in accordance with the directions to that effect of the Board of Directors.
The letter of the Deputy Inspector General of Police communicating the report made on the investigation by the police was produced but neither the report nor the source of information on which it was based nor the name of the person who conducted the investigation was disclosed either to the workman or the, Tribunal.
The ground urged for such non disclosure was that the report was confidential and if disclosed it would not be possible for the company to have such investigations in future.
The reason appears to be that if the person conduct (1) C.A. 382 of 1966, dec.
on August 14, 1967.
(2) C.A. 516 of 1966 dec.
on October 26, 1967.
(3) C.A. 1735 of 1969,dec.
on September 12, 1969.
350 ing such investigation were produced for cross examination by the workman or if his report were to be disclosed, the name or names of the informants would come out with the result that no informant in future would readily come forward to give information about other workmen.
Even in criminal cases an investigating officer is not compelled to disclose the name of his informant.
But the Tribunal appears to have been impressed by the company 's refusal to disclose the report although it was clearly a confidential report.
The Tribunal thought that such a report might have been made by a person who was not a responsible police officer or that it might be based on mere rumour or hearsay evidence and might not be of a very convincing nature.
The High Court went one step further and observed that it might be "as contended by opposite party No. I that the report is based entirely on the trade union activities of the opposite party in which case the discharge would itself be improper." This observation was not warranted in view of the Tribunal 's clear finding that this was not a case of victimisation or unfair labour practice on account of the union activities of the workman.
The High Court further was of the view that "even if the Management terminated the services of Sri A. K. Ray, simply on the ground that it received an adverse report against him, the order of such termination of services in the circumstances cannot be treated as legal or justified.
" It also observed that "it was not admitted by the opposite party that there was any adverse police report against him.
" But the management had examined P. B. Kanungo, the Senior Personnel Officer, who had categorically testified that the management had received such an adverse report and on the basis of that report the company 's Security Officer had recommended the termination of service of the workman,.
There was no cross examination on this part of his evidence.
The High Court, therefore, was not entitled to proceed on the basis as if the fact of such adverse report was any longer in doubt.
Indeed, the grievance was 'not relating to the factum of such report, but its non disclosure and the Tribunal in consequence not being able to weigh its veracity.
The fact of the Management having received the police report which was adverse was no more in dispute; nor the fact that the company 's Security Officer on the strength of that report had recommended that it was not desirable to retain the workman in service.
The termination of his service was by no means singular in any way, for, the evid ence was that verification of antecedents of all workmen used to be similarly made and whenever the report was adverse an order of discharge used to be made.
Since the special leave granted to the company is limited only to the question of the kind of, relief that the Tribunal ought to have given, we arenot in a position to go into the question whether the termination of service was legal or justified.
We have, therefore, 351 to proceed on the footing that the Tribunal 's conclusion that it was not legal was right.
The question, however, still is whether the Tribunal was, in the circumstances of the case, justified in directing reinstatement.
It is true that some of the decisions of this Court have laid down that where the discharge or dismissal of a workman is not legal or justified, the relief which would ordinarily follow would be reinstatement.
The Tribunal however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional so as to make reinstatement inexpedient or improper.
The Tribunal has, therefore, to exercise its discretion Judicially and in accordance with well recognised principles in that regard and has to examine carefully the circumstances of each case and decide whether such a case is one of those exceptions to the general rule.
If the Tribunal were to exercise its discretion in disregard of such circumstances or the principles laid down by this Court it would be a case either of no exercise of discretion or of one riot legally exercised.
In either case the High Court in exercise of its writ jurisdiction can interfere and cannot be content by simply saying that since the Tribunal has exercised its discretion it will not examine the circumstances of the case to ascertain whether or not such exercise was properly and in accordance with the well settled principles made.
If the High Court were to do so, it would be 'a refusal on its part to exercise jurisdiction.
In the present case, there could be no dispute that the company, in accordance with its practice, called for a verification report about the concerned workman.
The report was made by the police after investigation and on that being adverse, the company 's security officer recommended to the company that it was not in the interests of the company to retain the workman 's services.
There can be no doubt that the company terminated the service of the workman only because it felt that it was not desirable for reasons of security, to continue the workman in its service.
This is clear from the fact that it was otherwise not interested in terminating the workman 's service and had in fact insisted that the workman should bind himself to serve it at least for five years.
The termination of service was not on account,of victimisation or unfair labour practice as was clearly found by the Tribunal.
It is, therefore abundantly clear that the company passed the impugned order of termination of service ' on account of the said adverse report, the recommendation of its own security officer and on being satisfied that it would not be in the company 's interests to continue him in its service.
The Tribunal no doubt felt that it was not established whether the investigation and the report following it were properly done 352 and made, that the company ought to have disclosed it to the workman and given him an opportunity to vindicate himself and that the non disclosure of the report made the termination illegal and unjustified.
That may or may not be right.
But what was relevant, at the stage when the Tribunal came to decide what relief the workman was entitled to,, was the question whether the management genuinely apprehended as a result of.
the report that it would be risky to retain the workman in the company 's service.
They may have gone wrong in the manner of terminating the workman 's service as held by the Tribunal.
But, if the management truly believed that it was not possible to retain the workman in the company 's service on grounds of security and consequently could not place confidence in him any longer, that present case would be one of those exceptional cases where the general rule as to reinstatement could not properly be applied.
Thus of courie does not mean that in every case where the employer says that he has lost confidence in the workman, and therefore, has terminated his service that reinstatement cannot be granted and the Tribunal has to award compensation.
On the other hand, it on an examination of all the circumstances of the case, the Tribunal comes to the conclusion that the apprehensions of the employer were genuine and the employer truly felt that it was hazardous or prejudicial to the interests of the industry to retain the workman in his service on grounds of security, the case would be properly one where compensation would meet the ends of justice.
On a consideration of all the circumstances, the present case, in our view, was one such case.
The Tribunal exercised its discretion mechanically without weighing the circumstances of the case.
That was no exercise of discretion at all.
There is ample authority to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order.
[See S.A. de Smith, Judicial Review of Administrative Action, (2nd ed.) 324 325].
One such relevant consideration, the disregard of which would render its order amenable to interference, would be the well settled principles laid down in decisions binding on the tribunal to whom the discretion is entrusted.
The refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise, its jurisdiction.
Its order, therefore, becomes liable to interference.
There is, therefore, no difficulty in holding that the order of reinstatement passed by the Tribunal was liable to be quashed and that the High Court erred in refusing to interfere with it merely .
on the ground that it could not do so as it was a case where the Tribunal had exercised its discretion.
The question next is ', having held that the order of reinstatement was not a proper order, in that, 353 it was not in consonance with the decided cases, do we simply quash the order of the Tribunal and that of the High Court and leave the concerned workman to pursue his further remedy ? The other alternative would be to remand the case to the, Tribunal to pass a suitable order.
In either case, in view of this judgment, no other order except that of compensation can be obtained by him.
If the case is remanded and the Tribunal on such remand passes an order of compensation and fixes the amount, such a course would mean further proceedings and a I possible appeal.
That would mean prolonging the dispute, which would hardly be fair to or conducive to the interests of the parties.
In these circumstances we decided that it would be more proper that we ourselves should determine the amount of compensation which would meet the ends of justice.
Having come to that conclusion, we heard counsel for both the parties.
After doing so and taking into consideration all the facts and circumstances of the present case we have come to the conclusion in the light also of the decisions of this Court such as Assam Oil Co. vs Its Workmen( '), Utkal Machinery Ltd. vs Workmen( ') and the recent case of Ruby General Insurance Co. Ltd. vs P. P. Chopra(3) that compensation ', for a period of two years at the rate of Rs. 160/ per month, that being the last salary drawn by the concerned workman, would meet, the ends of justice.
We accordingly allow the appeal, quash the order of the Tribunal and the High Court and instead direct the appellant company to pay to the 1st respondent Rs. 3840 as and by way of compensation.
There will be no order of costs.
R.K.P.S. Appeal allowed.
(1) ; (2) ; (3) C.A. 1735 of 1969 decided on September 12, 1969.
| D who was one of eight partners in a firm, died on February 20, 1957.
By virtue of a provision in the partnership deed, the business of the firm was continued by the surviving partners.
The respondents, being the widow and son of D commenced an action for an account of the partnership between D and the surviving partners, praying for an order for the payment of the amount determined to be due to D at the time of his death.
A single judge of the High Court passed a preliminary decree directing that an account be taken of the partnership as on February 20, 1957.
A Division Bench, in appeal, modified the decree holding that the respondents were entitled only to interest at 6 % p.a. on.
the amount of D 's share in the assets of the partnership, including good will.
In appeal to this Court it was contended on behalf of the appellants that the respondents as legal representatives of D were not entitled to a share in the value of the good will of the firm because good will may be taken into account only when there is a dissolution and not otherwise; and.
furthermore, because D had agreed that his interest in the good will would cease after his death and the business shall be continued by the _surviving, partners.
HELD : Dismissing the appeal, It could not be held that in interpreting a deed of partnership, business.
whereof, it is stipulated shall be continued by the surviving I partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.
The good will of a firm is an.
asset of the firm.
In interpreting the deed of partnership, the Court will insist upon, some indication that the right to a share in the assets is, by virtue of the agreement that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.
In the absence of a provision expressly made or clearly implied, the normal rule that the share of a partner in the assets devolves upon his legal representatives will apply to the good will as well as to other assets.
[693 F H] There is no indication in section 55 of the Partnership Act that goodwill may be taken into account only when there is a general dissolution of the firm,.
and not when the reprensentatives of a partner claim his share in the firm, which by express stipulations is to continue not with standing the death of a partner.
Nor do sections 39, 42 and 46 of the Act support such a contention.[691 F] Hunter vs Dowling, [18951 ; Smith vs Nelson 96 Law Times Reports 313; Bachubai and L. A. Watkins vs Shamji Jadowji, I.L.R. ; referred to.
Cl/70 14. 690
|
ition (Civil) Nos.1003 1005 of 1984.
(Under Article 32 of the Constitution of India ).
PG NO 626 R.K. Garg, Pankaj Kalra and P.K. Jain for the Petitioners.
V.C. Mahajan, Ms. A. Subhashini, C.V. Subba Rao, Grish Chander, S.K. Mehta, Dhruv Mehta, Aman Vachher, S.M. Sarin and Jagannath Goulay (N.f.) for the Respondents.
The Judgments of the Court was delivered by VENKATARAMIAH, J. People belonging to the Scheduled Castes and the Scheduled Tribes and to other weaker sections of society in India are the zealously protected children of the Indian Constitution.
Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
While clause (1) of Article 15 of the Constitution provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste.
sex, place of birth or any of them, clause (4) of that Article provides that nothing in the said Article or in clause (2) of Article 29 of the Constitution shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Scheduled Tribes.
Simlarly, while clause (4) of Article 16 of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and clause (2) of the said Article provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State, clause (4) of the said Article provides that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
Article 330 and Article 332 of the Constitution provide for reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Lok Sabha and in the Legislative Assemblies of the States till such period as is provided in Article 334 of the Constitution.
Article 335 of the Constitution, which is relevant for purposes of this case, provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
PG NO 627 The present case is, however, one in which a concession which had been extended to the employees belonging to the Scheduled Castes and the Scheduled Tribes by way of reservation of vacancies at the stage of promotion has been withdrawn in a rather concealed way.
Petitioners 1 and 2 in this Writ Petition are the P & T Scheduled Caste/Tribe Employees ' Welfare Assocation (Regd.) Delhi and the Federation of all India Scheduled Castes & Scheduled Tribes Employees P & T Department, New Delhi and Petitioner 3 is an employee in the Posts & Telegraphs Department.
By the letter bearing No. 27/2/71 Estt.
(SCT) dated 27.11.1972 issued by the Department of Personnel, the Government communicated its policy regarding the reservations for the Scheduled Castes and the Scheduled Tribes in posts filled by promotion/promotions on the basis of seniority subject to fitness.
The said policy was adopted by the Government in supersession of the orders contained in an earlier Government Order dated 11.7.1968.
Under the said policy a reservation of 15 per cent of vacancies was made for the Scheduled Castes and 7 1/2 percent for the Scheduled Tribes wherever promotions were to be made on the basis of seniority subject to fitness, in appointments to all Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, did not exceed 50 per cent.
In order to implement the above reservation the Government directed the appointing authorities to maintain a separate 40 point roster to determine the number of reserved vacancies in a year in which points 1,8, 14, 22, 28 & 36 had to be reserved for the Scheduled Castes and points 4, 17 and 31 had to be reserved for the Scheduled Tribes.
Detailed instructions were issued to the appointing authorities to make promotions in accordance with the directions contained therein so that members belonging to the Scheduled Castes and the Scheduled Tribes could have an advantage of getting promotion to a higher cadre much earlier than the employees who did not belong to the Scheduled Castes and the Scheduled Tribes.
By the letter of the Department of Personnel & Administrative Reforms bearing O.M. No. 8/11/73 Estt.
(SCT) dated 12.9.
1974 addressed to all the Ministries further instructions were issued with regard to the reservation of the Scheduled Castes and the Scheduled Tribes in posts filled by promotions/appointments to Selection Grade posts directing reservation of 15 per cent of vacancies for Scheduled Castes and 7 1/2 per cent for Scheduled Tribes.
As regards the Posts & Telegraphs employees working under the P & T Board, the Ministry of Communications by it letter No. 31 19/74 PE I dated 15.6.
1974 gave certain further directions with regard to the filling up of posts by promotion conferring certain other advantages on persons belonging to the Scheduled Castes and the Scheduled Tribes.
The policy PG NO 628 of reservation contained in the above three Government letters was continued till the year 1983 in the Post & Telegraphs Department.
It would appear that in the year 1983 an agreement was arrived at between the Ministry of Communications and certain associations of employees working in the Posts & Telegraphs Department and as a consequence of the said agreement a fresh order relating to the policy of promotion to be adopted in the Posts & Telegraphs Department was issued in supersession of the scheme of reservation, which was being followed till then.
The said New policy, the validity of which is challenged before us, is contained in the letter bearing No. 31 26/83 PE l dated 17.
1983 addressed to all heads of circles.
Under this new policy it was decided that with effect from 30.11.1983 all officials belonging to basic grades in Group C and Group D to which there was direct recruitment either from outside and/or by means of limited competitive examination from lower cadres, and who had completed 16 years of service in that grade would be placed in the next higher grade.
This policy, it is alleged, was introduced in order to remove the effects of stagnation of employees in a particular grade for nearly 20 to 23 years without being promoted to higher grade.
It would appear that under the scheme which was prevailing prior to 30.11.1983 it was possible for members belonging to the Scheduled Castes and the Scheduled Tribes to secure promotion to the higher cadre within a period of 10 to 12 years while the other employees had to wait for nearly 20 to 23 years.
Thus an advantage had been conferred on the employees belonging to the Scheduled Castes and the Scheduled Tribes since they could secure promotion Within a shorter period.
Under the new policy irrespective of the fact whether an employee belonged to the general category or to the category of the Scheduled Castes and the Scheduled Tribes he would gory of the Scheduled Castes and the Scheduled Tribes he would be able to get promotion to the higher cadre on the completion of 16 years.
Thereby the comparative advantage which the members belonging to the Scheduled Castes and the Scheduled Tribes were enjoying was taken away and all the employees, namely, the employees belonging to the Scheduled Castes, the Scheduled Tribes and to the other categories were placed at par.
However, clause 6 of the said letter dated 17.12.1983 which contained the new policy reads thus: "6.
For promotions under the time bound one promotion scheme the normal orders relating to reservation for SC/ST communities will not apply unless any specific order in this regard is subsequently issued.
" PG NO 629 It is admitted that no specific order has been issued by the Government pursuant to clause 6 so far.
But the earlier orders providing for reservation in favour of the Scheduled Castes and the Scheduled Tribes were made inapplicable.
Aggrieved by the action taken by the Government in implementing the policy contained in letter dated 23.
l983, which had the effect of depriving the members belonging to the Scheduled Castes and the Scheduled Tribes of the advantage which they were enjoying, the petitioners have filed this petition questioning the said action.
The petition is resisted by the respondents.
It is urged on behalf of the Government that the 'time bound one promotion scheme ' contained in the letter dated 23.12.83 was advantageous to all the employees since all of them would get automatically promoted to a higher cadre on completing 16 years of service in a cadre and that it had been issued with the consent of the Federations of Employees of the Posts & Telegraphs Department.
It is not disputed that in many of the other departments of the Union Government the scheme of reservation of posts for the Scheduled Castes and the Scheduled Tribes is in vogue in cases of promotions from the lower grades to the higher grades when they are done on the basis of seniority subject to fitness and under the said policy the persons belonging to the Scheduled Castes and the Scheduled Tribes working in the other departments have been conferred an extra advantage which was not available to the Candidates belonging to other categories and that in the Posts & Telegraphs Department also the employees belonging to the Scheduled Castes and the Scheduled Tribes were enjoying a similar advantage before 30.11.1983 on which date the policy contained in the letter dated 23.12.1983 come into force.
Even the letter dated 23.212.1983 while it sets at naught the normal orders relating to reservation for the Scheduled Casts and the Scheduled Tribes in the Posts Telegraphs Department in force in the other department provides for the issue of specific orders by the Government under which the members belonging to the Scheduled Castes & the Scheduled Tribes could gain some extra advantage.
Admittedly no such order has been issued till today.
The petitioners have prayed that a direction should be issued to the Government to issue specific order conferring on them such an extra advantage.
We feel that the claim made by the petitioners is fully justified in view of the fact that similar advantage is being enjoyed by persons belonging to the Scheduled Castes and the Scheduled Tribes in other Departments and only they have been deprived of it.
Such deprivation violates the equality clause of the Constitution.
While it may be true that no writ can be issued ordinarily competing the Government to make reservation under Article 16(4) which PG NO 630 is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government discriminatory and invite intervention by this Court.
One of the methods by which the Government can confer some extra advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in cases of this nature where promotion to higher cadre is a time bound one is to direct that the employees belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on completion of a shorter period of service than what is prescribed for others.
In this particular case it is open to the Government to direct that while all others would be entitled to be promoted to the higher cadre on completion of 16 years of service, the members belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on completion of, say, 12 or 13 years of service.
There may be other methods of achieving the same result.
The claim for conferment of some extra advantage on the Scheduled Castes and the Scheduled Tribes employees working in the Posts & Telegraphs Department which may be commensurate with the extra advantage which members belonging to the Scheduled Castes and the Scheduled Tribes are enjoying in the other departments of the Government of the maintenance of efficiency in the service appear to be a reasonable one.
In what way it should be done is a matter left to the discretion of the Government.
This should be decided by the Government taking into consideration all aspects of the case.
We therefore, issue a direction to the Government of India to issue an order under clause 6 of the letter dated some additional advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in the Post & Telegraphs Department commensurate with similar advantages which are being enjoyed by the employees belonging to the Scheduled Castes and the Scheduled Tribes in the other departments of th Government of India.
The Government shall issue such an order accordingly within four months from today.
Any order that may be issued by the Government shall operate prospectively.
All promotions that have been made so far pursuant to the policy contained in the letter dated 23.12.1983 and that may be made hereafter till the date on PG NO 631 which the direction to be issued by the Government under clause 6 comes into operation,shall however remain undisturbed.
This petition is accordingly allowed.
No costs.
G.N. Petition allowed.
| In supersession of its earlier order issued in I968, the Union Government communicated in I971 its policy regarding reservation for the Scheduled Castes and the Scheduled Tribes in post filled by promotion on the basis of seniority subject to fitness.
Whenever such promotion were to be made in appointments to Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, did not exceed 50 per cent, 15 per cent and 7/1 per cent of the vacancies were to be reserved for SCs and STs respectively.
Detailed instructions were issued to the appointing authorities to make promotions accordingly so that the SCs and STs could have an advantage of getting promotion to a higher grade much earlier than the others.
In 1974, further instructions were issued with regard to reservation of Scheduled Castes and Scheduled Tribes in posts filled by promotionts/appointments to Selection Grade Posts directing reservation of 15 per cent/7 1/2 percent of the vacancies for SCs/STs.
PG NO 623 PG NO 624 In the Posts and Telegraphs Department, the aforesaid policy continued till 1983 when an agreement was arrived at between the Ministry of Communications and certain associations of Post and Telegraphs employees, and a fresh order relating to the policy of promotion to be adopted in the P & T Department was issued in supersession of the scheme of reservation followed till then.
Under the policy, all official belonging to basic grades in Group C and Group D to which there was direct recruitment either from outside and/or by means of limited competitive examination from lower cadres and who had completed 16 years of service in that grade would be placed in the next higher grade.
Whether an employee belonged to general category or to the category of SCs and STs, he would get his promotion on the completion of 16 years ' service.
Under the previous scheme it was possible for the SC and ST employees to secure promotion within a period of 1() to 12 years, while the other employees had to wait for nearly 20 to 23 years.
Thus, the comparative advantage enjoyed by employees belonging to SCs and STs was taken away.
No specific order was issued by the Government regarding reservation for SCs and STs, though clause 6 of the new scheme provided for it.
But the earlier orders providing for reservation for SCs and STs were made inapplicable.
Aggrieved by the new policy, which deprived the SC and ST employees of the advantage which they were enjoying, the petitioners approached this Court by way of the present writ petition.
Petitioners prayed for a direction to the Govt.
of India for issuing an order under clause 6 of the new scheme conferring such additional advantage to them as are enjoyed by SC and ST employees in other departments.
The Respondent contended that the new scheme was advantageous to all the employees since all of them would get automatic promotion after completing 16 years of service in a cadre and that it was done with the consent of the Federations of Employees of the P & T Department.
Allowing the writ petition, HELD:1.The advantage of promotion within a shorted period is being enjoyed by persons 'belonging to the Departments and only the petitioners have been deprived of it.
Such deprivation violates the equality clause of the PG NO 625 Constitution.
While it may be true that no writ can be issued ordinarily compelling the Government to make reservation under Article 16(4) which is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly, the advantage of such reservation which they were enjoying earlier, while others who are similarly situated in the other departments are allowed to enjoy it, make the action of Government discriminatory and invite intervention by this Court.
[629G H; 630A B] 2.
One of the methods by which the Government can confer some extra advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in cases of this nature where promotion to higher cadre is a time bound one is to direct that the employees belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on completion of a shorter period of service than what is prescribed for others.
In this particular case it is open to the Government to direct that while all others would be entitled to be promoted to the higher cadre on completion of 16 years of service, the members belonging to the Scheduled Castes and the Scheduled Tribes may nay be promoted to the higher cadre on completion ot, say 12 or 13 years of service.
There may be other methods of achieving the same result.
In what way it should be done is a matter left to the discretion of the Government.
This should be decided by the Government taking into consideration al aspects of the case.[630B F] 3.
The Government of India shall within four months issue an order under clause 6 of the letter dated 23.11.1983 conferring some additional advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in the Posts & Telegraphs Department commensurate with similar advantages which are being enjoyed by the employees belonging to the Scheduled Castes and the Scheduled Tribes in the other departments.
Any order that may be issued by the Government shall operate prospectively.
All promotion that have been made so far pursuant to the policy contained in the letter dated 23.11.1983 and that may be made hereafter till the date on which the direction to the issued by the Government under claus 6 comes into operation, shall however, remain undisturbed.
[630 F H;631A]
|
ivil Appeal No. 353 of 1 969.
From the judgment and decree dated the 19th/20th July, 1965 of the High Court of Gujarat at Ahmedabad in First Appeal No. 584 of 1960.
M.N. phadke, section C. Patel and R.N. Poddar for the appellant.
552 D.V. Patel, R.A. Shraff, Gopal Subramaniam and D.P. Mohanty for the respondent.
The order of the Court was delivered by KOSHAL, J. The sole respondent in this appeal died on the 10th December, 1978.
He was also arraigned as an appellant in the connected appeal (Civil Appeal No. 2132 of 1977) in which an application was made on the 20th February 1979 stating the factum and the date of the demise.
A copy of that application was delivered on the date last mentioned to the clerk of learned counsel for the appellant State, who, however, took no step to move the Court for having the legal representatives of the deceased respondent brought on the record in the present appeal till the 29th August, ]979 when an application was made for that purpose, but without being accompanied by any affidavit containing averments as to why the inordinate delay in filing the application should be condoned.
An affidavit of the type just mentioned was filed in Court on 4th March, 198().
It is common ground between the parties that on the death of the sole respondent to the appeal the right to sue survived to his legal representatives.
No application having been made within 90 days of the death, the appeal abated on the 11th March.
1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date.
(Article 121 of the Limitation Act).
The application actually made in that behalf was thus time barred by more than 3 months and a half.
Mr. Phadke, learned counsel for the appellant does not dispute this proposition.
He urges.
however, that the delay in making the application last mentioned should be condoned and the abatement of the appeal set aside.
No sufficient cause, however, for the condonation of the delay is made out from any material on the record.
As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move the Court till the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place.
His knowledge of the death of the respondent must be attributed to the appellant State 553 also and his negligence in not moving the Court in time must be deemed to be that of the appellant.
Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay.
The contention is wholly without substance.
The abatement stands in the way of the appeal being heard on merits which cannot, therefore, be looked into.
No grounds for the condonation of the delay having been made out we refuse to set aside the abatement.
The appeal is accordingly dismissed.
| Dismissing the appeal by special leave, the Court ^ HELD: The abatement stands in the way of the appeal being heard on merits.
In the instant case, (a) on the death of the sole respondent to the appeal the right to sue survived to his Legal representatives; (b) no application having been made within 90 days of the death.
the appeal abated on the 11th of March, 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date, under Article 121 of the Limitation Act; and (c) the application actually made to set aside the abatement was time barred by more than three months and a half.
The clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place.
His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant.
[652 E H, 653 A, B]
|
Civil Appeal No. 191 of 1958.
Appeal by special leave from the judgment and decree dated February 13, 1956, of the High Court of Judicature at Calcutta in First Appeal No. 191 of 1949.
B. Sen and Sadhu Singh, for the appellant.
561 Vidyadhar Makajan and T. M. Sen, for the respondent.
March 27.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the judgment of the Calcutta High Court.
The brief facts necessary for present purposes are these: The appellant, section N. Dutt, is the sole proprietor of the business known as "section N. Dutt & Co." and carried on this business under that name and style at Krishnagore in the district of Nadia in 1944.
On May 17, 1944, section N. Dutt & Co. obtained an order from the military authorities for the supply of 10,000 baskets of mangoes to be delivered at Sealdah Railway Station, every day from May 24, 1944, for ten days at the rate of 1,000 baskets, per day.
The military authorities made arrangements with the Bengal and Assam Railway for the supply of 30 covered wagons at Jiaganj Railway Station at the rate of three wagons per day commencing from May 22, 1944 for this purpose, and this was communicated to the appellant on May 19, 1944.
On May 18,1944, the Divisional Superintendent, Sealdah informed the Station Master at Jiaganj that contractor section N. Dutt would book and load 30 wagons of mangoes at Jiaganj at the rate of three wagons per day from May 22, 1944 and directed him to accept the booking and allot wagons for the said purpose.
The appellant thereupon placed indents with the Station Master Jiaganj for.
the supply of the said wagons and began to bring to the Jiaganj Railway Station baskets of mangoes from May 21, 1944.
It appears however that wagons were not supplied regularly, with the result that whatever consignments reached Sealdah were spoilt and were rejected by the military authorities.
On May 30, 1944, the military authorities informed the contractor that the contract had been cancelled on account of the unsatisfactory nature of the supplies.
The result of this was that 5004 further baskets of mangoes could not be despatched, though they had been stacked at the railway station at Jiaganj.
In consequence the mangoes were spoilt 71 562 and had to be thrown away.
The appellant claimed that he had sustained a heavy loss due to the misconduct, gross negligence and carelessness on the part of the Bengal and Assam Railway administration.
Consequently he Submitted a claim for damages for over Rs. 84,000 to the Chief Commercial Manager and the General Manager of the Railway.
Subsequently on November 4, 1944, he gave two notices under section 80 of the Code of Civil Procedure to the Secretary to the Governor General of India in Council representing the Bengal and Assam Railway and followed it up by instituting the suit on July 21, 1945 claiming over Its. 84,000 as damages.
The suit was resisted by the Governor General in Council, now represented by the Union of India.
Among other defenses with which we are not concerned in the present appeal, it was contended on behalf of the Union of India (respondent) that the appellant was not entitled to maintain the suit as the two notices under section 80 of the Code of Civil Procedure were not valid and sufficient, but were defective.
When the matter came to trial before the Subordinate Judge, he hold in favour of the appellant on the question whether there was negligence or misconduct on the part of the Railway administration; but he dismissed the suit on the ground that the two notices under section 80 were defective inasmuch they had been issued by section N. Dutt and Co. and not on behalf of the appellant.
There was then an appeal by section N. Dutt before the High Court.
The High Court agreed with the Subordinate Judge that the notices under section 80 were defective and the suit was rightly dismissed.
Further on the merits, the High Court did not agree with the Subordinate Judge that any misconduct or negligence had been proved which would entitle the appellant to any damages except in the matter of one small consignment.
The appeal therefore failed.
Thereupon the appellant applied for a certificate to appeal to this Court which was refused.
He then came to this Court by petition for special leave which was granted; and that is bow the matter has came up before us.
563 The main point therefore that arises in this appeal is whether the notices in question were in conformity with section 80 of the Code of Civil Procedure; if they were not, the suit would fail on the ground of non compliance with that provision.
Section 80 inter alia lays down that "no suit shall be instituted against the Central Government, until the expiration of two months next after notice in writing has been delivered to, or left at the office of the Secretary to that Government, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered".
The defect in the present case is in regard to the name, it being not disputed that there is no other defect in the notice; and the question that arises is whether the defect in name makes the notices ineffective and therefore the suit becomes not maintainable in view of the bar of section 80.
As far back as 1927, the Privy Council in Bhagchand Dagadusa vs Secretary of State for India in Council (1) had to consider the true application of section 80 and held that section 80 was explicit and mandatory and admitted of no implications or exceptions and had to be strictly complied with and was applicable to all forms of action and all kinds of relief.
In particular, with reference to the name the Privy Council had to consider the matter in Al.
Vellayan Chettiar vs Government of the Province of Madras (2).
In that case the suit was brought by two plaintiffs but the notice was given by only one of them.
The Privy Council hold that this could not be done and observed that " section 80,according to its plain meaning, requires that there, should be identity of the person who issues the.
notice with the person who brings the suit".
Finally, in Government of the Province of Bombay vs Pestonji Ardeshir Wadia the Privy Council had again to consider the scope of section 80.
In that case the notice bad been given by two trustees.
Before however the suit could be brought, one of the trustees (1) (1927) L.R. 54 I.A. 138 (2) (1947) L R. 74 I.A,.
(3) (1949) L. R. 76 I. A. 85.
564 died and was replaced by two other trustees.
The suit was brought by the three trustees, only one of whom had given the notice while two had not.
The Privy Council again reiterated that the provisions of a. 80 were imperative and must be strictly complied with.
It went on to say that "there is no provision in the Code enabling the trustees to sue in the name of the trust, as members of a firm may sue in the name of the firm.
In the case of a trust, the plaintiffs are bound to be the trustees and not the trust and where no notice has been served under section 80, specifying the names and addresses of all the trustees, the provisions of the section have not been complied with and the suit is incompetent.
" Learned counsel for the appellant, however, relies on Dhian Singh Sobha Singh and another vs The Union of India (1), where the following observations occur: "The Privy Council no doubt laid down in BhagChand Dogadusa vs Secretary of State (L.R. 54 I.A. 338) that the terms of this section should be strictly complied with.
That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense.
As was stated by Pollock C. B. in Jones vs Nicholls, ; , 150), 'We must import a little common sense into notices of this kind '.
Beaumont C. J., also observed in Chandulal Vedilal vs Government of Bombay (I.L.R. One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed.
" The next case to which reference was made is The State of Madras vs C. P. Agencies (2 ).
The question in that case was whether the cause of action had been stated as required by section 80, and this Court held that the cause of action had been stated in the notice.
This Court also observed that it was not necessary in that case to consider the two decisions of the Privy Council (to which reference has already been made by us) requiring the identity of the person who issues a notice with the person who brings the suit.
(1) ; , 795.
(2) A.I.R. (1960) S C. 1309.
565 It is urged that these observations show that the strictness which 'the Privy Council emphasised in these cases has not been accepted by this Court.
It must however be remembered that the defect with which this Court was dealing in these cases was in the matter of cause of action and relief, and this Court pointed out that it was necessary to use a little common sense in such circumstances.
Where the matter (for example) concerns the relief or the cause of action, it may be necessary to use common sense to find out whether section 80 has been complied with.
But ,Where it is a question of the name of the plaintiff, there is in our opinion little scope for the use of common sense, for either the name of the person suing is there in the, notice or it is not.
No amount of common sense will put the name of the plaintiff there, if it is not there.
Let us therefore examine the notices and the plaint in this case to see whether the suit is by the same person who gave the notices, for it cannot be gain said that the identity of the person who issues the notice with the person who brings the suit must be there, before it can be said that section 80 has been complied with.
Now the relevant part of the two notices was in these terms: "Under instructions from my client Messrs. section N. Dutt and Co. of Krishnagar, I beg to give you notice that my said client will bring a suit for damages in the court of the Subordinate Judge of Nadia at Krishnagar against the B & A Railway Administration".
In the plaint, the description of the plaintiff was in these terms: "Surrendra Nath Dutta sole proprietor of a business carried on under the name and style of section N. Dutt & Co. of Krishnagar, P. section Krishnagar, District Nadia".
It will be immediately obvious that the notices were in the name of Messrs. section N. Dutt and Co., while the suit was filed by section N. Dutt claiming to be the sole proprietor of Messrs. section N. Dutt and Co. It is urged on behalf of the appellant that the reason why the 566 suit was filed in the name of section N. Dutt as sole proprietor of Messrs. section N. Dutt and Co. was that no suit could have been filed in the name of Messrs. section N. Dutt and Co., as that was not a firm; that was merely the name and style in which an individual, namely section N. Dutt, was carrying on the business.
The question therefore that immediately arises is whether section N. Dutt who filed the suit was the person who gave the notices and the answer is obvious that it is not so.
It may be that section N. Dutt is the sole proprietor of Messrs. section N. Dutt and Co. and is carrying on business in that name and style; but that does not mean that these notices were by section N. Dutt.
Any one reading these notices would not necessarily come to the conclusion that Messrs. section N. Dutt and Co. was merely the name and style in which an individual was carrying on business.
The Prima facie impression from reading the notices would be that Messrs. section N. Datt and Co. was some kind of partnership firm and notices were being given in the name of that partnership firm.
It cannot therefore be said on a comparison of the notices in this case with the plaint that there is identity of the person who issued the notices with the person who brought the suit.
Besides if Messrs. section N. Dutt and Co., not being a partnership firm, could not file a suit in that name and style on behalf of its members, we cannot see how section N. Dutt and Co. could give a valid and legal notice in that name and style on behalf of an individual, section N. Dutt.
As was pointed out by the Privy Council in Peslon Ardeshir Wadias case (1), the case of members of a firm stood on a different footing, for the members of a firm might sue in the name of the firm; but in the present case Messrs. section N. Dutt and Co. is not a firm; it is merely the name and style in which an individual (namely, section N. Dutt) is carrying on business and though the individual may in certain circumstances be sued in name and style, he would have no right to sue in that none.
There ,fore, where an individual carries on business in some name and style the notice has to ' be given by the individual in his own name, for the suit can only be filed in the name, (1) (1949) L.R 76 I.A. 85.
567 of the individual.
The present suit is analogous to the case of trustees where the suit cannot be filed in the name of the trust; it (,,an only be filed in the name of the trustees and the notice therefore has also to be given in the name of all the trustees who have to file a suit.
Therefore comparing the notices given in this suit with the plaint, and remembering that Messrs. section N. Dutt and Co. is not a partnership firm but merely a name and style in which an individual trades, the conclusion is inescapable that the person giving the notices is not the same as the person suing.
It was urged on behalf of the appellant that the Railway Administration knew the position that Messrs. section N. Dutt and Co. was merely the name and style in which an individual (namely, section N. Dutt) was trading.
But even this in our opinion is not correct as a fact, for, as pointed out by the High Court, there are documents on the record which show that section N. Dutt gave himself out as a partner of Messrs. section N. Dutt and Co., thus suggesting that section N. Dutt and Co. was a firm.
That was the reason why a plea was raised on behalf of the Union of India that the suit was barred under section 69 of the Partnership Act as the firm was not a registered firm.
In this connection learned counsel for the appellant referred us to certain cases in which in similar cir cumstances the notice was considered to be valid under section 80.
These cases are: Kamta Prasad vs Union of India (1) and Secretary of State vs Sagarmal Mar. wari (2).
In view of what we have said above, we cannot agree with the view taken in these oases and must hold that they were wrongly decided.
In this view of the matter, there is no force in this appeal and it is hereby dismissed with costs.
Appeal dismissed.
| The appellant was the sole proprietor of a business styled section N. Dutt SE Co. He gave a notice under section 80 of the Code of Civil Procedure to the respondent in the name of "section N. Dutt & Co.".
After the requisite period he filed a suit against the respondent describing the plaintiff as: "Surendra Nath Dutt sole proprietor of a business carried on under the name and style of section N. Datt & Co." The suit was dismissed on the ground that the notice was defective as it was issued by section N. Dutt & Co. and not the plaintiff.
The appellant contended that the notice was valid as section N. Dtitt carried on business and that no suit could have been filed in the name of section N. Dutt & Co. as it was not a firm.
Held, that the notice was defective and that the suit had been rightly dismissed.
The person who issued the notice was not the same as the person who filed the suit.
Since section N. Dutt & Co. could not file the suit in that name it could not give a valid and legal notice in that name.
A valid notice could have been given only in the name of section N. Dutt.
A defect in the notice as to the name of the plaintiff has to be viewed strictly.
Bhagchand Dagadusa vs Secretary of State for India in Council, (1927) L.R. 54 I.A. 338, Al.
Velayan Chettiar vs Government the Province Madras, (1947)223 and Government of the Province of Bombay vs Pestonji L.R. Wadia, (1949) L.R. 76 I.A. 85, referred to.
Dhian Singh Subha Singh vs TheUnion of India, ; and The State of Madras vs C. P. Agencies, A.I.R. , distinguished.
Kamta Prasad vs Union of India, and Secretary of State vs Sagarmal Marwari, A.I.R. 1941 Pat.
517, disapproved.
|
minal Appeal No. 124 of 1965.
Appeal by special leave from the judgment and order dated April 26, 1965 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revision No. 266 D of 1964.
Bhawani Lal, Kartar Singh Suri and E. C. Agrawala for P. C. Agrawala, for the appellants.
R. N. Sachthey, for the respondent.
457 The Judgment of the Court was delivered by Hegde, J.
Two questions that arise for decision in this appeal by special leave are : (1) whether the appellants have established satisfactorily the right of private defence pleaded by them and (2) if they had that right, have they exceeded the same ? The prosecution case is as follows : Field No. 1129/477 measuring five bighas and thirteen biswas situated in Kilokri was an evacuee property and as such was under the management of the managing officer.
That property was acquired by the Central Government under the Displaced Persons Act, 1954.
(For the sake of convenience we shall refer to that property hereinafter as evacuee property.) The same was sold by public auction on January 2, 1961 and purchased by PW 17 Ashwani Kumar Dutt for a sum of Rs. 7,600.
Provisional delivery of that property was given to the vendee on October 10, 1961.
The sale certificate was issued on February 8, 1962.
The actual delivery was given on June 22, 1962 as per the warrant issued by PW 5.
Khushi Ram, the managing officer.
The said delivery was effected by PW It) Sham Das Kanungo.
On July 1, 1962 when PW 17 and his father PW 19, R. P. Dutt went to the field with PW 16, Gopal Das, PW 15 Nand Lal and one B. N. Acharya with a trac tor to level the land, the appellants came armed with spears and lathis attacked the complainants ' party and caused injuries to PWs 17 and 19 and the tractor driver, B. N. Acharya.
Though the appellants in their statement under section 342 Cr.
P.C. denied having been present at the scene of occurrence or having caused injuries to any one, the plea taken on their behalf at all stages was one of private defence.
Their case is that their relation Jamuna (DW 3) was the tenant in the land for over thirty years.
His tenancy was never terminated.
He had raised crops in the field in question.
There was no delivery on June 22, 1962.
If there was any delivery as alleged by the prosecution, the same was without the authority of law and as such was of no effect.
Hence, Jamuna continued to be in possession of the property even on July 1, 1962.
On the day prior to the occurrence, PWs 17 and 19 tried to intimidate Jamuna to come to terms with them and to peacefully deliver possession of the property to them.
But he put off the question of compromise by pleading that he was going out of station and the question of compromise could be considered after his return.
With a view to forcibly assert their right to the property, the complainant party came to the field in a body on July 1, 1962 with a tractor.
At that time PW 19 was armed with an unlicensed pistol.
It is at this stage that the appellants who are near relations of Jamuna went to the field and asked the complainant party to clear out of the field.
When they refused to do 458 so, they pushed them and thereafter used minimum force to throw them out of the field.
On the basis of the above facts, it was urged on behalf of the appellants that they were not guilty of any offence.
The courts below have accepted the prosecution version both as regards possession as well as to the manner in which the incident took place.
The appellants have been convicted under sections 447, 324 read with 149 and 148 I.P.C.
We have now to see whether on the basis of the undisputed facts as well as the facts found by the High Court, the defence can be said to have made out the plea of defence of property advanced on their behalf.
It is true that appellants in their statement under section 342 Cr.
P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence.
It is well settled that even if an accused does not plead selfdefence, it is open to the court to consider such a plea if the same arises from the material on record see In re Jogali Bhaigo Naiks and another(1).
The burden of establishing that plea is on the accused and that burden can be discharged by showing prepon derance of probabilities in favour of that plea on the basis of the material on record.
The first question that arises for decision in this case is as to who was in possession of the field in dispute on the date of the occurrence, i.e., on July 1, 1962.
For deciding that question it is necessary to find out as to who was in possession of the same prior to June 22, 1962, the date on which that field was said to have been delivered to PW 17.
On this question, the prosecution is silent.
DW 3, Jamuna, in his evidence deposed that he had been in possession of that field as a tenant for over thirty years.
His case was that he was formerly the tenant in respect of that field under some Muslim landlords and after their migration to Pakistan, under the officer managing the evacuee property.
This evidence of his was not challenged in cross examination.
That evidence is supported by the prosecution exh.
The courts below have also proceeded on the basis that Jamuna was in possession of the field till June 22, 1962.
Therefore, we have to see whether there was any lawful delivery of that field on June 22, 1962.
At this stage it is necessary to recapitulate that the field in question had been sold by the managing officer on January 2, 1961.
Its provisional delivery was given on October 12, 1961.
The sale certificate was issued on 8 2 62 (exh.
Therefore, the government had no interest in that field on or after the aforementioned sale.
It is not the case of the prosecution that Jamuna 's tenancy had been terminated by any of the authorities constituted under (1) AIR 1927 Mad.
459 the (to be hereinafter referred to as the Act).
It may further be noted that the exh.
PM The terms and conditions under which the auction of the field was held does not show that the government had undertaken to deliver physical possession of that field to the purchaser.
From the facts stated above it is obvious that Jamuna continued to be the tenant in the land even after the sale in favour of PW 17.
The prosecution case is that delivery of that field was given to PW 17 by PW 10 the kanungo on June 22, 1962 as per the delivery warrant issued by PW 5, the managing officer.
Even according to the prosecution version, at the time of that delivery Jamuna was not present.
There is also no evidence to show that Jamuna was aware of the alleged delivery.
It is true that as a token of the delivery, some ploughing was done at the time of the alleged delivery.
At this stage it is also necessary to mention that at the time of the alleged delivery, crops grown by Jamuna were there in a portion of the field.
It was said that the kanungo who delivered the field, valued the crops in question at Rs. 60 and the same was deposited by PW 17 with PW 5 as per the orders of the latter for being paid over to Jamuna.
We were not told under what authority those steps were taken.
This takes us to the question whether the purported delivery is valid in law.
Normally before a tenant can be evicted from his holding, his tenancy must be terminated and the eviction should be done through a court of competent jurisdiction.
No landlord has any right to throw out his tenant from his holding.
The law on the subject was explained by this Court in Lallu Yeshwant Singh vs Rao Jagdish Singh and others(1).
Therefore, it is clear that PW 17 who had become the owner of the land long before June 22, 1962 could not have evicted Jamuna from the land in the manner alleged.
The next question is whether PW 5, the managing officer was competent to evict Jamuna.
We fail to see how he could have done it.
He had no interest in the land in question on June 22, 1962.
The right, title and interest of the government in the land had long been alienated.
The managing officer had already given to the vendee such possession as he could have, namely, the landlord 's possession.
Thereafter it went out of the compensation pool and the managing officer had no power to deal with it unless otherwise expressly provided.
Our attention has not been invited to any provision in the Act authorising the managing officer to deal with a property which had ceased to be an.
evacuee property.
Therefore we fail to see how PW 5 could have issued any warrant for the delivery of the field in question on June 22, 1962.
(1) ; 460 Before the courts below it was pleaded on behalf of the prosecution which plea commended itself to those courts that the .delivery in question was effected under section 19 of the Act.
Section 19 ,to the extent it is material for our present purpose, reads thus I Notwithstanding anything contained in any contract or any other law for the time being in force but subject to any rules that may be made under this Act, the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the commencement of this Act.
(2) Where any person (a) has ceased to be entitled to the possession of any evacuee property by reason of any action taken under sub section (1), or (b) is otherwise in unauthorised possession of any evacuee property or any other immovable property forming part of the compensation pool; he shall, after he has been given a ,reasonable opportunity of showing cause against his eviction from such property, surrender pos session of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation.
(3) If any person fails to surrender possession of any property on demand made under sub section (2) the managing officer or managing corporation may, notwithstanding anything to the contrary contained in.
any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to he used such force as may be necessary.
" The above provisions apply only to properties which are under .the control of the managing officers or managing corporations.
They do not apply to properties which have ceased to be evacuee properties.
Further, it is not the prosecution case that any action under sub sections 1 and 2 of section 19 had ever been taken against Jamuna.
If that was so, no action under sub section
3 of section 19 could have been taken.
As a condition precedent for taking action under sub section
.of section 19 it was necessary to take the steps prescribed by sub section
461 of section 19.
It must be noted that the power conferred under sub section 3 is a special power conferred for a special purpose.
Such a power has to be exercised strictly in accordance with the conditions prescribed.
If it is not so exercised, the exercise of the power would be vitiated.
Having not taken any action under sub section 2 of section 19, the managing officer was incompetent to issue any warrant for delivery under sub section
3 of section 19 under which he is said to have acted.
It was for the vendee to take the necessary steps under law for taking possession from Jamuna.
Therefore, it is obvious that the alleged delivery has no legal force.
In the eye of the law it is non est.
Hence Jamuna continued to be in possession of the field in question even after the so called delivery on Juno 22, 1962.
This aspect of the case was completely lost sight of by the courts below.
It is seen from the evidence of DW 3, Jamuna, which evidence was not even challenged in cross examination, that PWs 17 and 19 were aware of the fact that the purported delivery on June 22, 1962 was merely a paper delivery.
In his chief examination, DW 3, Jamuna, deposed thus: " A day prior to the occurrence, R. P. Dutta and his son Ashwani Kumar had met me and had asked me to get the compromise effected.
I told him that since I was proceeding out station in connection with some marriage, any talk of compromise could take place after my return from there.
Both R. P. Dutta and his son Ashwani Kumar had threatened me that in case I would not deliver possession of the land in question willingly, they would get possession of the same by force under the pressure of the police.
AR the accused are near relations of mine.
" To repeat, this evidence was not challenged in cross examination.
From that evidence it is clear that at about the time of occurrence PWs 17 and 19 were conscious of the fact that Jamuna still continued to be in possession of the field.
PWs 17 and 19 were aware of the fact that Jamuna was un willing to deliver possession of the field.
This is borne out by the fact that at the time of the alleged delivery on June 22, 1962, police assistance was applied for and obtained.
From the foregoing it is clear that Jamuna was in effective possession of the field on the date of the occurrence.
But it was urged on behalf of the prosecution that rightly or wrongly PW 17 had taken possession of the property on June 22, 1962, and therefore, if Jamuna had any grievances, he should have agitated LISup(CI)/68 15 462 the same in a court of law, and that his relations had no right to take law into their own hands.
This contention is based on a misconception of the law.
If by the alleged delivery PW 17 could not be held to have been put in possession of the field, he could not be said to have been in possession of the same.
The fact that some formalities were gone through in pursuance of an unauthorised order issued by PW 5 is no ground for holding that possession of the field had passed into the hands of PW 17 Steps taken by PW 17 and others who accompanied him on June 22, 1962 were unauthorised acts.
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner.
But stray ,or even intermittent acts of trespass do not give such a right against the true owner.
The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner.
A casual act of possession would not have the effect of interrupting the possession of the rightful owner.
The rightful owner may re enter and reinstate himself provided he does not use more force than necessary.
Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost.
The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force.
It is not the case of the prosecution that between June 22 and July 1, 1962 the complainant or his men had been to the field in question.
We have earlier seen that PWs 17 and 19 had unsuccessfully tried to intimidate Jamuna on June 30, 1962 to deliver peaceful possession of the field.
It is only thereafter on July 1, 1962, they along with their friends went to the field with a tractor, and at that time PW 19 was armed with a pistol for which he had no licence.
It was at that stage, the appellants who are close relations of Jamuna came to the field, some armed with sticks and others with spears.
They first asked the complainant 's party to clear out of the field, but when they refused, they pushed them and thereafter attacked them as a result of which PW 17, PW 19 and the tractor driver Acharya were injured (see evidence of PW 19, R. P. Dutt).
The injuries caused by them were held to be simple injuries.
From the proved facts, it is evident that PWs 17 and 19 had gone to the field with their friends, PW 19 being armed with a 463 deadly weapon, with a view to intimidate Jamuna and to assert their possession.
Therefore they were clearly guilty of criminal trespass.
They also constituted an unlawful assembly.
The law relating to defence of property is, set out in section 97 IPC, which says that every person has a right, subject to the restrictions contained in section 99, to defend First his own body, and the body of any other person, against any offence affecting the human body; Secondly. the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief.
or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Section 99 of the Code lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
It further lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of the public authorities and therefore the appellants could not claim the right of private defence.
The case of Jamuna and the appellants was that they were unaware of the alleged delivery on June 22, 1062.
Admittedly neither Jamuna nor any of the appellants were present at the time of that delivery.
Nor is there any evidence on record to show that they were aware of :the same.
Further, as seen earlier, the conversation that PWs 17 and 19 had with Jamuna on the day prior to the occurrence, proceeded on the basis that Jamuna was still in possession of the field.
Under these circum stances when the complainant party invaded the field on July 1 1962, Jamuna 's relations must have been naturally taken by surprise.
Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities.
The right of private defence serves a social purpose and that right should be liberally construed.
Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen.
There is nothing more degrading to the human spirit than to run away in the face of peril.
In Jai Dev vs State of Punjab (1), this Court while dealing with the right of defence of property and person observed (at p. 500) "In appreciating the validity of the appellants ' argument, it would be necessary to recall the basic assump (1) 464 tions underlying the law of self defence.
In a wellordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties.
This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself.
He is entitled to resist the attack and defend himself.
The same is the position if he has to meet an attack on his property.
In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property.
That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
The exercise of the right of private defence must never be vindictive or malicious." In Horam and others vs Rex(1), a division bench of the Alla habad High Court observed that where a trespasser enters upon the land of another, the person in whom the rightful possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so, he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence.
His action would be covered by the principle of private defence embodied in sections 96 to 105 IPC.
Similar was the view taken by a division bench of the Hyderabad High Court in Sangappa and Ors.
vs State(2).
Therein it was held that if some body enters on the land of a person who does not acquiesce in the trespass he would still retain possession of the land and as the possessor of the land, is entitled to that possession.
If he brings friends with him and with force of arms resists those who are trespassing on the land, who are also armed, he and his friends would not be guilty of forming themselves into an unlawful assembly, for those who defend their possession are not members of an unlawful assembly.
If the person acquiesces in his dispossession and subequently, under claim of title comes again to dispossess his opponents, then he and his friends would be members of an unlawful assembly.
That is also the view taken by the Madras High Court in re.
Mooka Nadar(3) We are in agreement with the ratio of those decisions.
(1) (2) I.L.R. (3) A.I.R. 1943 Mad.
465 On the basis of the proved facts it cannot be said that the appellants had exceeded their right of private defence.
In the result, this appeal is allowed, the conviction of the appellants is set aside and they are acquitted.
R.K.P.S. Appeal allowed.
| The petitioner, an officer of the Madras Government, was employed in Central Provinces and Berar for the purchase of grains on behalf of the Madras Government.
He along with many others, was under prosecution before a Special Magistrate, Nagpur (Mad by a Pradesh), on charges for offences under section 420 of the Indian Penal Code etc.
for causing loss to the Madras Government.
The Special Magistrate trying the case was appointed by the Madhya Pradesh Government under section 14 of the Code of Criminal Procedure and as the petitioner was a servant of the Government of Madras, the prosecution against him was initiated with the sanction given by the Government of Madras under section 197 of the Code of Criminal Procedure.
Held, (i) that section 14 of the Criminal Procedure Code in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on Magistrates of the first, second or third class in 169 respect of particular oases and thereby to constitute a Special Magistrate for the trial of an individual case, does not violate the guarantee under article 14 of the Constitution as the Special Magistrate in the present case had to try the case entirely under the normal procedure and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's Case ([1952] S.C.R. 284) arose in the present case.
A law vesting discretion in an authority under such circumstances cannot be discriminatory and is, therefore, not hit by article 14 of the Constitution.
(ii) It is not for the very Government which accords sanction under section 197(1) to specify also the Court before which the trial is to be held under section 197(2) and therefore in a case to which section 197(1) applies, the exercise of any power under section 14 is not excluded.
The word "Court" in sub section (2) of section 197 is not the same thing as a "person" in sub section (1) of section 14.
The practice of direct approach to the Supreme Court under article 32 (except for good reasons) in matters which have been taken to the High Court and found against, without obtaining leave to appeal therefrom, is not be encouraged.
Gokulchand Dwarkadas Morarka vs The King (A.I.R. 1948 P. C. 82) referred to; and Anwar Ali Sarkar 's case ([1952] S.C.R. 284) distinguished.
|
ivil Appeal No. 331 of 1978.
From the Judgment and Order dated 3.9.1976 of the Cal cutta High Court in Appeal from Original decree No. 407 of 1974.
B. Sen, A.K. Verma and section Suikumaran for the Appellants.
Tapash Chandra Ray and H.K. Puri for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave arises out of a suit filed by the appellants for eviction of the respondent tenant (hereinafter referred to as the Corpora tion) from certain premises on Lalbazar Street, Calcutta, on the ground of sub letting.
The City Civil Court, Calcutta, decreed the suit, but on appeal by the tenant Corporation, the Calcutta High Court reversed the judgment and dismissed the suit.
Admittedly the defendant Corporation was inducted as a tenant under a registered deed of lease dated 23.4.1948 for a period of three years from 1.5.1948.
After expiry of the period in 1951, the Corporation continued in possession, and by holding over became a month to month tenant.
The premises consists of a big room, described as room No. 3, along with a small room for the use of a Darwan (porter), staying there as guard.
The big room was, from time to time, leased out by the tenant Corporation in portions to differ ent subtenants and in 1960 the landlord brought a suit, registered as Ejectment Suit No. 978 of 1960, for the evic tion of the Corporation on several grounds including sub letting.
In the meantime West Bengal Premises Tenancy Act, 1956 had been enacted, and the provisions of section 13(1)(a) which are in the following terms, were relied on by the parties: "section 13.
Protection of tenant against evic tion.
(1) Notwithstanding anything to the contrary in any other law, no 635 order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub lets in whole or in part the premises held by him . ; . " 3.
The tenant Corporation contended that it was permit ted to create sub leases under clause 6 of the lease docu ment which is quoted below and it cannot, therefore, be accused of sub letting without the consent of the landlords: "That the lessees shall use the demised prem ises as office in connection with their busi ness and shall be entitled to sublet the portion which may not be used by them.
" It was asserted on behalf of the tenant Corporation that all the subtenants had been inducted in the premises in question in pursuance of the aforesaid permission and before the expiry of the lease period in 1951.
The City Civil Court decided the issue ,n favour of the tenant Corporation on the ground that all the sub tenancies had been created within the period covered by the lease deed and before coming in force of the West Bengal Premises Tenancy Act, 1956.
The suit was held to be not maintainable also on the ground that a legally valid notice terminating the tenancy had not been served on the tenant.
The suit was thus dismissed on 30.8.
1962 by the judgment Ext.
B(2). 4.
The present suit was filed in 1972 alleging that the tenant Corporation has, without the consent of the land lords, created fresh sub tenancies in the premises in favour of other sub tenants after the dismissal of the earlier suit.
The case is that after the original lease exhausted itself by efflux of time, and otherwise also came to an end by the landlords ' notice terminating it, the general permis sion under clause 6 of the lease deed, mentioned above, also disappeared.
Alternatively the appellants have contended that even assuming that the term in clause 6 continues to bind the parties, it does not authorise the respondent Corporation to sub let the entire premises.
The dominant purpose of the lease was actual user by the tenant itself for the purpose of running its office and clause 6 permitted it to sub let 636 only such portion which was left unused as surplus.
The appellants have also alleged default of payment of rent, but the plea has been rejected by the trial court and has not been pressed before us.
The suit was defended by the respondent Corporation contending that as held in the earlier suit the defendant was and is entitled to grant sub tenancies, and the plain tiffs ' case is fit to be dismissed.
Reliance was placed, besides the plea of res judicata, on the language of clause 6 which according to the defendant continues to bind the parties.
The City Civil Court rejected the defendant 's case of res judicata and agreeing with the plaintiffs on the question of sub letting, decreed the suit.
It held that a number of sub tenants who were in possession of the premises at the time of the earlier suit have been substituted later by another set of sub tenants after the coming into force of the Act.
The learned Judge also agreed with the plaintiffs that the entire premises was let out to sub tenants which was not consistent with the terms of the permission as mentioned in clause 6.
The Court, holding that the tenant had violated the provisions of the 1956 Act, passed a decree for eviction in favour of the plaintiffs.
The tenant Corpo ration appealed before the Calcutta High Court.
The High Court disagreed with the City Civil Court on the interpretation of clause 6 of the lease deed, and held that by reason of the judgment in the earlier suit, the present suit was barred by the rule of res judicata.
The appeal was, accordingly, allowed and the suit dismissed.
Mr. B. Sen, the learned counsel appearing in support of the appeal contended that since large portion of the disputed property was sub let to fresh sub tenants after the institution of the earlier suit of 1960, there was no scope for applying the doctrine of res judicata to the present litigation.
He inter alia argued that having regard to the change in the law brought about by the 1956 Act and special ly in view of the provisions of sections 13, 14 and 16, the appellants are entitled to a decree.
The factual position is that there are 16 sub ten ants as mentioned in Annexure B to the plaint who are occu pying the disputed room now.
Out of them 5 had been inducted before the 1960 suit and were parties thereto (as was right ly pointed out by the respondent Corporation in its applica tion dated 17.12.1973 for amendment of the written state ment).
The other 11 sub lessees were let in after the earli er suit, when the 1956 Act was in force.
The question is whether the creation of these sub tenancies violated the provisions of the Act.
637 In the earlier suit all the sub lesses were inducted during the period the lease was operative, i.e., much before the present Act was passed.
The question of violation of the provisions of the present Act, therefore, did not arise there.
It follows that so far this issue is concerned the earlier judgment can not operate by way of res judicata.
The main question which remains to be decided is whether in the circumstances, the plaintiffs ' case, based on alleged violation of the Act can be accepted.
section 14 enjoins that after the commencement of the Act no tenant shall, without the previous consent in writing of the landlord, sub let the whole or any part of the premises held by him as a tenant; or transfer or assign his rights in the tenancy or in any part thereof.
According to Mr. Tapas Ray, the learned counsel of the respondent Corporation, clause 6 of the lease deed, which continued to bind the parties by reason of the Corporation holding over, must be treated to contain the necessary consent of the appellants.
As has been seen earli er, this clause granted a general permission to the tenant to induct a sub tenant.
Can such a provision in general terms satisfy the requirements of the Act? Or, as has been suggested on behalf of the appellant, the consent contem plated by the Act has to be specific in regard to each sub lease? 10.
section 13 protects a tenant from eviction except on the grounds, enumerated therein and one of the grounds in clause (a) of sub section
(1) is in the following terms: "(a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub lets in whole or in part the premises held by him;" The language of Ss. 13 and 14 by itself does not resolve the issue.
However, the provisions of section 16 which is quoted below clearly indicate that permission to the tenant to sub let in general terms can not be deemed to be consent for the purposes of Ss. 13 and 14: "section 16 Creation and termination of sub tenan cies to be notified (1) Where after the commencement of this Act, any premises are sub let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub tenant to whom the premises are sub let shall give notice to the landlord in the prescribed manner of the creation of the sub tenancy within one 638 month from the date of such sub letting and shall in the prescribed manner notify the termination of such subtenancy within one month of such termination (2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sub let any premises either in whole or in part, the tenant and every sub tenant to whom the premises have been sub let shall give notice to the landlord of such sub letting in the prescribed manner (within six months) of the commencement of this Act and shall in the prescribed manner notify the termination of such sub tenancy within one month of such termination (3) Where in any case mentioned in sub section (2) there is no consent in writing of the landlord and the landlord denies that he gave oral consent, the Controller shall, on an application made to him in this behalf either by the landlord or the sub tenant within two months of the date of the receipt of the notice of sub letting by the landlord or the issue of the notice by the sub tenant, as the case may be, by order declare that the ten ant 's interest in so much of the premises as has been sub let shall cease and that the subtenant shall become a tenant directly under the landlord from the date of the order.
The Controller shall also fix the rents payable by the tenant and such sub tenant to the landlord from the date of the order.
Rents so fixed shall be deemed to be fair rent for purposes of this Act.
" It is plain from the above that the Act contemplates that while one sub tenant may be evicted another may continue in the premises as a tenant directly under him, depending on the circumstances.
We are, therefore, of the view that previous consent in writing of the landlord with respect to each sub letting separately is essential and a general authority to the tenant in this regard will not be suffi cient in law.
Our view is supported by the observations in M/s Shalimar Tar Products Ltd. vs H.C. Sharma and Others, ; ; a case arising under the Delhi Rent Control Act.
An examination of Ss. 14(1)(b), 16, 17 and 18 of the Delhi Rent Control Act would show that the two Acts (West Bengal Act and the Delhi Act) are similar so far the present question is concerned.
In the present case, since it is not suggested on behalf of the respondent that consent of the appellants was obtained specifically for each of the sub tenancies, the respondent Corporation 639 must be held to have violated section 14.
The appellants have thus, established the ground mentioned in section 13(1)(a) and are entitled to succeed.
None of the sub tenants has been impleaded in the present suit, but as it is not the case of the tenant Corpo ration that any of them had sent any notice to the plain tiffs, the suit, so far the present respondent is concerned, can not fail on the ground of their non impleading.
However, the sub tenants can not be bound by the finding in this suit that they have failed to serve a notice as prescribed by the Act on the plaintiffs and will be entitled to be heard if and when the plaintiffs seek their eviction.
So far the sub tenants who had been inducted in the premises earlier and were parties to the 1960 suit may have still a better claim on the strength of the decree in their favour and may insist that they would be entitled to continue in possession as tenants directly under the plaintiffs.
For the reasons mentioned above, the decision of the High Court is set aside and the decree of eviction passed by the City Civil Court against the respondent Corporation is restored.
The appeal is accordingly allowed with costs throughout.
P.S.S. Appeal allowed.
| Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956 provides for recovery of possession where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the land lord transfers, assigns or subsets in whole or in part the premises held by him.
Section 14 forbids the tenant from sub letting the premises without the previous consent in writing of the landlord.
Sub section (1) of section 16 requires the tenant and every sub tenant to whom the premises are sub.let to give notice to the landlord of the creation of the sub tenancy within one month from the date of such sub letting and also to notify the termination of such sub tenancy within one month of such termination.
Sub section (2) prescribes such a notice in respect of sub tenancies created with or without the consent of the landlord before the commencement of the Act, within the time specified therein.
Where there is no such consent in writing from the landlord, sub section (3) provides for cessation of tenant 's interest in the portion sub let and the sub tenant becoming a tenant directly under the landlord in certain circum stances.
Clause 6 of the lease deed creating tenancy for a period of 'three years from 1st May 1948 permitted the respondent tenant to sub.let any portion of the demised premises which was left unused or surplus.
After expiry of the lease period in 1951, the said tenant continued in possession, and by holding over became a month to month tenant.
It had, howev er, created certain sub tenancies within the period covered by the lease and before the Act came into force.
A suit for its eviction brought by the landlord in 1960 was dismissed by the trial court.
The landlord filed a fresh suit in 1972 on the Found that the tenant had created sub.tenancies in the premises after the dismissal of the earlier suit.
The tenant advanced the plea of res judicata and con 632 633 tended that it was and is entitled to grant sub tenancies under cl. 6 of the lease deed which continues to bind the parties.
Rejecting the case of res judicata, the trial court held that a number of sub tenants who were in possession of the premises at the time of the earlier suit had been sub stituted later by another set of sub tenants after the coming into force of the Act, and that the entire premises was let out to sub tenants which was not consistent with the terms of the permission as mentioned in cl. 6.
Allowing the appeal, the High Court, however, held that the suit was barred by the rule of res judicata.
In this appeal by special leave, it was contended for the appellants that since a large portion of the disputed property was sublet to fresh sub tenants after the institu tion of the earlier suit of 1960 there was no scope for applying the doctrine of res judicata, and that the consent contemplated by the 1956 Act has to be specific in regard to each sublease, which requirement was not satisfied by the general permission granted by cl. 6 of the lease deed.
Allowing the appeal, HELD: 1.
In the earlier suit all the sub lessees were inducted during the period the lease was operative, i.e., much before the Tenancy Act was passed.
The question of violation of the provisions of the said Act, therefore, did not arise there.
The earlier judgment cannot thus operate by way of res judicata.
[637A] 2.1 The provisions of section 16 of the Act clearly indicate that permission to the tenant to sub let in general terms cannot be deemed to be consent for the purposes of sections 13 and 14.
[637F] 2.2.
The Act contemplates that while one sub tenant may be evicted another may continue in the premises as a tenant directly under the landlord, depending on the circumstances.
Therefore, previous consent in writing of the landlord with respect to each sub letting separately is essential.
Since in the instant case consent of the appellant landlord was not obtained specifically for each of the sub tenancies, the respondent tenant must be held to have violated section 14.
The appellants are thus entitled to succeed under section 13(1)(a).
[638F, H] M/s Shalimar Tar Products Ltd. vs H.C. Sharma & Ors., ; , referred to.
It was not the case of the respondent that any of the sub 634 tenants had sent any notice to the landlord as prescribed by the Act.
Therefore, the eviction suit cannot fail on the ground of non impleading of the sub tenants.
However, the sub tenants cannot be bound by that finding in the suit.
They will be entitled to be heard if and when the landlord seeks their eviction.
[639B]
|
Civil Appeal No. 32 of 1954.
227 On appeal from the judgment and order dated the 26th September 1951 of the Madras High Court in Case Referred No. 18 of 1949.
C. K. Daphtary, Solicitor General of India (C. N. Joshi and R. R. Dhebar, with him) for the appellant.
R. Ganapathy Iyer, for the respondent.
March 14.
DAS C.J.
In the year 1945 the respondent company (hereinafter called the "assessee") received a payment of a sum of Rs. 26,000 (rupees twenty six thousand) from Jupiter Pictures Ltd. of Madras (hereinafter referred to as Jupiter Pictures) pursuant to the terms of an agreement between the assessee and Jupiter Pictures dated the 31st October 1945.
In the course of the proceedings for the assessment of the assessee 's income tax for the year 1946 47 and the excess profits tax for the chargeable accounting period from 1st April 1945 to 31st March 1946, the following question arose: "Whether on the facts and in the circumstances of the case, the sum of Rs. 26,000 received by the assessee from Jupiter Pictures Ltd., is a revenue receipt assessable under the Indian Income Tax Act?" The Income Tax Officer took the view that the sum was in the nature of a revenue 'receipt and was liable to be brought to account for purposes of calculating the tax.
The Appellate Assistant Commissioner upheld this decision.
On further appeal by the assessee the Income Tax Appellate Tribunal held that the case was governed by the decision of the Judicial Committee in Commissioner of Income Tax vs Shaw Wallace and Company(1) and that the sum received by the assessee was a capital receipt.
Accordingly on 26th August 1948 the Tribunal reversed the decision of the Appellate Assistant Commissioner.
At the instance of the Commissioner of Income Tax and (1) [1932] L.R. 59 I.A. 206; A.I.R. 1932 P.C. 138; 6 I.T.C. 178.
228 Excess Profits Tax, Madras the Tribunal under section 66(1) of the Indian Income Tax Act, 1922 referred to the High Court of Madras the question of law quoted above.
The High Court agreed with the Income Tax Appellate Tribunal and answered the question in the negative.
The present appeal is directed against this decision of the High Court.
[After stating the facts of the case which gave rise to the present point in controversy and which have been stated above His Lordship proceeded as follows:] As already indicated the question for consideration is whether this payment constituted a capital receipt or a revenue receipt.
It may be mentioned here that the answer to this question will be relevant and helpful only in respect of assessments of other assessees for assessment years prior to the date when the new sub section (5 A) was, by the Finance Act of 1955, added to section 10 of the Indian Income Tax Act, 1922.
It is not always easy to decide whether a particular payment received by a person is his income or whether it is to be regarded as his capital receipt.
Income, said Lord Wright in Raja Bahadur Kamakshya Narain Singh of Ramgarh vs Commissioner of Income Tax, Bihar and Orissa(1), is a word of the broadest connotation and difficult and perhaps impossible to define in any precise general formula.
Lord Macmillan said in Van Den Berghs, Ltd. vs Clark (Inspector of Taxes)(2) that though in general the distinction between an income and a capital receipt was well recognized and easily applied, cases did arise where the item lay on the border line and the problem had to be solved on the particular facts of each case.
No infallible criterion or test can be or has been laid down and the decided cases are only helpful in that they indicate the kind of consideration which may relevantly be borne in mind in approaching the problem.
The character of the payment received may vary according to the circumstances.
Thus the amount received as consideration for the sale of a (1) , 521; L.R. 70 I.A. 180, 192.
(2) ; ; 3 I.T.R. (Suppl.) 17.
229 plot of land may ordinarily be a capital receipt but if the business of the recipient is to buy and sell lands, it may well be his income.
The problem that confronts us has to be approached keeping in mind the different kinds of consideration taken into account in the different cases.
The assessee before us is a company carrying on a business and it received the sum in question in connection with that business.
We have, therefore, to ask ourselves as to what is the substance of the matter from the point of view of a businessman.
The assessee contends that in receiving this sum it was not carrying on its business,/which was to distribute films, but that it received this amount as and by way of compensation for not distributing those films, that is to say for not carrying on its business.
The sum was, according to the assessee, received by it in return for its ceasing to engage in the business of distributing those three films.
We do not think that is the intrinsic business of the matter.
Here was the assessee whose business was to distribute films, purchased or produced by itself or in respect of which it secured the distribution rights under agreements with the producers.
For the purpose of this distribution business the assessee obviously,had arrangements with the proprietors of different/cinema halls.
If any producer failed to deliver an film as agreed then the exigencies of the assessee 's business would certainly have required the assessee to treat that agreement as terminated by breach and to enter into another agreement for securing the distribution right in some other film so as to enable it to fulfil its engagement with the proprietors of the cinema halls by distributing the new film in the place of the one that had not been supplied.
Likewise if a particular film secured by the assessee failed to attract public enthusiasm, business exigencies might well have required the assessee to enter into an arrangement with the producers concerned to cancel the agreement for distribution of that film and to enter into another agreement with the same or other producers for acquiring the distribution right in another film likely to bring a better 230 box office collection.
The termination of the agreement in each of the circumstances hereinbefore mentioned could well be said to have been brought about in the ordinary course of business and money paid or received by the assessee as a result of or in connection with such termination of agreements would certainly be regarded as having been so paid or received in the ordinary course of its business and therefore a trading disbursement or trading receipt.
There was no covenant made by the assessee with Jupiter Pictures not to enter into agreements with other producers or not to distribute films secured from other producers.
In fact in the accounting year the assessee had distribution rights in respect of eleven films including these three.
These three agreements would have come to an end on the expiration of the period of five years from the respective dates of release of the films and had only a part of the period to run, a fact which may also be relevantly borne in mind.
The cancellation of these agreements must have left the assessee free, if it so chose to secure other films which could be distributed in the place of these films and/which might have brought in better box office collections, In the language of Lord Hanworth, M. R. in Short Bros., Ltd. vs The Com missioners of Inland Revenue(1) the sum paid to the assessee was not truly compensation for not carrying on its business but was a sum paid in ordinary course, of business to adjust the relation between the assesse and the producers of the films.
The agreements which were cancelled were by no means agreements on which the whole trade of the assessee bad for all practical purposes been built and the payment received by the assessee was not for the loss of such a fundamental asset as was the ship managership of the assessee in Barr, Crombie & Co., Ltd. vs Commissioners of Inland Revenue(2).
Nor can one say that the cancelled agreements constituted the framework or whole structure of the assessee 's profit making apparatus in the sense the agreement between the two margarine dealers concerned in Van Den Berghs (1) , 973.
(2) , 231 Ltd. vs Clark (Inspector of Taxes) (supra) was.
Here ' were three agreements entered into by the assessee in the ordinary course of his business along with several similar agreements.
These three agreements were by mutual consent put an end to.
The termination of these three agreements did not radically or at all affect or alter the structure of the assessee 's business.
Indeed the assessee 's business of distribution of films proceeded apace notwithstanding the cancellation of these three agreements.
Learned counsel for the assessee has, as did the High Court, strongly relied on the decision of the Privy Council in Shaw Wallace 's case (supra).
In that case there was no fixed period within which the distributing agency was to continue, whereas in the case before us the agreement was only for a fixed period of five years out of which a considerable part had already expired.
In Shaw Wallace 's case the entire distributing agency work was completely closed, whereas the termination of the agreements in question did not have that drastic effect on the assessee 's business at all.
His business of distribution of films continued notwithstanding the cancellation of these three agreements.
In Shaw Wallace 's case, therefore, it could possibly be said that the amount paid there represented a capital receipt.
It is pointed out that in Shaw Wallace 's case there were other agencies also which were continuing.
A reference to that case reported sub nom Shaw Wallace & Co. vs Commissioner of Income Tax, Bengal(1) will show that Shaw Wallace and Co. carried on business as merchants and managing agents of various companies and that they were also the distributing agents of the two oil companies as well.
The business of managing agency of a company is quite different from the business of distributing agency of the products of oil companies.
The different managing agencies in that case were entirely different from and independent of the distributing agency of the two oil companies and this aspect of the matter was emphasised (1) 31 232 by Sir George Lowndes towards the end of his judgment where he said: "It is contended for the appellant that the "business" of the respondents did in fact go on throughout the year, and this is no doubt true in a sense.
They had other independent commercial interests which they continued to pursue, and the profits of which have been taxed in the ordinary course without objection on their part.
But it is clear that the sum in question in this appeal had no connection with the continuance of the respondent 's other business.
The profits earned by them in 1928 were the fruit of a different tree, the crop of a different field".
If Shaw Wallace and Co. had other distributing agencies similar to those of the two oil companies then it would be difficult to reconcile the decision in that case with the later decisions in Kelsall all Parsons & Co. vs
Commissioners of Inland Revenue(1) and other cases.
It has been urged that the agreements did not create merely an agency for the distribution of the films but were composite agreements consisting partly of a financing agreement creating a security on the films for the monies to be advanced and conferring the right even to complete the films in case the producers failed to do so and partly of a distributing agency agreement giving the assessee the utmost latitude in the matter of the terms and conditions on which it could exploit and distribute the films.
It was argued that the rights acquired by the assessee under the agreements were in the nature of capital assets of the assessee 's business and the amounts received by the assessee were the prices or considerations for the sale or surrender of such capital assets or were received by way of compensation for the sterilization or destruction of those capital assets.
Kelsall Parsons & Co. 's case and Short Bros. ' case referred to above were sought to be distinguished on the ground that there the payments were made in respect of the cancellation of contracts directed to result in the making of the trading profits, whereas in the present case the cancelled agreements were directed to the acquisition (1) ; 233 of rights in the films which when worked were to yield profits.
The terms of the agreements summarised above clearly show that they constitute a financing agreement and a distributing agency agreement.
In so far as they were only financing agreements they gave the assessee a charge on the films to be produced with moneys advanced by it but gave it no right to distribute the films or otherwise work them for making income, profits or gains.
Therefore, it can hardly be said that by the financing agreements the assessee acquired capital assets for carrying on its distributing agency business.
In this respect the case differs from the case of Glenboig Union Fireclay Co. Ltd. vs Commissioners of Inland Revenue(1), for in that case the lease of the fire clay fields authorised the assessee who was a manufacturer of fire clay goods to extract fire clay and manufacture fire clay goods and consequently was a capital asset of the assessee 's business.
Further, in the present case there is no suggestion that any part of the moneys advanced by the assessee for the production of the films was outstanding.
Assuming that to start with the films constituted capital assets, the entire capital outlay had been recovered and the security had been extinguished and that part of the agreements which constituted financing agreements had been fully worked out and bad come to an end and the three films ceased to be capital assets and the assessee was holding the films only under that part of the agreements which consti tuted the distributing agency agreements which only were subsisting.
In the premises the amount received by the assessee was only so received "towards commission", that is to say, as compensation for the loss of the commission which it would have earned bad the agreements not been terminated.
In our opinion, in the events that had happened, the amount was not received by the assessee as the price of any capital assets sold or surrendered or destroyed or sterilized but in the language of Rowlatt J. in Short Bros. ' case (supra) the amount was simply received (1) 234 by the assessee in the course of its going distributing agency business from that going business.
In our judgment, on the facts and in the circumstances of the present case, it falls within the principles laid down in Short Bros. ' and Kelsall Parsons & Co. 's cases rather than within those laid down in Shaw Wallace 's case or Van Den Bergh 's case or Barr Crombie 's case.
Reference was made to section 10 (5 A) of the Indian Income Tax Act, 1922, and it was urged that the language of that sub section impliedly indicated that the sum of Rs. 26,000 (rupees twenty six thousand) was a capital receipt.
We are unable to accept this suggestion.
That sub section was obviously introduced to prevent the abuse of managing agency agreements being terminated on payment of huge compensation and to nullify the application of the decision in Shaw Wallace 's case to such cases.
But that sub section does not necessarily imply that if that sub section were not there the kind of payment referred to therein would have been treated as capital receipt in all cases.
For the reasons stated above the referred question should in our opinion have been answered in the affirmative and we answer it accordingly.
The appeal is, therefore, allowed with costs throughout.
WHAGWATI J.
I had the privilege of reading the judgment just delivered by my Lord the Chief Justice but I regret I cannot agree with the same.
The facts leading up to the present appeal have been fully set out in that judgment and it is not necessary to repeat the same.
The relevant portions of the agreement dated the 17th September 1941 which is the sample of the three agreements entered into between the Jupiter Pictures and the assessee may be, however, set out herein: "Whereas the producer has taken on hand the production of a Tamil talkie picture 'Kannagi ' hereinafter called the said picture. . and whereas for the purpose of the said production the producer has approached the distributors for financial assistance and 235 for the distribution and exploitation of the said picture by the distributors through their organization and the distributors have agreed to render such financial assistance by advancing to the producer altogether a sum of Rs. 57,000 on the terms and in the manner hereinafter appearing and.
to distribute and exploit the said picture through their organization as requested by the producer. . . . Cl. 1.
The distributors shall advance to the producer a sum of Rs. 57,000 only altogether in the manner hereinafter set out: (a) a sum of Rs. 7,000 only should be advanced on the execution of these presents; (b) a further sum of Rs. 5,000 should be advanced as soon as 5,000 feet of film shall have been completed and roughly edited, rushprint thereof shown; (c) a further sum of Rs. 10,000 should be advanced as soon as a further 10,000 feet of film shall have been completed; (d) a further sum of Rs. 10,000 should be advanced as soon as a further 15,000 feet of film shall have been completed; (e) a further sum of Rs. 12,000 should be advanced on the last shooting day of the picture; (f) a further sum of Rs. 10,000 should be advanced as soon as the picture is passed by the Board of Censors and 12 copies of the film delivered to the distributors; and the balance of Rs. 3,000 to be retained by the distributors to be utilised for the purpose of Press Publicity in regard to the said picture to be made by the distributors on behalf of the producer from time to time.
The distributors may utilise the said sum for publicity as they think fit and proper and at their sole discretion.
Cl. 3.
The distributors shall from the realisations of the said picture made by them: (a) pay themselves all amounts spent by them for publicity in respect of the said picture such an expenditure having been incurred only after obtaining the consent of the producer; (b) pay themselves their distribution commis 236 sion in respect of the said picture as hereinafter provided; and (c) pay themselves the available balance until the entire advance of Rs. 57,000 should be completely discharged and satisfied.
If the distributors should fail to realise the full amount due to them as aforesaid from the realisation of the said picture in the manner hereinbefore set out on or before the expiry of one and a half years from the date of the first release of the said picture, the producer shall be liable to pay to the distributors whatever balance may be then due by them with compound interest at 12 per cent.
per annum the said interest to be calculated on the said balance amount from the date of expiry of the said one and a half years and the said payment to be made before the expiry of one month therefrom.
Cl. 15.
And it is hereby expressly agreed by and between the distributors and the producer that until the entire amount of Rs. 57,000 to be advanced by the distributors should be repaid and discharged in full and all other claims of the distributors arising hereunder completely satisfied the negative and positive copies of the said picture shall constitute the security for whatever amount may be due to the distributors and shall, if in the possession of the producer or any one on his behalf, be held by them only as trustees for the distributors.
Cl. 19.
In the event of the producer failing to deliver the said copies of the said picture duly passed by the Board of Censors as hereinbefore provided before the said period, namely 1 5 1942, the producer shall become liable to pay to the distributors at the letters ' option such amount as has been advanced by the distributors to the producer including monies ,spent by the distributors in respect of publicity with interest thereon at 12 per cent.
per annum.
But if the said picture be not delivered within two months thereafter, viz., on or before 1 7 1942 the distributors may at their option complete the picture at their own cost and in such case the producer shall be liable to the distributors for all the expenses with compound 237 interest thereon at 12 per cent.
per annum and the distributors shall have all rights as to the distribution, sale, etc., as aforesaid.
Cl. 20.
On the expiry of the period of five years mentioned in this agreement, the distributors shall return to the producer all copies of films and balance stock of loan and saleable publicity materials of the said picture, subject to usual wear and tear and subject to the distributors receiving back from the producer such unrealised amount, if any, as mentioned in clause (6) above".
The said three agreements *were dated 17th September 1941, 16th July 1942 and 10th May 1945, each having a period of five years to run ending with 16th September 1946, 15th July 1947 and 9th May 1950 respectively.
The only question which falls to be determined by us herein is whether the payment of Rs. 26,000 received by the assessee from the Jupiter Pictures on the cancellation of the said three agreements on the 31st October 1945 is a capital receipt or income, profits or gains liable to tax in the assessment year 1946 47.
The assessee was no doubt carrying on the business of distributors which involved as a necessary corollary the acquisition of films for the purpose of distribution.
Those films could either be produced by it or could be acquired by it from the producers who hired them out to it for the purpose of distribution.
There was, however, an activity in this business of distributors which consisted of advancing monies to the producers to enable the producers to produce the films and the agreements which were entered into between the producers and the assessee as distributors were composite agreements incorporating therein the terms in regard to the financial assistance as also the distribution and exploitation of the films thus produce by the producers with the financial assistance rendered to them by the assessee.
They were not mere agreements for distribution and exploitation of the pictures which by themselves would not require any investment of capital but would 238 merely involve the work of distribution and exploitation of the pictures.
The terms above set out were designed for the purpose of protecting the interests of the assessee in so far as it advanced considerable sums to the producers for the purpose of producing the films.
Apart from the commission which the assessee derived from the distribution and exploitation of the pictures which would certainly be its revenue receipt in the course of the carrying on of its business as distributors, it was entitled under the terms of the agreements to repay itself the amounts of the advances which it made for the production of the pictures as also the interest thereon and the agreements also provided that the negative and positive".
, copies of the pictures should constitute the security for whatever amount might be due to the assessee not only in respect of the amounts advanced by it to the producers but also in respect of all other claims arising under the agreements.
The negative and positive copies of the pictures if in possession of the producers or any one on their/behalf would only be held by them as trustees of the assessee and the assessee was invested with a species of proprietary rights over the same.
If the pictures were not delivered within the specified period the assessee was at liberty to complete the same and in such a case the producers were liable to it for all the expenses with compound interest at 12 per cent.
per annum and all the rights as distributors were to fasten upon the same.
The copies of the films and all the other publicity materials were to be returned by the assessee to the producers after the expiry of the period of five years mentioned in the agreements subject to its receiving from the producers all unrealised amounts under the agreements.
What is it that the assessee was, acquiring from the producers under the terms of these agreements? Was it acquiring capital assets which it would work upon by way of distribution and exploitation in order to earn its income, profits or gains or was it acquiring stock in trade of its business as distributors? If it was capital assets which it thus acquired the monies 239 which it advanced to the producers for acquiring the same would necessarily be capital expenditure and would not be debited by it in its accounts as trading expenses which would be the position if what it, acquired under the terms of the agreements was mere stock in trade of its/business.
The realisations which it made by distribution and exploitation of the pictures would be undoubted trade receipts and, therefore, income, profits or gains and no part of the same would go to its capital account.
The monies which it had advanced for the production of the pictures would, however, as and when realised, be./ credited by it in its accounts as capital receipts and they would certainly not be liable to be treated as trading receipts.
There was thus a sharp distinction between the capital account and the trading account, the amounts advanced towards the production of the pictures being capital expenditure and the repayments of these advances as and when made being capital receipts, as distinct from the monies spent by it in the distribution and exploitation of the pictures being trading expenses and the commission realised by it from such distribution and exploitation being trading receipts.
As in the cases of mining leases and other species of proprietary rights obtained by an assessee being capital assets available to the assessee for working upon the same and earning income, profits or gains, so in the case of these pictures which it acquired by advancing monies to the producers to be available to it for distributing and exploiting the same, what it would be acquiring under the terms of the agreements would be capital assets and if an agreement was subsequently entered into by it either transferring these capital assets or surrendering them for value, whatever payment would be realised out of the same would be capital receipts and, not trading receipts.
The nomenclature of that receipt as commission for distribution and exploitation under the agreements would not make any difference to the position nor would the fact that, at the time when the said three agreements were.
cancelled.
, no part of the monies which had been advanced at the commence 32 240 ment remained outstanding and the only activity of the assessee qua these pictures was then confined to the distribution and exploitation of the same.
The agreements were composite agreements and what we have got to look to is what were the rights in these pictures which the assessee had acquired under the terms of the agreements.
It had a species of proprietary rights in these pictures all throughout the period of the agreements not only in respect of advances which it had made for producing the same but also in respect of all other claims under the terms of the agreements and the nature of those rights would not be changed by the accident of the full amount of the advances being repaid to it at a particular period of time during the currency of the agreements.
If it acquired capital assets those assets continued in its possession as such all throughout the period of the agreements and it would not be legitimate at any intermediate period of time to see what was the position obtaining at that time for the purpose of converting what were acquired as capital assets at the dates of the agreements into stock in trade of its business of distribution and exploitation of the pictures.
If this be the true position on the construction of the agreements it follows that what was done by the assessee on the 31st October 1945 was to surrender these capital assets to the producers for a consideration.
These capital assets qua the agreements of the 17th September 1941, 16th July 1942 and 10th May 1945 were to endure up to 16th September, 1946, 15th July 1947 and 9th May 1950 respectively.
A sum of Rs. 8,666 10 8 was fixed as the consideration for the surrender of each and the capital assets which had been acquired were all of them surrendered by the assessee to the producers with effect from the 31st October 1945.
The payment thus received by the assessee could only be a capital receipt being the price of the surrender of the capital assets and could not be considered a trading receipt at all.
It is well recognised that the problem of discriminating between an income receipt and a capital receipt 241 and between an income disbursement and a capital disbursement is not always easy to solve.
Even, though the distinction is well recognised and easily applied in general, cases do arise from time to time , where the item lies on the border line and the task of assigning it to income or capital becomes one of much refinement.
"While each case is found to turn upon its own facts, 'and no infallible criterion emerges, nevertheless the decisions are useful as illustrations and as affording indications of the kind of considerations which may relevantly be borne in mind in approaching the problem. . . . . .
The nature of a receipt may vary according to the nature of the trade in connection with which it arises.
The price of the sale of a factory is ordinarily a capital receipt, but it may be an income receipt in the case of a person whose business it is to buy and sell factories" (Per Lord Macmillan in Van Den Berghs, Ltd. vs Clark (H. M. Inspector of Taxes(1)).
It may also be borne in mind that the provisions of the Indian Income tax Act are not in pari materia with those of the English Income tax Statutes so that the decisions on the English Acts are in general of no assistance in construing the Indian Acts (Vide the observations of the Privy Council in Commissioner of Income tax vs Shaw Wallace & Co.(2) and in Raja Bahadur Kamakshya Narain Singh of Ramgarh vs Commissioner of Income tax, Bihar & Orissa(3)).
The authorities which were cited at the Bar may, however, be shortly referred to.
Counsel for the appellant particularly relied upon the decisions in Short Brothers, Ltd. vs The Commissioners of Inland Revenue(4) and Kelsall Parsons& Co. vs Commissioners of Inland Revenue(5) in support of the position that the cancellation of the agreements in the present case and the receipt of Rs. 26,000 by the assessee was in the ordinary course of business in order to adjust the relations between the producers and the assessee and was simply a receipt in the course of a (1) ; , 428, 431.
(2) [1932] L.R. 59 I.A. 206, 212.
(3) [1943] L.R. 70 I.A. 180, 188.
(4) (5) ; 242 going business from that going business and nothing else.
It was submitted that it was an essential part of the assessee 's business to enter into agreements of the nature in question and that it was an ordinary incident of its business that such agreements may be altered or terminated front , time to time.
It was therefore a normal incident of the business such as that of the assessee that the agreements might be modified and in parting with the benefits of the agreements the assessee could not be said to be parting, with something which could be described as an enduring asset of its business.
This position would have been tenable if the agreements in question were merely distributing agreements without anything more.
It would then have been an essential part of the assessee 's business to enter into such agreements and also it would have been a normal incident of its business to modify or terminate the same and to adjust the relations between the parties.
In neither of these cases was there any question of any capital asset having depreciated in value or become of less use for the purpose of the assessee 's business.
Rowlatt, J. observed in Short Brothers, Ltd. vs The Commissioners of Inland Revenue (supra) at page 968 that the money was not received in respect of the termination of any part of the assessee 's business nor was it received in respect of any capital asset as was the sum in the Glenboig 's case(1).
Lord Fleming also emphasized this aspect of the matter in Kelsall Parsons and Co. vs Commissioners of Inland Revenue (supra) at page 622 that there was no finding that in consequence of the termination, any capital asset was depreciated in value or became of less use for the purpose of the assessee 's business.
If the assessees in those cases bad by virtue of the agreements in question acquired capital assets which they could work in order to earn income, profits or gains, the payments received on termination of the said agreements would certainly not have been held to be trading receipts but capital receipts and as such not liable to tax.
(1) 243 Reliance was placed on behalf of the assessee on the decisions in Glenboig Union Fireclay Co. Ltd. vs Commissioners of Inland Revenue(1) and Van Den Berghs Ltd. vs Clark (H.M. Inspector of Taxes) (supra), for showing that, if the capital asset of the assessee was sterilized or destroyed, the payment would be a capital receipt.
Lord Buckmaster, in Glenboig Union Fireclay Co. Ltd. vs The Commissioners of Inland Revenue (supra) at page 463, expressed the opinion that "it made no difference whether it be regarded as the sale of the asset out and out, or whether it be treated as a means of preventing the acquisition of profit that would otherwise be gained.
In either case, the capital asset of the company was to that extent sterilized and destroyed and it was in respect of that action that the sum had been paid".
Lord Wrenbury also, at page 464 stated that "the mining leases were capital assets of the company, the company 's objects were to acquire profits by working the mines under and by virtue of the titles and rights which they hold under the leases and the payment was made to the assessee for abstaining from seeking to make a profit".
Put it in another way: "The right to work the area in which the working was to be abandoned was part of the capital asset consisting of the right to work the whole area demised.
Had the abandonment extended to the whole area all subsequent profit by working would.
, of course, have been impossible but it would be impossible to contend that the compensation would be other than capital.
It was the price paid for sterilising the asset from which otherwise profit might have been obtained.
What is true of the whole must be equally true of the part" ' (Page 465).
In Van Den Berghs Ltd. vs Clark (H. M. Inspector of Taxes) (supra) it was held that the payment in question was the payment for the cancellation of the assessee 's future rights under the agreements which constituted a capital asset of the assessee and that it was accordingly a capital receipt.
Justice Finlay, whose judgment was ultimately restored by the House of Lords, observed at page 413: (1) 244 The ground is not very easy to express, but the ground upon which I desire to put this part of the case is this, that the true view here is that the agreement which was cancelled was just a capital asset of, the Company and, if that is right, it seems to me to follow that, distinguishing such cases as Short Brothers(1), one ought to hold that the sum received was not an income receipt at all".
Lord Macmillan, after discussing the various authorities which according to him were useful as illustrations and as affording in dications of the kind of considerations which maybe relevantly borne in mind in approaching the problem, construed the agreements in question as not ordinary commercial contracts made in the course of the carrying on of the assessee 's trade.
The agreements in the facts and circumstances of the case before him related to the whole structure of the assessee 's profit making apparatus, they regulated the assessee 's activities, defined what they might and might not do and affected the conduct of their business and he had difficulty in seeing how money laid out to secure, or money received for the cancellation of, so fundamental an organization of a trader 's activities could be regarded as an income disbursement or an income receipt.
He expressed the opinion that the asset, the congeries of rights which the appellants enjoyed under the agreements and which for a price they surrendered, was a capital asset.
They provided a means of making profits but they themselves did not yield profits.
Applying the same ratio here, could it not be said that the pictures which were acquired by the assessee from the producers were capital assets of the assessee, the object of the assessee being to acquire profits by distributing and exploiting the pictures under and by virtue of the titles and rights which the assessee acquired under the agreements or that they provided the means of making profits though they themselves did not yield profits? That being the true position on the construction of the agreements, the only result would be that the pictures constituted capital assets (1) 245 of the company and the payment in question was one for the cancellation of the assessee 's rights under the agreements and was accordingly a capital receipt.
The distinction between capital assets on the one hand and the stock in trade on the other was sought to be supported by reference/to the decisions in Shad bolt (H. M. Inspector of Taxes) vs Salmon Estate (1) and Johnson (H. M. Inspector of Taxes) vs W. section Try Ltd. (2).
These were cases of assessees which carried on the business of building and selling houses or building and development business and in the course of their business acquired plots of land which they utilised for, the purpose of constructing buildings thereupon, which buildings together with the plots of land on which they stood were sold by them for a consideration.
The question which arose was whether the acquisition of the plots of land on which the buildings were thus constructed was the acquisition of a capital asset or a trading asset ,by the assessees.
Justice Macnaghten, whose judgment in the King 's Bench Division was the final judgment in Shadbolt (H. M. Inspector of Taxes) vs Salmon Estate (supra) remarked at page 57 that "it was not disputed that in the course of such a trade as this, the trade of building houses for sale, the land on which the houses were " built was part of the stock in trade of the business and was not a capital asset.
The land being thus a part of their stock in trade, the payment in question for the bit sold by the assessees would have been a trading receipt and the right to build on the plots was likewise a trading asset".
In Johnson (H. M. Inspector of Taxes) vs W. section TryLtd.
(supra), also, the judgment of the same learned Judge was the final judgment on the point in issue.
The following observations of the learned Judge at page 172 are very instructive: "Although in most cases land belonging to a trading company was part of its capital assets, in the case of a company engaged in ribbon development the land which is acquired for the purposes of such development is not part of its capital.
In such a case the land forms part of its stock in trade.
, just (1) (2) 246 as much as the materials which it buys for the purpose of erecting the buildings on it.
The cost of the land must come into its trading account as a trading expense.
If it sells the land the price must come into its trading account as a trading receipt.
And, likewise, compensation for injurious affection must also, in my opinion, be regarded as a trading receipt".
In the instant case also, the pictures, if produced by the assessee itself would have been capital assets of the assessee.
What the assessee did was that instead of producing the pictures itself it advanced monies to the producers for the purpose of producing the pictures which it acquired for the purpose of distribution and exploitation.
Nonetheless, the pictures thus acquired were capital assets of the assessee which it worked upon in carrying on its business of distribution and exploitation, the monies it spent on the acquisition of the pictures were thus capital expenditure and whatever monies were realised by it by working these capital assets were its capital receipts except of course the commission which it earned by distribution and exploitation of the pictures which certainly would be its trading receipts.
Having regard to the terms of these agreements it could certainly not be predicated of these pictures that they were its stock in trade so as to constitute the payment in question a trading receipt of the assessee.
Both the Income tax Appellate Tribunal and the High Court relied upon the decision of the Privy Council in commissioner of Income tax, Bengal vs Shaw Wallace & Co. (supra), and were of the opinion that the present case was covered by that decision.
On the facts of the case as set out in the above appeal it does not appear to be clear whether the two selling agencies there were the only selling agencies which had been acquired and worked by Shaw Wallace & Co., and it, is debatable under the circumstances whether the authority of that decision is not shaken by the decisions in Short Brothers ' case (supra) and Kelsall Parsons & Co. 's case (supra).
It is sufficient to observe that the agreements in the case of Shaw Wallace & Co. were not deemed to constitute capital 247 assets of the assessee and that aspect of the question was not at all considered by the Privy Council.
It is not, therefore, necessary to express any opinion on the correctness or otherwise of that decision in this case.
Having regard to all the circumstances adverted to above, it is, therefore, clear that the payment of Rs. 26,000 received by the assessee from the producers was in consideration of the surrender by the assessee of the capital assets which it had acquired from the producers under the three agreements in question and constituted a capital receipt not liable to tax for the assessment year 1946 47.
The answer given by the High Court to the referred question was, therefore, correct and I would dismiss the appeal with costs.
ORDER.
BY THE COURT: In accordance with the Judgment of the majority, the appeal is allowed with costs throughout.
| The appellant and four others were placed on their trial before the Assistant Sessions Judge of Sambalpur for offences under sections 120 B, 409, 477 A and 109, I.P.C. with having committed the offences of criminal conspiracy, criminal breach of trust in respect of Government property and falsification of accounts with a view to defraud the Government.
The appellant was the District Food Production Officer and the other four accused persons were agricultural sub overseers under the appellant and another agricultural sub overseer namely P. was examined at the trial as an approver.
The Assistant Sessions Judge convicted the appellant under all the three charges but acquitted the four sub overseers giving them the benefit of doubt.
The High Court in appeal allowed the appeal of the appellant in respect of charges under sections 409 and 477 A, I.P.C. but upheld his conviction and sentence in respect of the charge of conspiracy under section 120 B, I.P.C. observing that in respect of that charge the evidence given by the approver got corroboration from other independent evidence.
On appeal by special leave to the Supreme Court the main question for consideration was whether the ruling of the Supreme Court in the case of Topan Das vs The State of Bombay ([1955] 2 S.C.R. 881), governed the present case in view of the fact that the appellant was the only person out of the accused persons on trial who had been convicted of the offence of conspiracy under section 120 B, I.P.C. Held (i) that the case of Topan Das vs State of Bombay was, clearly distinguishable from the present case as in that case the only persons alleged to have been guilty of the offence of conspiracy 'Were the persons placed on trial.
There was no allegation nor any 207 evidence forthcoming that any other persons though not placed on trial, were concerned with the crime.
On the findings in that case, only one person, after the acquittal of the rest of the accused, was concerned with the crime and stood convicted of the charge of conspiracy.
As a person cannot be convicted of conspiring with himself to commit an offence, the Supreme Court gave effect to the.
contention that on the findings and on the evidence, as also on the charge in that case, the conviction could not be sustained.
But in the instant case on the findings of the courts below, apart from the persons placed on the trial, there was the approver who implicated himself equally with the other accused persons and a number of other prosecution witnesses as having been privy to the conspiracy.
And therefore the present case was not on all fours with the case of Topan Das vs State of Bombay.
(ii) The provisions of section 225, Cr.
P.C. were clearly applicable to the facts and circumstances of the present case.
It had not been shown how the omission to mention the name of the approver in the charge under section 120 B, I.P.C. had misled the appellant or had occasioned a failure of justice.
(iii) The provisions of section 537 of the Code of Criminal Procedure were equally applicable to the facts of the case.
As the appellant did not raise the point with reference to the alleged illegality or irregularity in the charge before the High Court it must be held, applying the Explanation to that section, that the omission in the charge bad not occasioned a failure of justice.
The contention that with the acquittal of the alleged conspirators no verdict of guilty against the appellant could be given, because the verdict would be regarded as repugnant in so far as it would amount to saying that there was a criminal agreement between the appellant and the others and none between them and him, the conviction of the appellant would amount to a similar repugnancy was without substance because the rule of English law as to the acquittal of an alleged conspirator when the conspiracy was said to be only between the two is based upon a rule of practice and procedure, namely that repugnancy or contradiction on the face of the record is a ground for annulling a conviction.
But such a repugnancy is not by itself a sufficient ground for quashing a conviction in India where the matter is governed by statutory law both as to the offence and the procedure for bringing the offender to justice.
In India there is no provision in the statutory law justifying an interference with a conviction on the ground of repugnancy in the record.
Topan Das vs State of Bombay ([1955] 2 S.C.R. 881), The Queen vs Manning ([1883] , The Queen vs Thompson ([1851] 16 Q.B. 832), The King vs Plummer ([1902] 2 K.B. 339), Kannangara Aratchige Dharmasena vs The King ([1951] A.C. 1), I. G. Singleton vs The King Emperor ([1924] , Dalip Singh vs State of Punjab ([1954] S.C.R. 145) and Kapildeo Singh v, The King ([1949 50] F.C.R. 834), referred to. 208
|
Appeals Nos.165 168 of 1956.
Appeals from the judgment and order dated March 22, 1955, of the Mysore High Court in Writ Petitions Nos. 20 to 22 and 25 of 1954.
788 H. N. Sanyal, Addl.
Solicitor General of India, R. Ganapathy Iyer and R. H. Dhebar, for the appellant.
A. V. Viswanatha Sastri, K. R. Choudhury and G. Gopalakrishnan, for the respondent.
April 28.
The Judgment of the Court was delivered by S.K. DAS J.
These four appeals brought by the Income tax Officer, Special Circle, Bangalore, on a certificate granted by the High Court of Mysore, are from the judgment and order of the said High Court dated March 22, 1955, by which it quashed certain proceedings initiated, and orders of assessment made, against the respondent assesse in the matter of reassessment of income tax for the years 1945 46, 1946 47, 1947 48, and 1948 1949.
The relevant facts are these.
The respondent K. N. Guruswamy was carrying on business as an excise contractor in the Civil and Military Station of Bangalore, hereinafter called the retroceded area, in Mysore.
He was assessed to income tax for each of the four years mentioned above under the law then in force in the retroceded area by the Income tax Officer having jurisdiction therein.
For 1945 46 the original assessment was made on February 12,1946, for 1946 47 on January 21, 1949, for 1947 48 on January 22, 1949, and for 1918 49 also sometime in the year 1949.
The tax so assessed was duly paid by the assessee.
On January 5, 1954, more than four years after, the Income tax Officer, Special Circle, Bangalore, served a notice on the assessee under section 34 of the Indian Income tax Act, 1922, for the purpose of assessing what was described as escaped ' or 'under assessed ' income chargeable to income tax for the said years.
The assessee appeared through his auditors and contested the jurisdiction of the Income tax Officer to issue the notice or make a re assessment under section 34 of the Indian Income tax Act, 1922.
On February 19, 1954, the Income tax Officer overruled the assessee 's objection, and made a re assessment order for the year 1945 46.
On February 25, 1954, the assessee filed four writ petitions in the Mysore High Court in 789 which he challenged the jurisdiction of the Income tax Officer to take proceedings under section 34 or to make an order of re assessment in such proceedings; he asked, for appropriate orders or writs quashing the pending proceedings for three years and the order of re assessment for 1945 46.
During the pendency of the cases in the High Court, the Income tax Officer was permitted to make an assessment order for 1946 47, subject to the condition that if the assessee succeeded in establishing that the Income tax Officer had no jurisdiction, that order would also be quashed.
The High Court heard all the four petitions together, and by its judgment and order dated March 22, 1955, allowed the writ petitions and quashed the proceedings in assessment as also the two orders of reassessment, holding that the Income tax Officer had no jurisdiction to initiate the proceedings or to make the orders of re assessment.
The High Court, however, granted a certificate that the cases were fit for appeal to this Court, and these four appeals have been brought on that certificate.
Before us, the appeals have been heard together and will be governed by this judgment.
For a clear understanding and appreciation of the issues involved in these appeals, it is necessary to set out, in brief outline, the political and constitutional changes which the retroceded area has from time to time undergone; because those changes had important legal consequences.
Under the Instrument of Transfer executed sometime in 1881, when there was installation of the Maharaja of Mysore by what has been called " the rendition of the State of Mysore ", the Maharaja agreed to grant to the Governor General in Council such land as might be required for the establishment and maintenance of a British cantonment and to renounce all jurisdiction therein.
Pursuant to that agreement, the retroceded area was granted to the Governor General in Council, and jurisdiction therein was exercised by virtue of powers given by the Indian (Foreign Jurisdiction) Order in Council, 1902, made under the Foreign Jurisdiction Act, 1890.
The laws administered in the area included various enactments made applicable thereto from time to 790 time by the promulgation of notifications made under the aforesaid Order in Council, and one of such enactments was the Indian Income tax Act, 1922.
The year 1947 ushered in great political and constitutional changes in India, which affected not merely what was then called British India but also the Indian States, such as Mysore etc.
The Indian Independence Act, 1947, brought into existence two independent Dominions, India and Pakistan, as from August 15, 1947.
The Act, however, received Royal assent on July 18, 1947.
Section 7 set out the consequences of the setting up of the two new Dominions: one such consequence was that the suzerainty of His Majesty over the Indian States lapsed, and with it lapsed all treaties, agreements etc., between His Majesty and the rulers of Indian States, including all powers, rights, authority or jurisdiction exercisable by His Majesty in an Indian State by treaty, grant, usage, suffrage etc.
In view of the aforesaid provision perhaps in anticipation of it, the retroceded area was given back to the State of Mysore on July 26, 1947 by a notification Made by the Crown Representative under the Indian (Foreign Jurisdiction) Order in Council, 1937.
This did not, however, mean that the Mysore laws at once came into force in the retroceded area.
On August 4, 1947, the Maharaja of Mysore enacted two laws: the Retrocession (Application of Laws) Act 1947, being Act XXIII of 1947, and the Retrocession (Transitional Provisions) Act, 1947 being Act XXIV of 1947.
The combined effect of these laws was this: all laws in force in the retroceded area prior to the the date of retrocession, which was July 26, 1947, continued to have effect and be operative in the retroceded area (vide section 3 of Act XXIII of 1947) and the Mysore officers were given jurisdiction to deal with proceedings under the laws in force prior to the date of retrocession (see section 12 of Act XXIV of 1947).
This state of affairs continued till June 30, 1948, on which date was promulgated the Mysore Income tax and Excess Profits Tax (Application to the Retroceded Area) (Emergency) Act, 1948, being Act XXXI of 1948.
Section 3 of this Act said 791 "Notwithstanding anything to the contrary in section 3 of the Retrocession (Application of Laws) Act, 1947, (i) the Mysore Income tax Act, 1923, and (ii) the Mysore Excess Profits Tax Act, 1946, except sub section (4) of section 2, and all rules, orders and notifications made or issued tinder the aforesaid Acts and for the time being in force shall with effect from the first day of July, 1948, and save as otherwise provided in this Act, take effect in the Retroceded Area to the same extent and in the same manner as in the rest of Mysore.
" Section 6 said " Subject to the provisions of this Act, the Indian Income tax Act, 1922, and the Excess Profits Tax Act, 1940, as continued by the Retrocession (Application of Laws) Act, 1947, are hereby repealed.
" The repeal of the Indian Income tax Act, 1922, effected by section 6 aforesaid, was subject to other provisions of Act XXXI of 1948, and one such provision which is material for the dispute before us was contained in section 5, the relevant portion whereof was in these terms " section 5.
Notwithstanding anything to the contrary in the Mysore Income tax Act, 1923, or the Mysore Excess Profits Tax Act, 1946, (a). . . . . . . . . . (b)in respect of the total income or profits chargeable to income tax or excess profits tax in the Retroceded Area prior to the first day of July, 1948, but which has not been, assessed until that date, the provisions of the Indian Income tax Act, 1922,and the Excess Profits Tax Act, 1940, as in force in the Retroceded Area immediately before that date shall apply to proceedings relating to the assessment of such in come or profits until the stage of assessment, and the determination of the income tax and excess profits tax payable thereon, and the Mysore Income tax Act, 1923, or the Mysore Excess Profits Tax Act, 1946, as the case may be, shall apply to such proceedings after that stage ; 101 792 (c). . . (d). . . (e). . .
The effect of sections 3, 5 (b) and 6 of Mysore Act, XXXI of 1948, inter alia, was that though the Indian Incometax Act, 1922, stood repealed and the Mysore Incometax Act, 1923, came into effect from July 1, 1948 the former Act as in force in the retroceded area prior to July 1, 1948, continued to apply in respect of the total income chargeable to income tax in the retroceded area prior to July 1, 1948 but which had not been assessed until that date, and it further applied to all proceedings relating to the assessment of such income until the stage of assessment and the determination of incometax but the Mysore Act, 1923, applied to such proceedings after that stage.
On August 5, 1948, was promulgated the Retroceded Area (Application of Laws) Act, LVII of 1948, which came into effect from August 15, 1948.
Sections 3 and 4 of Act LVII of 1948, are material for our purpose and may be quoted "section 3.
Except as hereinafter in this Act provided, (3) all laws in force in Mysore shall apply to the Retroceded Area; and (b)the laws in force in the Retroceded Area immediately before the appointed day shall not, from that day, have effect or be operative in the Retroceded Area,." " section 4.
The enactments in force in Mysore which are set out in the first column of Schedule A to this Act shall apply to the Retroceded Area subject to the modifications and restrictions specified in the second column of the said Schedule and, the provisions of this Act.
" Schedule A, paragraph (2), sub paragraph (b) repeated ' in substance what was stated earlier in section 5 (b).
of Act XXXI of 1948.
It read " 2.
Notwithstanding anything to the contrary in the Mysore.
Income tax Act, 1923, or the Mysore Excess Profits Tax Act, 1946 (a). . . . 793 (b) in respect of the total income or profits chargeable to income tax or excess profits tax in the Retroceded Area prior to the first day of July 1948, but which has not been assessed until that date, the provisions of the Indian Income tax Act, 1922, and the Excess Profits Tax Act, 1940, as in force in the Retroceded Area immediately before that, date shall apply to proceedings relating to the assessment of such income or profits until the stage of assessment, and the determination of the income tax and excess profits tax payable thereon, and the Mysore Incometax Act, 1923, or the Mysore Excess Profits Tax Act, 1946, as the case may be, shall apply to such proceedings after that stage; " There were further far reaching political and constitutional changes in 1949 50.
The Maharaja of Mysore had acceded to the Dominion of India in 1947; this, however, did not empower the Dominion legislature to impose any tax or duty in the State of Mysore or any part thereof.
By a proclamation dated November 25, 1949, the Maharaja of Mysore accepted the Constitution of India, as from the date of its commencement, as the Constitution of Mysore, which superseded and abrogated all other constitutional provisions inconsistent therewith and in force in the State.
On January 26, 1950, the Constitution of India came into force, and Mysore became a Part B State within the Constitution of India.
On February 28, 1950, there was a financial agreement between the Rajpramukh of Mysore and the President of India in respect of certain matters governed by articles 278, 291, 295 and 306 of the Constitution.
Under article 277 of the Constitution, however, all taxes which immediately before the commencement of the Constitution were being levied by the State continued to be so levied, notwithstanding that those taxes were mentioned in the Union List, until provision to the contrary was made by Parliament by law.
Such law was made by the Finance Act, 1950, by which the whole of Mysore including the retroceded area became " taxable territory " within the meaning of the Indian Income tax Act, 1922, from April 1, 1950, and the 794 Indian Income tax Act again came into force in the retroceded area from the aforesaid date.
Section 13 of the Finance Act, 1950, dealt with repeals and savings.
As the true scope and effect of sub section
(1) of section 13 is one of the questions at issue before us, it is necessary to read it.
" If immediately before the 1st day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of CoochBehar any law relating to income tax or super tax or tax on profits of business that law shall cease to have effect except for the purposes of the levy, assess ment and collection of income tax and super tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income tax Act, 1922, for the year ending on the 31st day of March, 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949: Provided that any reference in any such law to an officer, authority, tribunal or court shall be construed as a reference to the corresponding officer, authority, tribunal or court appointed or constituted under the said Act, and if any question arises as to who such corresponding officer, authority, tribunal or court is, the decision of the Central Government thereon shall be final.," Now, the legal effect of the constitutional changes referred to above, so far as it has a bearing on the present dispute, may be briefly summarised as follows: the Indian Income tax Act, 1922, remained in force in the retroceded area till June 30, 1948 ; from July 1, 1948, the Mysore Income tax Act, 1923, applied, subject to this saving that the Indian Income tax Act continued to apply in respect of the total income chargeable to income tax in the retroceded area prior to July 1, 1948, and the provisions of that Act as in force in the retroceded area prior to that date applied to all proceedings relating to the assessment of such income 795 upto the stage of assessment and determination of income tax payable thereon.
This position continued till April 1, 1950, when the Finance Act, 1950, came into force and the Indian Income tax Act, 1922, again came into force in the retroceded area, subject to the saving mentioned in section 13(1) thereof.
The principal question before us, as it was before the High Court, is one of jurisdiction.
Did the Income tax Officer concerned have jurisdiction to issue the notice under section 34 of the Indian Income tax Act, 192 and to make a re assessment order pursuant to sue notice ? The High Court pointed out that though the notice did not clearly say so, the Income tax Officer clearly acted under section 34 of the Indian Income tax Act, 1922, as it was in force in the retroceded area prior to July 1, 1948, and the writ applications were decided on that footing.
The four main lines of argument on which the respondent assessee rested his contention that the Incometax Officer concerned had no jurisdiction were these : firstly, it was urged that section 34 of the Indian Incomtax Act, 1922, was not saved by section 13(1) of the Finance Act, 1950, because what was saved was the prior law " for the purposes of the levy, assessment and collection of income tax ", which expression did not include re assessment proceedings; secondly, it was argueed that, even otherwise, the financial agreement made between the President of India and the Rajpramukh of Mysore on February 28, 1950, which received constitutional sanctity in article 278 of the Constitution rendered the impugned proceedings unconstitutional and void; thirdly, it was submitted that the Indian Income tax Act, 1922, as in force in the retroceded area stood repealed on June 30, 1948, by Mysore Act XXXI of 1948, and the saving provisions in section 5(b) thereof or in paragraph (2), sub paragraph (b), of Schedule A to Mysore Act LVII of 1948, did not save section 34 in so far as it permitted re assessment proceedings in respect of years in which there had been an assessment already; and lastly, it was contended that after June 30, 1948, and until April 1, 1950, the Income tax Officer in the retroceded area could re open 796 the assessment under section 34 of the Mysore Incometax Act, 1923, within a period of four years specified therein, but there was no authority to re open the assessment under section 34 of the Indian Income tax Act.
Following its own decision, City Tobacco Mart and Others vs Income tax Officer, Urban Circle, Bangalore (1), on certain earlier writ petitions (nos. 52 and 53 of 1953 and 105 and 106 of 1954), the High Court held in favour of the assessee on the construction of section 13 (1) of the Finance Act, 1950 and also oil the effect of the saving provisions in section 5 (b) of Mysore Act XXXI of 1948, and paragraph (2), sub paragraph (b) of Schedule A to Mysore Act LVII of 1948.
On these findings, it held that the Income tax Officer concerned had no jurisdiction or authority to start the impugned pro ceedings or to make the impugned orders of assessment.
It did not feel called upon to pronounce on the validity of the argument founded on the financial agreement dated February 28, 1950.
In Civil Appeals 143 145 of 1954, Civil Appeals 27 to 30 of 1956 and Civil Appeals 161 to 164 of 1956, Lakshmana Shenoy vs The Income tax Officer, Ernakulam (2), in which judgment has been delivered today, we have fully considered the arguments as to the true scope and effect of section 13(1) of the Finance Act, 1950, and of the financial agreement of February 28, 1950, taken along with the recommendations of the Indian States Finances, Enquiry Committee.
We have held therein that the expression I levy, assessment and collection of income tax in section 13 (1) is wide enough to comprehend re assessment proceedings under section 34 and that the financial agreement aforesaid, on a true construction of the recommendations of the Enquiry Committee, does not render the impugned proceedings Unconstitutional and void.
That decision disposes of these two arguments in the present appeals.
The two additional points which remain for consideration depend on the interpretation to be put on the saving provisions in section 5(b) of Mysore Act XXXI of 1948 and paragraph (2), sub paragraph (b) of Schedule (1) A.I.R. 1955 MYS.
(2) [1959] S.C.R. 751.
797 A to Mysore Act LVII of 1948.
These provisions are expressed in identical terms, and the question is if they save section 34 of the Indian Income tax Act with regard to re assessment proceedings.
We think that they do.
It is worthy of note that the saving provisions say that the Indian Income tax Act, 1922, as in force in the retroceded area prior to July 1, 1948, shall apply in respect of the total income chargeable to income tax prior to that date and it shall apply to proceedings relating to the assessment of Such income, until the stage of assessment and determination of income tax payable thereon. 'Total income ' means the total amount of income, profits and gains computed in the manner laid down in the Act, and there are no good reasons why the word 'assessment ' occurring in the saving provisions should be restricted in the manner suggested so as to exclude proceedings for assessment of escaped income or under assessed income.
On behalf of the assessee our attention has been drawn to the words "in respect of the total income chargeable to income tax. . but which has not been assessed until that date " occurring in the saving provisions and the argument is that, those words show that there was no intention to permit reopening of assessments which had been made already.
We are unable to accept this argument.
In its normal sense, I to assess ' means 'to fix the amount of tax or to determine such amount '.
The process of re assessment is to the same purpose and is included in the connotation of the term " assessment ".
The reasons which led us to give a comprehensive meaning to the word " assessment " in section 13 (1) of the Finance Act, 1950, operate equally with regard to the saving provisions under present consideration.
We agree with the view expressed in Hirjibhai Tribhuvandas vs Income tax Officer, Rajnandgaon and another (1), that section 34 of the Income _tax Act contemplates different cases in which the power to assess escaped income has been given; where there has been no assessment at all, the, term " assessment " may be appropriate and where there was assessment at too low a rate or with (1) A.I.R. 1957 M.P. 171.
798 unjustified exemptions, the term re assessment ' may be appropriate, and it may have been necessary to use two different terms to cover with clarity the different cases dealt with in the section ; but this does not mean that the two terms should be treated as mutually exclusive or that the word 'assessment ' in the saving provisions should be given a restricted meaning.
The object of the saving provisions was obviously to make the prior law available in all cases in which the income was assessed or was assessable according to that law before July 1, 1948, and it is difficult to see why only a part of the process of assessment should be saved and the other part repealed.
We, therefore, hold that the saving provisions save section 34 of the Indian Income tax Act, 1922, in its entirety, as it was in force in the retroceded area prior to July 1, 1948, and the contention of the respondent that it stood repealed from that date is not correct.
As to the period of limitation, it would be the period laid down in section 34 of the Indian Income tax Act as it was in force in the retroceded area prior to July 1, 1948.
The result, therefore, is that these appeals succeed and the judgment and order of the High Court of Mysore dated March 22, 1955, are set aside and the writ petitions filed by the respondent assessee are dismissed.
The appellant will get his costs in this Court and the High Court.
Appeals allowed.
| The respondent was carrying on business as an excise con tractor in the Civil and Military Station of Bangalore in the State of Mysore, called the retroceded area.
The jurisdiction ' over this area was originally exercised by the Governor General in Council by virtue of an agreement with the Maharaja of Mysore, and the income tax law applicable was the Indian Income tax Act, 1922.
On July 26, 1947, the retroceded area was given back to the State of Mysore but the income tax law in force in that area prior to that date continued to have effect and be operative till June 30, 1948, on which date was promulgated the Mysore Income tax Act and Excess Profits Tax (Application to the Retroceded Area) (Emergency) Act, 1948, the effect of which was that the Indian Income tax Act, 1922, stood repealed and the Mysore Income tax Act, 1923, came into force subject to certain saving provisions.
On August 5, 1948, was promulgated the Retroceded Area (Application of Laws) Act, 1948.
Between 1947 and 1950 there were political and constitutional changes which ultimately resulted in Mysore becoming a Part B State within the Constitution of India.
The legal effect of these changes was that the income tax law applicable to the retroceded area till June 30, 1948, was the Indian Income tax Act, 1922 ; from July 1, 1948, the Mysore Income tax Act, 1923, became applicable except that the Indian Income tax Act continued to apply in respect of the total income chargeable to income tax in the retroceded area prior to July 1, 1948, and the provisions of that Act as in force in the retroceded area prior to that date applied to all proceedings relating to the assessment of such income upto the stage of assessment and determination of income tax payable thereon.
This position continued till April 1, 1950, when the Finance Act, 1950, came into force and as a result the Indian Income tax Act, 1922, became applicable again to the retroceded area, subject to the saving provisions of section 13(1) of the former Act.
In respect of the assessment for the four years between 1945 and 1949, the respondent was assessed to income tax under the law then in force in that area; subsequently, in 1954 the Income tax Officer served a notice on the respondent under section 34 of the Indian Income tax Act, 1922, for the purpose of assessing " escaped " or " under assessed " income chargeable to income tax for the said years.
The respondent challenged the jurisdiction of the Income tax Officer to take proceedings under section 34 or to make an order of re assessment on the grounds inter alia (1) that section 34 Of the Indian Income tax Act, 1922, was not saved by section 13(1) of the Finance Act, 1950, because what was saved was the prior law " for the purposes of the levy, assessment and collection of income tax ", which expression did not include re assessment proceedings, (2) that the 787 financial agreement made between the President of India and the Rajpramukh of Mysore dated February 28, 1950, rendered the impugned proceedings unconstitutional and void, (3) that the Indian Income tax Act, 1922, as in force in the retroceded area stood repealed on June 30, 1948, by the Mysore Income tax and Excess Profits (Application to the Retroceded Area) (Emergency) Act, 1948, and the saving provisions in section 5(b) thereof or in para (2), sub para (b) of Sch.
A to the Retroceded Area (Application of Laws) Act, 1948, did not save section 34 in so far as it permitted re assessment proceedings in respect of years in which there had been an assessment already, and (4) that after June 30, 1948, and until April 1, 1950, the Income tax Officer in the retroceded area could re open the assessment under section 34 Of the Mysore Income tax Act, 1923, within a period of four years specified therein, but there was no authority to re open the assessment under section 34 Of the Indian Income tax Act.
Held : (1) that the expression " levy, assessment and collection of income tax " in section 13(1) Of the Finance Act, 1950, was wide enough to comprehend re assessment proceedings under section 34 Of the Indian Income tax Act, 1922, and that the financial agreement between the President of India and the Rajpramukh of Mysore, on a true construction of the recommendations of the Indian States Finance Enquiry Committee, did not render the impugned proceedings unconstitutional or void ; Lakshmana Shenoy vs The Incomc tax Officer, Ernakulam, [1959] S.C.R. 751, followed.
(2) that the saving provisions in the Mysore Income tax and Excess Profits (Application to the Retroceded Area) (Emergency) Act, 1948, and the Retroceded Area (Application of Laws) Act, 1948, made the prior law available in all cases in which the income was assessed or was assessable according to that law before July 1, 1948, and, therefore, they saved section 34 of the Indian Income tax Act, 1922, with regard to re assessment proceedings ; City Tobacco Mart and Others vs Income tax Officer, Urban Circle, Bangalore, A.I.R. 1955 Mys.
49, overruled.
Hirjibhai Tribhuwandas vs Income tax Officer, Rajnandgaon and another, A.I.R. 1957 M. P. 171, approved.
(3) that the Income tax Officer had the authority to re open the assessments in the present case because the period of limitation was that laid down in section 34 of the Indian Income tax Act, as it was in force in the retroceded area prior to July 1, 1948.
|
Civil Appeal Nos.
1993 1994 or 1977.
Appeals by Special Leave from the Judgment and Order dated 22 3 77 of the Madras High Court in C.M.P. Nos.
3449 and 3563 of 1976.
M.R.M. Abdul Karim and section Shaukat Hussain for the Appellant.
A. K. Sen (In C.A. 1993), Mrs. Shyamala Pappu (C.A. 1994), and A. V. Rangam for the Respondent.
It is the art of the great either who with a line reveals infinity.
It is the art of the great dramatist who with a significant word shakes the soul.
Schiller, said Coleridge, burns a city to create his effect of terror: Shakespeare drops a handkerchief and freezes our blood.
For this exquisite reason, brevity is the soul of art and justicing including judgment writing, must practise the art of brevity, especially where no great issue of legal moment compels long exposition.
Therefore, we mean to be brief to the bare bones, with a few facts here and a brief expression of law there, by adopting the technique which "is simply the perfect economy of means to an end".
For another reason also the need for parsimony exists.
The court is in crisis, docket logged and fatigued.
A judgment can be brief but not a blank and there is no reason to repeat the details of a case where there is an exhaustive statement in the judgment under appeal, as in this case.
We adopt these long pages of judicial manuscript and abbreviate our conclusion in a few pages.
The appellant plaintiff, a woman was on terms of intimacy with the respondent defendant, a wealthy man who had enjoyed a long and intimate relationship with her.
The respondent owned a lovely mansion on the Marina in Madras which he agreed to sell to the appellant for a consideration of around Rs. 4 lakhs way back in April 1967.
This was subject to an equitable mortgage over the property in favour of the South Indian Bank, Coimbatore.
When the two separated litigation erupted.
A suit for specific performance of the agreement to sell was brought where both sides took up unrighteous positions, and 295 the trial court (the original side of the High Court of Madras) decreed the suit directing the plaintiff to deposit the mortgage amount plus Rs. 5,000 with interest at 11 per cent till the date of payment.
The whole consideration, except the mortgage amount and a sum of Rs. 5,000 had already been paid at the time of the agreement and possession had been made over to the plaintiff by the defendant.
The decree also provided that the amount should be deposited into court by the time specified therein, failure to do which would result in the suit itself being dismissed.
The amount was not deposited within the time limited but some months later the plaintiff paid the mortgage money to the mortgagee bank and took an assignment of its rights and got herself impleaded as second plaintiff in the suit which, by then, had been instituted by the bank against the present defendant (O.S. No. 154 of 1968).
Eventually, the mortgage suit resulted in a decree in favour of the present plaintiff (second plaintiff therein); and the amount now due has, by now, swollen to around Rs. 11 lakhs or so.
An appeal had been carried by the plaintiff appellant to a Division Bench of the High Court which rejected most of her contentions except one.
The court, while affirming that the direction to make a deposit into court within three months was valid, vacated the default clause, namely, the dismissal of the suit on non payment within the time.
Read in the light of Section 28 of the Specific Relief Act and the rulings on the point which were cited before us, the proper course in this situation was to pass a decree for specific performance, which would, for all practical purposes, be a preliminary decree.
The suit would continue and be under the control of the court until appropriate motion was made by either party for passing a final decree.
The plaintiff appellant moved the court by interlocutory applications for giving credit to the amount paid by her to the mortgagee bank and to pass a final decree in her favour.
That was not granted.
Various skirmishes, essentially of an interlocutory nature, took place.
Ultimately, on two applications, one by the plaintiff appellant and the other by the defendant respondent the court made a judgment which is the subject matter of this appeal.
The plaintiff 's application was dismissed and extension of time by way of adjustment of the mortgage amount paid was refused and a decree for recession of the contract for sale was passed and for delivery of possession with mesne profits.
It is perfectly open to the court in control of a suit for specific performance to extend the time for deposit, and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour.
The disentitling circumstances relied upon by the defendant respondent are off set by the false pleas raised in the course of the 296 suit by him and rightly negatived.
Nor are we convinced that the application for consideration and extension of time cannot be read, as in substance it is, as a petition for more time to deposit.
Even so, specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief.
The final end of law is justice, and so the means to it too should be informed by equity.
That is why he who seeks equity shall do equity.
Here, the assignment of the mortgage is not a guideless discharge of the vendor 's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation misfires.
To sterilise this decree is necessary equity to which the appellant must submit herself before she can enjoy the fruits of specific performance.
In the present case, with all that has been said by both sides and we have heard at great length arguments by Shri Abdul Karim for the appellant and Shri A. K. Sen and Smt.
Shyamala Pappu for the respondents it is clear that an opportunity for the appellant to deposit into court the amount directed by the trial court, together with interest down to date at 11 per cent., should be accorded.
We are not discussing the principles of law as they are well settled and do not require reiteration.
The equitable terms we have adverted to earlier must be remembered in this context.
The appellant who was bound to discharge the mortgage acted contrary to the agreement because, instead of paying the mortgage money and extinguishing the mortgage (which was, perhaps, a pardonable exercise, in lieu of deposit into court) she, under some ill advice took an assignment of the equitable mortgage with a view to using it against the respondent.
Surely, this was not consistent with the understanding assumed under the contract.
This justifies the view of the High Court that as a price for the indulgence of being allowed to deposit long after the due date was over the unrighteous advantage gained by taking an assignment of the mortgage should be nullified.
In brief, while the appellant may be allowed to deposit the amount due under the agreement, viz., Rs. 3,45,000 together with interest at 11 per cent.
from April 1967 upto date, the mortgage decree in her favour must be extinguished, save to the extent of the cash then paid.
The High Court expressed a slightly drastic though similar view, somewhat loosely, thus: After we have expressed our opinion and dictated this order, the learned counsel for the Plaintiff orally requests us to permit the Plaintiff to deposit the entire amount as directed by the learned trial Judge in the Court.
Having regard to the 297 fact that no such stand was taken at any earlier stage and this request has been orally made only after we have dictated this order, we do not see any justification whatever for complying with this request.
We may also point out that there is no actual undertaking given by the plaintiff herself that even if we give such an opportunity to the Plaintiff to deposit the sum of Rs. 3,45,000 into this Court now, she will give up her right under the mortgage decree, which she has obtained against the defendant in the present suit in O.S. No. 154 of 1968.
(emphasis added) We agree with the substance of this direction, but without going that far pass a conditional decree.
We should have taken long pages and elaborate argument in substantiation of the course we adopt, but for reasons adduced at the very beginning, we decline to do so.
We gather that in many jurisdictions the highest Court, which hears the arguments at enormous length and has the advantage of a complete statement of facts and discussion of law in the judgment under appeal, limits itself to a severe economy of words in the statement of its reasoning.
We regard this as a wholesome step.
Natural justice necessitates full hearing, not a flood of words of forbidding length.
We direct that a decree be passed that the plaintiff appellant do deposit within six months from to day the entire sum of Rs. 3,45,000 together with interest due upto date at the rate of 11 per cent.
, together with an undertaking that she would give up all her rights under the mortgage decree passed in her favour in O.S. No. 154 of 1968, except to the extent of the amount actually paid to the South Indian Bank for taking the assignment.
If these two conditions are fulfilled, the appeal will stand allowed and a final decree for specific performance passed.
In the event of non compliance with either of these conditions the appeal will stand dismissed with costs.
| In 1967 the respondent agreed to sell his house to the appellant for a sum of Rs. 4 lakhs which then was subject to an equitable mortgage in favour of a bank.
The trial court decreed the suit for specific performance directing the plaintiff to deposit the mortgage amount within a specified time with interest at 11 per cent till the date of payment and that failure to pay the amount would result in the suit being dismissed.
At the time of the agreement the plaintiff paid the whole consideration except the mortgage amount and obtained possession of the house.
The plaintiff did not deposit the mortgage amount within the prescribed time.
She paid the mortgage money to the bank some months afterwards and took an assignment of its rights.
In the suit filed by the bank against the defendant she got herself impleaded as second plaintiff.
Eventually the mortgage suit resulted in a decree in favour of the appellant.
By this time the amount had swollen to Rs. 11 lakhs.
On appeal a division bench of the High Court vacated the default clause.
The plaintiff 's application for giving credit to the amount paid by her to the mortgage bank and to pass a final decree in her favour was not granted by the High Court.
The High Court ultimately passed a decree for recession of the contract for sale and for delivery of the possession with mesne profits.
^ HELD: The High Court should pass a decree that the plaintiff appellant should deposit within six months the entire consideration together with interest due upto date at the rate of 11 per cent together with an undertaking that she would give up all her rights under the mortgage decree passed by the High Court, except to the extent of the amount actually paid to the bank for taking the assignment.
[297 E] It is open to the court in control of a suit for specific performance to extend the time for deposit and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour.
The disentitling circumstances relied upon by the defendant are offset by the false pleas raised in the course of the suit by him and rightly negatived.
Specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief.
[295 H] In the instant case the assignment of the mortgage is not a guileless discharge of the vendor 's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation fails.
The appellant acted contrary to the agreement because instead of paying the mortgage money and extinguishing the mortgage she took an assignment of the equitable mortgage with a view 294 to use it against the respondent.
This was not consistent with the understanding assumed under the contract.
[296 C]
|
ivil Appeal Nos.
2646 52 of 1986.
From the Judgement and order dated the 12.10.1981 of the Punjab and Haryana High Court in Regular First Appeal Nos. 758, 760, 787, 814, 769, 1011 and 789 of 1979.
Govind Mukhoty, R.P. Bhatt, D.K. Garg, Prem Malhotra, K.C. Sharma and R.C. Kaushik for the Appellants.
S.P. Goel and Mahabir Singh for the Respondents.
The Judgement of the Court was delivered by PUNCHHI, J.
This bunch of appeals and special leave petitions are at the instance of the dissatisfied land owners whose lands were acquired in bulk by the State of Haryana, in the town of Hissar, for establishing a residential cum commercial complex.
The land totalled approximately 331 acres.
The Acquisition Collector appointed to determine the compensation belted the land in three parts awarding for block `A ' compensation at the rate of Rs. 4.13 per sq.
; for block `B ' at the rate of Rs. 2.43 per sq.
and for block `C ' at Rs. 1.65 per sq. yd.
The dissatisfied claimants took the matter in reference to the Addl.
District Judge, Hissar who maintained the belting, but raised the compensation for block `A ' to Rs. 10 per sq.
, block `B ' to Rs. 6 per sq.
and block `C ' to Rs. 4.50 per sq.
When the matter was taken up in First Appeal before the High Court, it was persuaded to wipe out `C ' and confine it to belting `A ' & `B '.
The entire evidence was considered by the High Court meticulously to come to the conclusion that belt `A ' should fetch compensation at the rate of Rs. 23 per sq.
and belt `B ' Rs. 16 per sq.
Still 3 not satisfied the claimants/appellants by special leave have approached this Court for further enhancement.
The goal of the appellants is that the belting as such should go and the land should uniformally be assessed to compensation at the rate of Rs. 42 per sq.
The foundation for the argument in the first instance is that the acquired land comprises of a large area, situated alongside the G.T. Road leading from Delhi to Hissar town in a strip approximately 3 kms.
in length on the other side of which was the railway line.
It was also commented that the belting had been done in a haphazard way.
Keeping in regard the nature of the land, it was asserted that the land having been acquired for building purposes, its quality as agricultural land should not have weighed with the courts below and compensation should have assessed uniformally space wise.
These arguments does not appeal to us.
Though the acquisition of ground space is the object in view, yet the tiller 's affect to keep his land more productive cannot be lost sight of in awarding compensation.
In fact the belting has kept in regard the quality of the land.
This is the reason for its appearing to be a haphazard line on the plan.
On the second limb of the argument, that it should have fetched uniform rate of compensation, we find no supportive material on record and done has been pressed before us on which we could change the decision, merely on the comment that belting is normally not resorted to.
We are not persuaded in the instant case to discard the belting system and lean towards uniformity.
The rate of Rs. 42 per sq.
is claimed on the basis that a part of land measuring about 125 sq.
which formed part of the acquired land, was, before the acquisition, purchased by a purchaser at the rate of Rs. 42 per sq.
and that was an indication that the land acquired would have fetched Rs. 42 per sq.
The High Court had rejected the contention of the appellants taking the twin view that firstly the land involved was small in measure and secondly it was fully constructed having a house and a godown facing the G. T. Road itself.
We find this reasoning sound.
Having not been able to persuade us, each of learned counsel for the appellants differently putforth that the sole instance which the High Court had rejected had later been relied by it in another case pertaining to other land under acquisition under the same notification and having awarded the rate of Rs. 42 per sq.
We regret our inability to entertain the argument because there is nothing on record to support the same.
The judgement in which such view has statedly been taken has not been brought on record as a piece of evidence to be relied upon by the claimants and no permission has 4 been sought to adduce additional evidence.
The said judgement cannot be used as a precedent even to persuade us to take the view that the rate should be Rs. 42 per sq.
for belt `A ' if not uniformally.
All these factors cumulatively lead us to the view that appellants have no case for enhancement and have been adequately compensated for the land acquired.
No interference is thus required in the instant case.
Accordingly for the view above taken, we dismiss the appeals as also the special leave petitions.
I.A. for condonation of delay in SLP unnumbered titled Kanhya Lal vs State of Haryana, is dismissed as withdrawn at the askance of the learned counsel for the appellant.
There shall be no order as to costs in all these cases.
V.P.R Appeals dismissed.
| The appellants were the claimants land owners, whose lands were acquired for establishing a residential cum commercial complex.
The Land Acquisition Collector belting the land in three parts awarded compensation for block `A ' at the rate of Rs. 4.13 per sq.yd.; for block `B ' at the rate of Rs. 2.43 per sq.yd.
and for block `C ' at Rs. 1.65 per sq.
In First Appeal the High Court was persuaded to confine to belting `A ' & `B '.
The High Court fixed compensation at the rate of Rs. 23 per sq.yd.
for belt `A ' and for belt `B ' Rs. 16 per sq.yd.
The Claimants by special leave filed present appeals for enhancement contending that the acquired land comprises of a large area, situated alongside the G.T. Road in a strip approximately 3 kms.
in length on the other side of which was the railway line; that the belting had been done in a haphazard way; that the land having been acquired for building purposes, its quality as agricultural land should not have weighed; and compensation should have been assessed uniformally.
Dismissing the appeals, this Court, HELD: 1.
The rate of Rs. 42 per sq.yd. is claimed on the basis that a part of land measuring about 125 sq.yd. which found part of the acquired land, was, before the acquisition, purchased by a purchaser at the rate of Rs. 42 per sq.
and that was an indication that the land acquired would have fetched Rs. 42 per sq.yd.
[3E] 2.
The High Court had rejected the contention of the appellants taking the twin view that firstly the land involved was small in measure and secondly it was fully constructed having a house and a godown facing the G.T. Road itself.
This reasoning is sound.
[3F] 3.
The judgement in which Rs. 42 had been awarded in another 2 case has not been brought on record as a piece of evidence to be relied upon by the claimants, and no permission has been sought to adduce additional evidence.
The said judgement cannot therefore be used as a precedent even to persuade this Court to take the view that the rate should be Rs. 42 per sq.yd.
for belt `A ' if not uniformally.
All these factors cumulatively lead to the view that appellants have no case for enhancement and have been adequately compensated for the land acquired.
[3H; & A B]
|
Civil Appeal Nos.
626 & 629 of 1971.
From the Judgment and Order dated 5 8 1970 of the Rajasthan High Court in R.F.A. No. 31/60.
630 section T. Desai and Naunit Lal for the Appellant.
P. R. Mridul, B. P. Sharma, Krishna Bhatt and R. K. Bhatt for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
These two cross appeals by certificate arise out of a suit for possession of a house situate in Bikaner and for damages for use and occupation thereof filed in Civil Original Case No. 17 of 1957 on the file of the District Judge, Bikaner.
The plaintiffs in the suit are the appellants in Civil Appeal No. 626 of 1971 and the defendant is the appellant in Civil Appeal No. 629 of 1971.
The genealogy showing the relationship between the parties is given below: Sur Singh | | | | | Gad Singh Bharat Singh Bhim Singh Kan Singh | (Died in (P.I.) (Deft.) | Sept. 1955) | | | | | | | | Duley Dhaney Deep | Singh Singh Singh | | | Himmat Dalip Singh Singh (P.2.) (Died in Sept. 56) Gad Singh, Bharat Singh, Bhim Singh (plaintiff No. 1) and Kan Singh (defendant) are the sons of Sur Singh.
Bharat Singh died unmarried in September, 1955.
Gad Singh died thereafter leaving behind him three sons, Duley Singh, Dhaney Singh and Deep Singh.
Dalip Singh, the second son of plaintiff No.1 died in September, 1956.
Bharat Singh and the defendant were residing in the house which was the subject matter of the suit.
After the death of Bharat Singh, the plaintiffs Bhim Singh and Himmat Singh filed the suit out of which this appeal arises against Kan Singh, the defendant for recovery of possession of the suit house and other ancillary reliefs.
In the plaint, they 631 pleaded that the suit house belonged to them by virtue of a patta dated July 12, 1940 issued in their names; that the defendant who was the brother of plaintiff No. 1 and uncle of plaintiff No. 2 was living in a part of the house with their consent; that plaintiff No. 2 and his younger brother Dalip Singh were also living in the house till the year 1956; that the defendant had refused to receive a notice issued by them in the month of September, 1957 calling upon him to hand over possession of the house to the plaintiffs; that the defendant had done so on account of personal ill will and that the plaintiffs were, therefore, entitled to recover possession of the suit house and damages from the defendant.
These were briefly the allegations made in the plaint.
On the above basis, the plaintiffs prayed for a decree for the reliefs referred to above.
In the written statement, the defendant did not admit the existence of the patta on the basis of which the plaintiffs claimed title to the suit house.
He denied the allegation that the plaintiffs were the owners in possession of the suit house.
He claimed that he was the exclusive owner of the suit house, and in support of the said claim stated as follows: There was a partition amongst the sons of Sur Singh in the year 1929.
At that partition, Gad Singh and plaintiff No. 1 became separated and they were given all the family properties which were situated in their village, Roda.
As Bharat Singh and the defendant had been educated at the expense of the family, they were not given any share in the property.
Bharat Singh and he settled in Bikaner and lived together as members of joint Hindu family.
Bharat Singh died on September 2, 1955 leaving the defendant as a surviving coparcener.
On his death, the defendant became the owner of the properties of Bharat Singh 'as a member of joint Hindu family '.
He further pleaded that from the year 1928, Bharat Singh and he who were working as the Aid de Camp and Private Secretary respectively of the Maharaja of Bikaner were living in the suit house which then belonged to the Maharaja.
The defendant filed an application for purchasing the house.
The proceedings had not terminated when the defendant left the service of the Maharaja and went to Banaras for higher studies.
On his return from Banaras, he joined the service of the Maharaja in the civil department of Bikaner.
After a long time on account of the joint efforts of Bharat Singh and the defendant, the sale of the house was sanctioned.
Bharat Singh who was living jointly with him paid the consideration for the sale on November 4, 1939 'out of the joint income. ' Thus according to the defendant, Bharat Singh and he became its owners from the date of payment of the consideration.
He 632 further pleaded that 'if the patta of the property had been granted in the names of the plaintiffs due to some reasons, political and other surrounding circumstances and for the safety of the property, it cannot affect the right of the defendant '.
It was also stated that Bharat Singh and the defendant had not executed any sale deed in favour of the plaintiffs and so they could not become owners of the suit house.
In another part of the written statement, the defendant pleaded thus: "The plaintiffs have taken the entire ancestral property of the village.
Still they are harassing the defendant due to avarice.
The defendant and Thakur Bharat Singh had been doing Government service.
So there was always danger or removal or confiscation of the property.
Even if Thakur Bharat Singh might have written or given his consent for entering the names of the plaintiffs in the patta in this view, it is not binding.
The plaintiffs are at the most 'benami ' even though the patta which is not admitted might be proved.
" It is thus seen that the defendant put forward a two fold claim to the suit house one on the basis of the right of survivorship another on the basis of a joint purchase along with Bharat Singh.
Even though in one part of the written statement, he declined to admit the existence of the patta, in paragraph 13 of the written statement which is extracted above, he put forward the plea that the plaintiffs were at the most holding the property as benamdars.
He, however, did not claim that he was entitled to the property as an heir of Bharat Singh alongwith plaintiff No. 1.
and Gad Singh who would have inherited the estate of Bharat Singh on his death being his nearest heirs.
In the reply, the plaintiffs denied that the defendant was entitled to the suit house as a surviving coparcener on the death of Bharat Singh.
They, however, pleaded that plaintiff No. 1 had purchased the suit house out of his income; that Bharat Singh used to love plaintiff No. 2 'as his son ' and was thinking of adopting him but he died all of a sudden and that the defendant had not disclosed in his written statement the special political circumstances under which the names of the plaintiffs were entered in the patta.
They denied that the defendant had any interest in the suit house.
On the basis of the oral and documentary evidence produced before him, the learned District Judge who tried the suit held that Bharat Singh had secured the house from the Government of Bikaner for the plaintiffs with their money; that the patta of the house had been granted by the Patta Court in favour of the plaintiffs; that the plaintiffs were in possession of the suit house till September, 1956 and that the 633 defendant being their close relative was living in the house not on his own account but with the plaintiffs ' permission.
The learned District Judge also held that the defendant had failed to prove that the suit house had been acquired by him and Bharat Singh with their joint fund.
Accordingly he decreed the suit for possession of the house in favour of the plaintiffs and further directed that the defendant should pay damages for use and occupation at the rate of Rs. 50 per month from September 20, 1956 till the possession of the house was restored to them.
Aggrieved by the decree of the trial court, the defendant filed an appeal before the High Court of Rajasthan in Civil First Appeal No. 31 of 1960.
The High Court rejected the case of the plaintiffs that the consideration for the house had been paid by Bharat Singh out of the funds belonging to them and also the case of the defendant that the house had been purchased by Bharat Singh with the aid of joint family funds belonging to himself and the defendant.
The High Court held that the house had been purchased by Bharat Singh out of his own money in the names of the plaintiffs without any intention to confer any beneficial interest on them.
It further held that the suit house belonged to Bharat Singh and on his death, Gad Singh, plaintiff No. 1 and the defendant succeeded to his estate which included the suit house in equal shares.
Accordingly in substitution of the decree passed by the trial court, the High Court made a decree for joint possession in favour of plaintiff No. 1.
The rest of the claim of the plaintiffs was rejected.
Dissatisfied with the decree of the High Court, the plaintiffs and the defendant have filed these two appeals as mentioned above.
The principal issue which arises for consideration relates to the ownership of the suit house.
It is admitted on all hands that though Bharat Singh and the defendant were living in the suit house from the year 1928, it continued to be the property of the Maharaja of Bikaner till the date on which the patta (Exh. 4) was issued by the Patta Court of Bikaner and that on the issue of the patta, the State Government ceased to be its owner.
It is also not disputed that the patta constituted the title deed in respect of the suit house and it was issued in the names of the plaintiffs on receipt of a sum of Rs. 5,000.
On January 11, 1930, the defendant had made an application, a certified copy of which is marked as Exhibit A 116 to the Revenue Minister of the State of Bikaner making enquiry about the price of the suit house on coming to know that the State Government intended to sell it.
After the above application was made, the defendant left the service of the State of Bikaner and went to Banaras for studies.
Bharat Singh who was also an employee of the State Gov 634 ernment was working as the Aid de Camp of the Maharaja in 1939.
At the request of Bharat Singh, an order was made by the Maharaja on May 4, 1939 sanctioning the sale of the suit house for a sum of Rs. 5,000.
Exhibit A 118 is the certified copy of the said order.
Exhibit A 120 is a certified copy of the order of Tehsil Malmandi showing that a sum of Rs. 5,000 had been deposited on behalf of Bharat Singh towards the price of the suit house.
It also shows that Bharat Singh was asked to intimate the name of the person in whose favour the patta should be prepared.
Presumably, the patta was issued in the names of the plaintiffs as desired by Bharat Singh and Exhibit A 121 shows that it was handed over on September 30, 1940.
The patta was produced before the trial court by the plaintiffs.
By the time the patta was issued in the names of the plaintiffs, the mother of plaintiff No. 2 had died.
He was about eight years of age in 1940 and he and his younger brother, Dalip Singh were under the protection of Bharat Singh who was a bachelor.
They were staying with him in the suit house.
The defendant also was residing in it.
The plaintiffs who claimed title to the property under the patta in the course of the trial attempted to prove that the sum of Rs. 5,000 which was paid by way of consideration for the patta by Bharat Singh came out of the jewels of the mother of plaintiff No. 2 which had come into the possession of Bharat Singh on her death.
The plaintiff No. 2 who gave evidence in the trial court stated that he had not given any money to Bharat Singh for the purchase of the house but he had come to know from his father, plaintiff No. 1 that it had been purchased with his money.
Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) to whose evidence we will make a reference in some detail at a later stage also stated that they had heard from Bharat Singh that the jewels of the mother of plaintiff No. 2 were with him suggesting that they could have been the source of the price house.
Plaintiff No. 1 who could have given evidence on the above question did not enter the witness box.
It is stated that he was a person of weak mind and after the death of Bharat Singh was behaving almost like a mad man.
The defendant stated in the course of his evidence that the mother of plaintiff No. 2 had gold jewels weighing about 3 4 tolas only.
In this state of evidence, it is difficult to hold that the plaintiffs have established that the consideration for the suit house was paid by them.
The finding of the trial court that the house had been purchased by Bharat Singh for the plaintiffs with their money cannot be upheld.
The case of the defendant that the price of the suit house was paid out of the funds belonging to him and Bharat Singh has been rejected both by the trial court and the High Court.
On going 635 through the evidence adduced by the defendant, we feel that there is no reason for us to disturb the concurrent findings arrived at by the trial court and the High Court on the above question.
We shall, therefore, proceed to decide the question of title on the basis that the consideration for the purchase of the house was paid by Bharat Singh out of his own funds.
It was contended by the learned counsel for the defendant that since the plaintiffs had failed to establish that they had contributed the price paid for the suit house, the suit should be dismissed without going into the question whether Bharat Singh had purchased the suit house with his money in the names of the plaintiffs for the benefit of plaintiff No. 2.
The plaint does not disclose the name of the person or persons who paid the sale price of the suit house.
The suit is based on the patta standing in the names of the plaintiffs.
In the written statement of the defendant, there was an allegation to the effect that even though the patta was standing in the names of the plaintiffs, they were only benamidars and the real title was with Bharat Singh and the defendant.
The particulars of the circumstances which compelled Bharat Singh or the defendant to take the patta in the names of the plaintiffs were not disclosed although it was stated that it had been done owing to some political and other surrounding circumstances and for the safety of the property.
From the evidence led by the parties, we are satisfied that they knew during the trial of the suit that the question whether the transfer effected under the patta was a benami transaction or not arose for consideration in the case.
Even in the appeal before the High Court, the main question on which arguments were addressed was whether the transaction was a benami transaction or not.
Merely because the plaintiffs attempted to prove in the trial court that the money paid for purchasing the house came out of their funds, they cannot in the circumstances of this case be prevented from claiming title to the property on the basis that even though Bharat Singh had paid the consideration therefor, plaintiff No. 2 alone was entitled to the suit house.
Reference may be made here to the decision of this Court in Bhagwati Prasad vs Shri Chandramaul(1) where the Court observed as follows: "There can be no doubt that if a party asks for a relief on a clear and specific grounds, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to 636 attempt to sustain the same claim on a ground which is entirely new. .
But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over ride the legitimate considerations of substance.
If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.
The general rule no doubt is that the relief should be founded on pleadings made by the parties.
But where the substantial matters relating to the title of both parties to the suit are touched, though in directly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case.
What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ?" After holding that the parties to the said case were not taken by surprise, the Court granted the relief prayed for by the plaintiff on the basis that defendant was a licensee even though the plaintiff had pleaded in his plaint that the defendant was tenant.
In the above case, the Court distinguished the decision in Trojan & Co. Ltd. vs RM.
N. N. Haggappa Chettiar(1) on which much reliance was placed by the learned counsel for the defendant before us.
In the case of Trojan & Co. Ltd. (supra), this Court came to the conclusion that the alternative claim on which relief was sought was not at all within the knowledge of the parties in the course of the trial.
The case before us is not of the nature.
In Ismail Mussajee Mookerdum vs Hafiz Boo(2) the plaintiff laid claim to a property which had been transferred in her name by her mother alleging that she had paid the purchase money to her mother.
The court came to the conclusion that she had failed to prove that she had paid the consideration.
Still a decree was made in her favour holding that she had become the owner of the property by virtue of the transfer in her favour even though consideration had not been 637 paid by her since it had been established in the case that her mother intended to transfer the beneficial interest in the property in her favour.
This is borne out from the following passage at page 95: "In her evidence, which was very confused, she tried to say that she paid that purchase money to her mother.
This was clearly untrue: as both Courts have found.
The fact, therefore, remains that the properties purchased by the sale proceeds were purchased no doubt in Hafiz Boo 's name, but were purchased out of funds emanating from her mother 's estate.
This circumstance no doubt, if taken alone, affords evidence that the transaction was benami, but there is, in their Lordships ' opinion, enough in the facts of the case to negative any such inference." Moreover no plea was raised on behalf of the defendant before the High Court in this case contending that the High Court should not go into the question whether the transfer under the patta was a benami transaction or not.
We, therefore, reject the above contention and proceed to examine whether the High Court was right in arriving at the conclusion that the plaintiffs were only benamidars holding the property for the benefit of its real owner, Bharat Singh as the consideration therefor had emanated from him.
Under the English law, when real or personal property is purchased in the name of a stranger, a resulting trust will be presumed in favour of the person who is proved to have paid the purchase money in the character of the purchaser.
It is, however, open to the transferee to rebut that presumption by showing that the intention of the person who contributed the purchase money was that the transferee should himself acquire the beneficial interest in the property.
There is, however, an exception to the above rule of presumption made by the English law when the person who gets the legal title under the conveyance is either a child or the wife of the person who contributes the purchase money or his grand child, whose father is dead.
The rule applicable in such cases is known as the doctrine of advancement which requires the court to presume that the purchase is for the benefit of the person in whose favour the legal title is transferred even though the purchase money may have been contributed by the father or the husband or the grandfather, as the case may be, unless such presumption is rebutted by evidence showing that it was the intention of the person who paid the purchase money that the transferee should not become the real owner of the property in question.
The doctrine of advancement is not in vogue in India.
638 The counterpart of the English law of resulting trust referred to above is the Indian law of benami transactions.
Two kinds of benami transactions are generally recognized in India.
Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami.
In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner.
The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder.
In this case, the transferor continues to be the real owner.
The difference between the two kinds of benami transactions referred to above lies in the fact that whereas in the former case, there is an operative transfer from the transfer to the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance.
One common feature, however, in both these cases is that the real title is divorced from the ostensible title and they are vested in different persons.
The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case.
The principle underlying the former case is also statutorily recognized in section 82 of the which 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.
This view is in accord with the following observations made by this Court in Meenakshi Mills.
Madurai vs The Commissioner of Income Tax, Madras(1): "In this connection, it is necessary to note that the word 'benami ' is used to denote two classes of transactions which differ from each other in their legal character and incidents.
In one sense, it signifies a transaction which is real, as for example when A sells properties to B but the sale deed mentions X as the purchaser.
Here the sale itself is genuine, but the real purchaser is B, X being his benamidar.
This is 639 the class of transactions which is usually termed as benami.
But the word 'benami ' is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B.
The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed.
It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid." In Mohammad Sadiq Ali Khan vs Fakhr Jahan Begum & Ors.(1) the facts were these: A Mahemmodan bought an immovable property taking the conveyance in the name of his daughter who was five years of age.
The income was credited to a separate account, but it was in part applied to purposes with which she had no concern.
Upon her marriage, the deed was sent for the inspection of her father in law.
After the death of the donor it was contended that the property was part of his estate, the purchase being benami.
The Judicial Committee of the Privy Council held that there was a valid gift to the daughter because there was proof of a bona fide intention to give, and that intention was established.
In the course of the above decision, it was observed thus: "The purchase of this property was a very natural provision by Baqar Ali for the daughter of his favourite wife, and though there may be no presumption of advancement in such cases in India, very little evidence of intention would be sufficient to turn the scale.
The sending of the deed for the inspection of the lady 's father in law, which the Chief Court held to be established, was clearly a representation that the property was hers, and their Lordships agree with the learned Judges in the conclusion to which they came.
" 640 In Manmohan Dass & Ors.
vs Mr. Ramdei & Anr.
(1) Lord Macmillian speaking for the Judicial Committee observed: In order to determine the question of the validity or invalidity of the deed of gift in question it is of assistance to consider. 'the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct. ' Dalip Singh vs Nawal Kanwar 35 I.A. 104 (P.C.) always remembering that the onus of proof rests upon the party impeaching the deed.
The principle enunciated by Lord Macmillan in the case of Manmohan Dass & Ors.
(supra) has been followed by this Court in Jayadayal Poddar (deceased) through his L. Rs. & Anr.
vs Mst.
Bibi Hazara & Ors.(2) where Sarkaria, J. observed thus: "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact.
The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through.
But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.
The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs.
Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering 641 the relevant indicia, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possesion of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
" The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc.
Now we shall refer to the facts of the present case.
When the suit house was purchased from the Maharaja of Bikaner, Bharat Singh was a bachelor and he did not marry till his death in the year 1955.
The wife of Bhim Singh had died before 1939 leaving behind her two young children.
Plaintiff No. 2 was about eight years old in the year 1939 and his younger brother Dalip Singh was about two years old.
These two children were living with Bharat Singh.
Bhim Singh, plaintiff No. 1 was almost in indigent condition.
The defendant had by then acquired a degree in law and also had practised as a lawyer for some time.
It is stated that the defendant had again been employed in the service of the State of Bikaner.
The patta was issued in the names of plaintiffs 1 and 2 at the request of Bharat Singh.
Even though the defendant stated in the written statement that the patta had been taken in the names of the plaintiffs owing to certain political circumstances, he had not disclosed in the course of his evidence those circumstances which compelled Bharat Singh to secure the patta in the names of the plaintiffs, though at one stage, he stated that it was under his advice that Bharat Singh got the patta in the names of the plaintiffs.
Bharat 642 Singh had no motive to suppress from the knowledge of the public that he had acquired the property.
It was suggested in the course of the arguments that he had taken the patta in the names of the plaintiffs because he was in the service of the State.
We do not find any substance in this submission because the property was being purchased from the State Government itself and there was no need for him to shield his title from the knowledge of the State Government.
It appears that Bharat Singh acquired the suit house for the benefit of plaintiff No. 2 for the following circumstances: The first circumstance is that the original patta had been handed over by Bharat Singh to plaintiff No. 2 on his passing B. Sc.
Examination.
This fact is proved by the evidence of plaintiff No. 2 and it is corroborated by the fact that the patta was produced by the plaintiffs before the Court.
In the course of his evidence, the defendant no doubt stated that the patta had been stolen by plaintiff No. 2 from the suit house during the twelve days following the death of Bharat Singh when the keys of Bharat Singh 's residence had been handed over to plaintiff No. 2 by the defendant.
It is difficult to believe the above statement of the defendant because of two circumstances (i) that the defendant did not state in the written statement that the patta had been stolen by plaintiff No. 2 and (ii) that within a month or two after the death of Bharat Singh, plaintiff No. 2 wrote a letter which is marked as Exhibit A 124 to the defendant stating that the rumour which the defendant was spreading that plaintiff No. 2 had stolen some articles from the suit house was not true since whenever plaintiff No. 2 opened room or any of the almirahs of Bharat Singh in the suit house, Devi Singh the son of the defendant was keeping watch over him.
That letter has been produced by the defendant and there is no reference in it to a false rumour being spread about the theft of the patta by plaintiff No. 2.
Plaintiff No. 2 however, while asserting his claim to the suit house in the course of that letter stated that he had seen that the patta had been executed in his favour; and that the patta contained his name.
The defendant does not appear to have sent any reply to Exhibit A. 124 nor did he call upon the plaintiffs to return the patta to him.
He did not also file a complaint stating that the patta had been stolen by plaintiff No. 2.
We are of the view that there is no reason to disbelieve the evidence of plaintiff No. 2 that the patta had been handed over to him by Bharat Singh on his passing the B.Sc.
examination.
This conduct of Bharat Singh establishes that it was the intention of Bharat Singh when he secured the patta from the State Government in the names of the plaintiffs the plaintiff No. 2 whom he loved should become the owner.
It is no doubt true that the name of plaintiff No. 1 is also included in the patta.
It may have been so included by way 643 of abundant caution as plaintiff No. 2 was a minor when the patta was issued.
The above circumstance is similar to the one which persuaded their Lordships of the Privy Council in the case of Mohammad Sadiq Ali Khan (supra) to hold that the property involved in that case belonged to the person in whose favour the conveyance had been executed.
The second circumstance which supports the view that Bharat Singh intended that plaintiff No. 2 should become the owner of the suit house is proved by the declarations made by Bharat Singh regarding the title to the suit house.
Jaswant Singh (P.W. 2) was a former Prime Minister of the State of Bikaner.
His wife was a cousin of plaintiff No. 1, Bharat Singh and the defendant.
Being a close relative of Bharat Singh who was also the Aid de Camp of the Maharaja of Bikaner, he was quite intimate with Bharat Singh who used to discuss with him about his personal affairs.
P.W. 2 has stated in the course of his evidence that Bharat Singh thought it proper to purchase the house in the name of plaintiff No. 2 and that he intended to make plaintiff No. 2 his heir and successor.
He has also stated that Bharat Singh had expressed his desire to give all his property to plaintiff No. 2 by a will and that he had told Kesri Singh (P.W. 3) just a day prior to his (Bharat Singh 's) death that a will was to be executed.
This statement of Jaswant Singh (PW. 2) is corroborated by the evidence of Kesri Singh (P.W. 3) whose wife was also a cousin of Bharat Singh, plaintiff No. 1 and the defendant.
The relevant portion of the deposition of Kesri Singh (P.W. 3) reads thus: "I came from Jaipur to Bikaner by train one day before the death of Bharat Singh and when I was returning after a walk I found Bharat Singh standing at the gate of his house.
I asked Bharat Singh to accompany me to my house to have tea etc.
Bharat Singh came with me to my house.
Bharat Singh told me at my house that he was not quite all right and that he might die at any time.
He wanted to execute a will.
He further told me that his house really belonged to Himmat Singh.
It has been purchased in his name.
He wanted to give even other property to Himmat Singh.
By other property which Bharat Singh wanted to give to Himmat Singh was meant Motor car, bank balance and the presents which he had.
The house regarding which my talk took place with Bharat Singh at my house was the house in dispute.
" There is no reason to disbelieve the evidence of these two witnesses.
Their evidence is corroborated by the deposition of Dr. Himmat Singh (D.W. 6) who was the Secretary of a Club in Bikaner 644 of which Bharat Singh was a member.
He was examined by the defendant himself as his witness.
In the course of his cross examination, Dr. Himmat Singh (D.W. 6) referred to what Bharat Singh had told him a few months prior to his death.
The substance of his deposition is found in the judgment of the trial court, the relevant portion of which reads thus: "D.W. 6 Dr. Himmat Singh is the Secretary of the Sardul Club, Bikaner.
He is the Senior Eye Surgeon in the Government Hospital, Bikaner.
He has stated that Bharat Singh was the member of Sardul Club.
A sum of Rs. 425/6/ remained outstanding against him till the year 1955.
This amount was received on 28 10 1955.
He has said that he does not know who deposited this amount.
On the merits of the case, he has stated that he intimately knew Bharat Singh and members of his family.
Bhim Singh and his sons Himmat Singh and Dalip Singh used to live in this house.
Bharat Singh took this house for Bhim Singh and Himmat Singh.
Four months before his death, Bharat Singh told the witness that he had already taken the house for Bhim Singh and Himmat Singh and that whatever else would remain with him shall go to them.
Dr. Himmat Singh refutes the defendant 's stand and supports the plaintiff 's case.
" It was argued on behalf of the defendant that there is some variation between the deposition of Dr. Himmat Singh (D.W. 6) and the above passage found in the judgment of the trial court and that the evidence of D.W. 6 should not be believed as he had turned hostile.
The deposition of Dr. Himmat Singh (D.W. 6) was read out to us.
It was also brought to our notice that an application had been made by the defendant to treat D.W. 6 as hostile and that it had not been granted by the trial court.
Even though there is a slight variation between what is stated by D.W. 6 and what is contained in the judgment of the trial court with regard to certain details, we do not feel that the said variation is of any substantial nature.
The evidence of D.W. 6 suggests that Bharat Singh was of the view even during his life time that the suit house belonged to plaintiffs and not to himself.
Even though an application had been made by the defendant to treat D.W. 6 as hostile, we feel that this part of the evidence of D.W. 6 cannot be rejected on that ground since it is consistent with the evidence of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3).
It is seen from the judgment of the High Court that the effect of the statement of Kesri Singh (P.W.3) in his deposition that Bharat Singh 645 had told him that the suit house was the property of plaintiff No. 2 has not been considered.
The High Court while dealing with the evidence of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) laid more emphasis on those parts of their evidence where there was a reference to the alleged utilisation of the jewels or moneys belonging to the plaintiffs by Bharat Singh for the purpose of acquiring the suit house.
The High Court has also observed in the course of its judgment that neither of them had stated that Bharat Singh had told them that he was purchasing or had purchased the suit house as a gift to Bhim Singh and Himmat Singh.
The above observation does not appear to be consistent with the evidence of Kesri Singh (P.W. 3) discussed above.
It was, however, contended on behalf of the defendant that the statement made by Bharat Singh in the year 1955 could not be accepted as evidence in proof of the nature of the transaction which had taken place in the year 1940.
It was contended that the question whether a transaction was of a benami nature or not should be decided on the basis of evidence about facts which had taken place at or about the time of the transaction and not by statements made several years after the date of the transaction.
In support of the above contention, the learned counsel for the defendant relied on the decision of the House of Lords in Shephard & Anr.
vs Cartwright & Anr.(1).
The facts of that case were these: In 1929, a father, with an associate, promoted several private companies and caused a large part of the shares, for which he subscribed, to be allotted in varying proportions to his three children, one of them being then an infant.
There was no evidence as to the circumstances in which the allotments were made.
The companies were successful and in 1934 the father and his associate promoted a public company which acquired the shares of all the companies.
The children signed the requisite documents at the request of their father without understanding what they were doing.
He received a cash consideration and at various times sold, and received the proceeds of sale of, their shares in the new company.
He subsequently placed to the credit of the children respectively in separate deposit accounts the exact amount of the cash consideration for the old shares and round sums in each case equivalent to proceeds of sale of the new shares.
Later he obtained the children 's signatures to documents, of the contents of which they were ignorant, authorising him to withdraw money from these accounts and without their knowledge he drew on the accounts, which were by the end of 1936 exhausted, part of the sums withdrawn being dealt with for the benefit of the children but a large part remaining unaccounted for.
He died in 646 1949.
In the action filed against his executors, it was contended by them that the subsequent conduct of the father showed that when the shares were got allotted by him in the names of the children in 1929, he did not intend to make them the real owners of the shares and that the presumption of advancement had been rebutted.
This contention was met by the plea that the subsequent conduct of the father in dealing with the shares as if they were his own could not be relied upon either in his favour or in favour of his representatives, executors and administrators to prove that he had no intention to create any beneficial interest in his children in the shares in question when they were obtained.
On these facts, the House of Lords held that the subsequent acts and declarations of the father could not be relied upon in his favour or in favour of his executors to rebut the presumption of advancement.
Viscount Simonds in the course of his judgment observed thus: "My Lords, I do not distinguish between the purchase of shares and the acquisition of shares upon allotment, and I think that the law is clear that on the one hand where a man purchases shares and they are registered in the name of a stranger there is a resulting trust in favour of the purchaser; on the other hand, if they are registered in the name of a child or one to whom the purchaser then stood in loco parentis, there is no such resulting trust but a presumption of advancement.
Equally it is clear that the presumption may be rebutted but should not, as Lord Eldon said, give way to slight circumstances: Finch vs Finch ; It must then be asked by what evidence can the presumption be rebutted, and it would, I think, be very unfortunate if any doubt were cast (as I think it has been by certain passages in the judgments under review) upon the well settled law on this subject.
It is, I think, correctly stated in substantially the same terms in every text book that I have consulted and supported by authority extending over a long period of time.
I will take, as an example, a passage from Snell 's Equity, 24th ed., p. 153, which is as follows: "The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the 647 declaration.
But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.
" The above passage, we are of the view, does not really assist the defendant in this case.
What was held by the House of Lords in the case of Shephard & Anr.
(supra) was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their interest as they acted without the knowledge of the facts.
In the instant case, we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest.
The evidence regarding such conduct and declarations is not being used in his favour but against the legal representative of Bharat Singh i.e. the defendant who would have become entitled to claim a share in the suit house if it had formed part of his estate.
Such conduct or declaration would be admissible even according to the above decision of the House of Lords in which the statement of law in Snell 's Equity to the effect `but subsequent declarations are admissible as evidence only against the party who made them, and not in his favour ' is quoted with approval.
The declarations made by Bharat Singh would be admissible as admissions under the provisions of the Indian Evidence Act being statements made by him against his proprietary interest under section 21 and section 32(3) of the Indian Evidence Act The defendant cannot also derive any assistance from the decision of this Court in Bibi Saddiqa Fatima vs Saiyed Mohammad Mahmood Hasan(1).
The question before the Court in the case of Bibi Siddiqa Fatima (supra) was whether a property which had been purchased by a husband in his wife 's name out of the fund belonging to a waqf of which he was a Mutawalli could be claimed by the wife as her own property.
This Court held that the wife who was the ostensible owner could not be treated as a real owner having regard to the fact that the purchase money had come out of a fund belonging to a waqf over which her husband who was the Mutawalli had no uncontrolled or absolute interest.
In reaching the above conclusion, this Court observed thus : "We may again emphasize that in a case of this nature, all the aspects of the benami law including the 648 question of burden of proof cannot justifiably be applied fully.
Once it is found, as it has been consistently found, that the property was acquired with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired.
The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself.
In such a situation it will not be unreasonable to say rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf.
" It was next contended that the defendant had spent money on the repairs and reconstruction of the building subsequent to the date of the patta and that therefore, he must be held to have acquired some interest in it.
We have gone through the evidence bearing on the above question.
We are satisfied that the defendant has not established that he had spent any money at all for construction and repairs.
Even if he has spent some money in that way with the knowledge of the actual state of affairs, it would not in law confer on the defendant any proprietary interest in the property.
It is also significant that neither Gad Singh during his life time nor his children after his death have laid any claim to a share in the suit house which they were entitled to claim alongwith the defendant if it was in fact a part of the estate of Bharat Singh.
Their conduct also probabilities the case of the plaintiffs that Bharat Singh did not intend to retain for himself any interest in the suit house.
On the material placed before us, we are satisfied that the transaction under which the patta was obtained was not a benami transaction and that Bharat Singh had acquired the suit house with his money with the intention of constituting plaintiff No. 2 as the absolute owner thereof.
Plaintiff No. 2 is, therefore, entitled to a decree for possession of the suit house.
The trial court passed a decree directing the defendant to pay damages for use and occupation in respect of the suit house at the rate of Rs. 50/ per month from September 20, 1956 till the 649 possession of the house was delivered to the plaintiffs.
The operation of the decree of the trial court was stayed by the High Court during the pendency of the appeal before it.
In view of the decree passed by the High Court, the defendant has continued to be in possession of the suit house till now.
Nearly twenty years have elapsed from the date of the institution of the suit.
In the circumstances, we are of the view that the defendant should be directed to pay mesne profits at the rate of Rs. 50/ per month till today and that an enquiry should be made by the trial court under Order 20, Rule 12 of the Code of Civil Procedure to determine the mesne profits payable by the defendant hereafter till the date of delivery of possession.
In the result, the decree passed by the High Court is set aside and a decree is passed directing the defendant to deliver possession of the suit house to plaintiff No. 2 and to pay mesne profits to him at the rate of Rs. 50/ per month from September 20, 1956 till today and also to pay future mesne profits as per decree to be passed by the trial court under Order 20, Rule 12 of the Code of Civil Procedure.
For the foregoing reasons, Civil Appeal No. 626 of 1971 is accordingly allowed with costs throughout.
Civil Appeal No. 629 of 1971 is dismissed but without costs.
C.A. 626/71 allowed.
P.B.R. C.A. 629/71 dismissed.
| Plaintiff No. 1 and plaintiff No. 2 were father and son while defendant was the brother of plaintiff No. 1.
The plaintiffs in their suit against the defendant claimed that the suit house in which the defendant was living, belonged to them by virtue of a patta issued in their names.
They alleged that the deceased brother of plaintiff No. 1, who remained a bachelor till his death, loved plaintiff No. 2 as his son and had thought of adopting plaintiff No. 2 but since he died all of a sudden it could not be done.
The defendant on the other hand claimed that he and his deceased brother lived as members of a joint family after the partition of their family that as a result of the joint efforts of himself and his deceased brother the Maharaja, of Bikaner sanctioned sale of the house to them, that the purchase money was paid out of their joint income but that the patta was granted in the names of the plaintiffs due to political reasons and therefore the plaintiffs were at the most benamidars.
The trial court held that the house was acquired by the deceased brother from the Government of Bikaner for the plaintiffs and the patta was granted in favour of the plaintiffs and that they were in its possession till 1956.
It rejected the defendant 's claim that it was acquired with the joint funds of himself and his deceased brother.
On appeal the High Court held that the house had been purchased by the deceased brother out of his own money in the names of the plaintiffs without any intention to confer any beneficial interest on them and on his death plaintiff No. 1 and the defendant succeeded jointly to the estate as his heirs. ^ HELD: The transaction under which the patta was obtained was not a benami transaction.
The house was acquired by the deceased brother with his money and with the intention of constituting plaintiff No. 2 as the absolute owner thereof.
[648G] Where a person buys property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami.
In that case the transferee holds the property for the benefit of the person who has contributed the purchase money and he is a real owner.
The second case which is loosely termed a benami transaction is a case where a person, who is the owner of the property, executes a conveyance in favour of another without the intention of transferring the title to the property thereunder.
In this case the transferor continues to be the real owner.
The difference between the two kinds of benami transactions is that whereas in the former there is an operative transfer from the transferor to the transferee, though the transferee holds the property for the benefit of the person who has 629 contributed the purchase money, in the latter there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance.
One common feature in both cases is that the real title is divorced from the ostensible title and they are vested in different persons.
The question whether a transaction is a benami transaction or not depends upon the intention of the person who has contributed the purchase money in the former case, and upon the intention of the person who has executed the conveyance in the latter case.
The principle underlying the former case is statutorily recognized in section 82 of the Indian Trust Act, 1882.
[638B E] Meenakshi Mills, Madurai vs The Commissioner of Income Tax, Madras, ; at p. 722; Mohammad Sadiq Ali Khan vs Fakhr Jahan Begam & Ors.
59 I.A. 1; Manmohan Das & Ors.
vs Mr. Ramdai & Anr.
A.I.R. 1931 P. C. 175; Jaydayal Poddar (deceased) through his L.Rs. & Anr.
vs Mst.
Bibi Hazra & Ors.
referred to. 2.
The principles governing the determination of the question whether a transfer is a benami or not are: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was, has to be decided on the basis of the surrounding circumstances, the relationship of the parties the motives governing their action in bringing about the transaction and their subsequent conduct.
[641C E] In the instant case the deceased brother was a bachelor.
On the death of the wife of plaintiff No. 1, plaintiff No. 2 and his younger brother were staying with the deceased brother.
Plaintiff No. 1 was almost in an indigent condition while defendant practised law for some time and later entered into service.
The patta for the house was issued in the name of plaintiffs nos.
1 and 2 at the request of the deceased brother for the benefit of plaintiff No. 2 and was handed over to him after he completed his education.
This conduct of the deceased brother established that it was his intention that, when he secured the patta from the State Government in the names of plaintiffs it was his intention that plaintiff No. 2 whom he loved, should become the owner.
[641F H] 3.
The declaration made by the deceased, who had contributed the purchase money subsequent to the date of purchase to the effect that the property belonged to plaintiff No. 2 was admissible in evidence either under section 32(3) or section 21 of the Indian Evidence Act to prove his intention that he intended that plaintiff No. 2 should become its owner.
[647E] Shephard & Anr.
vs Cartwright & Anr.
; , distinguished.
|
minal Appeal No. 128 of 1955.
Appeal from the judgment and order dated February 8, 1955, of the Allahabad High Court in Government Appeal No. 165 of 1954, arising out of the judgment and order dated July 24, 1953, of the Court of the Civil and Sessions Judge at Gorakhpur in Sessions Trial No. 5 of 1953.
G. C. Mathur and C. P. Lal, for the appellant.
section N. Andley, for the respondents.
February 14.
The following Judgment of the Court was delivered by DAS C. J.
The respondents before us were put up for trial for offences under sections 147, 302, 325 and 326, Indian Penal Code read with section 149 of the same Code.
On July 24, 1953, the temporary Civil Sessions Judge, Gorakhpur, acquitted them, The State of Uttar Pra 162 1276 desh apparently felt aggrieved by this acquittal and intended to appeal to the High Court under section 417 of the Code of Criminal Procedure.
Under article 157 of the Indian Limitation Act an appeal under the Code of Criminal Procedure from an order of acquittal is required to be filed within six months from the date of the order appealed from.
The period of limitation for appealing from the order of acquittal passed by the Sessions Judge on July 24,1953, therefore, expired on January 24, 1954.
That day being a Sunday the Deputy Government Advocate on January 25, 1954, filed a. petition of appeal on behalf of that State.
A plain copy of the judgment sought to be appealed from was filed with that petition.
The High Court office immediately made a note that the copy of the judgment filed along with the petition of appeal did not appear to be a certified copy.
After the judicial records of the case had been received by the High Court, an application for a certified copy of the judgment of the trial court was made on behalf of the State on February 12, 1954.
The certified copy was received by the Deputy Government Advocate on February 23,1954 and he presented it before the High Court (in February 25, 1954, when Harish Chandra J. made an order that the certified copy be accepted and that three days ' further time be granted to the appellant for making an application under section 5 of the Indian Limitation Act for condoning the delay in the filing of the certified copy.
Accordingly an application for the condonation of delay was made by the appellant on the same day and that application was directed to be laid before a Division Bench for necessary orders.
The application came up for hearing before a Division Bench consisting of M. C. Desai and N. U. Beg JJ.
Ai the hearing of that application learned counsel appearing for the appellant urged that as there was, in the circumstances of this case, sufficient cause for not filing the certified copy along with the petition of appeal the delay should be condoned and that, in any event, the filing of the plain copy of the judgment of the trial court along with the petition of appeal constituted a sufficient compliance with the requirements 1277 of section 419 of the Code of Criminal Procedure.
By their judgment delivered on December 7, 1954, both the learned Judges took the view that no case had been made out for extending the period of limitation under section 5 of the Indian Limitation Act and dismissed the application and nothing further need be said on that point.
The learned judges, however, differed on the question as to whether the filing of a plain copy of the judgment appealed from was a sufficient compliance with the law, M. C. Desai J. holding that it was and N. U. Beg J. taking the contrary view.
The two Judges having differed they directed the case to be laid before the Chief Justice for obtaining a third Judge 's opinion on that question.
Raghubar Dayal J. to whom the matter was referred, by his judgment dated January 31, 1955, expressed the opinion that the word " copy " in section 419 meant a certified copy, and directed his opinion to be laid before the Division Bench.
In view of the opinion of the third Judge, the Division Bench held that the memorandum of appeal had not been accompanied by " a copy " within the meaning of section 419 and that on February 25, 1954, when a certified copy came to be filed the period of limitation for appealing against the order of acquittal passed on July 24, 1953, had already expired and that as the application for extension of the period of limitation had been dismissed the appeal was time barred and they accordingly dismissed the appeal.
The learned Judges, however, by the same order gave the appellant a certificate that the case was a fit one for appeal to this Court.
Hence this appeal.
Section 419 of the Code of Criminal Procedure, under which the appeal was filed, provides as follows: " 419.
Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under section 367.
1278 The sole question raised in this appeal is whether this section requires a petition of appeal to be accompanied by a certified copy of the judgment or order appealed from.
It will be noticed that the section requires " a copy " of the judgment to be filed along with the petition of appeal.
There can be no doubt that the ordinary dictionary meaning of the word " copy " is a reproduction or transcription of an original writing.
As the section does not, in terms, require a certified copy, it is urged on behalf of the appellant that the word " copy " with reference to a document has only one ordinary meaning namely: a transcript or reproduction of the original document and that there being nothing uncertain or ambiguous about the word " copy ", no question of construction or interpretation of the section can at all arise.
It is contended that it is the duty of the court to apply its aforesaid ordinary and grammatical meaning to the word " copy " appearing in section 419 and that it should be held that the filing of a plain copy of the judgment along with the petition of appeal was a sufficient compliance with the requirements of that section.
The matter, however, does not appear to us to be quite so simple.
A " copy " may be a plain copy, i. e., an un official copy, or a certified copy, i. e., an official copy.
If a certified copy of the judgment is annexed to the petition of appeal nobody can say that the requirements of section 419 have not been complied with, for a certified copy is none the less a " copy ".
That being the position a question of construction does arise as to whether the word " copy " used in section 419 refers to a plain copy or to a certified copy or covers both varieties of copy.
It is well settled that " the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they beat harmonise with the subject of the enactment and the object which the Legislature has in view.
Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. " (Maxwell 's Interpretation of Statutes, 10th Edition, 1279 page 52).
In order, therefore, to come to a decision as to the true meaning of a word used in a Statute one has to enquire as to the subject matter of the enactment and the object which the Legislature had in view.
This leads us to a consideration of some of the relevant sections of the Code of Criminal Procedure and other enactments having a material bearing on the question before us.
Section 366 of the Code of Criminal Procedure, which is in Chapter XXVI headed "Of the Judgment ", requires that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court and in the language of the court.
Section 367 requires every such judgment to be written by the presiding officer (or from his dictationtion ) in the language of the court or in English, containing the point or points for determination, the decision thereon and the reasons for the decision.
The judgement has to be dated land signed by the presiding officer in open court.
Except as otherwise provided by law, section 369 forbids the court, after it has signed its judgment, from altering or reviewing the same except to correct mere clerical errors.
After the judgment is pronounced and signed it has, under section 372, to be filed with the record of proceedings and becomes a part of the record and remains in the custody of the officer who is in charge of the records.
Under section 371, when an accused is sentenced to death and an appeal lies from such judgment as of right, the court is to inform him of the period within which he may, if he so wishes, prefer his appeal and when he is sentenced to imprisonment a copy of the findings and sentence must as soon as may be after the delivery of the judgment be given to him free of cost without any application.
This, however, is without prejudice to his right to obtain free of cost on an application made by him, a " copy " of the judgment or order and in trials by jury a " copy " of the heads of charge to the jury.
The copy that is supplied to the accused under sub section
(4) of section 371 is not a full copy of the entire judgment, but the copies supplied to him under sub sections (1) and (2) of section 371 on application made by 1280 him are full copies of the judgment or the heads of the charge to the jury as the case may be.
The copy of the findings ' and the sentence which is supplied to the accused under sub section
(4) without his asking for the same is presumably to enable him to decide for himself whether he would appeal against his conviction and the sentence.
The copies, which are supplied to the accused under sub sections
(1) and (2) on his application for such copies, are obviously full copies of the entire judgment or the heads of charges as the case may be and are intended to enable him to prepare his grounds of appeal should he decide to prefer one and to file the same along with his petition of appeal as required by section 419 of the Code of Criminal Procedure.
There are no provisions corresponding to section 371 for giving any copy of the judgment to the State or the public prosecutor representing the State in case of an act uittal.
If, therefore, the State desires to file an appeal against acquittal under section 417 of the Code of Criminal Procedure the State will have to procure a copy of the judgment or the heads of charge in order to enable it to file the same along with its petition of appeal and thereby to comply with the requirements of section 419.
According to section 74 of the Indian Evidence Act a judgment, being the Act or record of the act of a judicial officer, would be included in the category of public documents.
Under section 548 of the Code of Criminal Procedure if a person affected by a judgment desires to have a copy of the judge 's charge to the jury or of any order or deposition or other part of the record he has the right, on applying for such copy, to be furnished therewith.
A person desirous of such a copy has to apply for it to the public officer having the custody of it and, under section 76 of the Indian Evidence Act, such public officer is bound to.
give that person, on demand, a copy of it on payment of the legal fees thereof together with a certificate written at the foot of such copy that it is a true copy of such document, that is to say, to supply to the applicant what is known as a certified copy.
Therefore, whether it is the accused person who applies for a copy under section 371 , 1281 sub sections
(1) and (2) or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy.
Then when section 419 requires that a copy of the judgment or of the heads of charge be filed along with the petition of appeal, it is not unreasonable to hold that it is the certified copy so obtained that must be filed.
Under articles 154, 155 and 157 of the Indian Limitation Act the petition of appeal has to be filed within the time specified in those articles.
Obviously it may take a little time to apply for and procure a certified copy.
In order that the full period of limitation be available to the intending appellant section 12 of the Limitation Act permits the deduction of the time requisite for obtaining the copy of the judgment or the heads of charge in ascertaining whether the appeal is filed within time.
A certified copy of the judgment will on the face of it show when the copy was applied for, when it was ready for delivery and when it was actually delivered and the court may at a glance ascertain what time was requisite for obtaining the copy so as to deduct the same from the computation of the period of limitation.
Taking all relevant facts into consideration, namely, that a St copy " of the judgment has to be filed along with the petition of appeal, that the copies of the judgment which the accused gets free of cost under section 371 (1) and (2) read with section 76 of the Indian Evidence Act and which the State can obtain on an application made by it under section 76 of the last mentioned Act can only be certified copies, that the time requisite for obtaining such copies is to be excluded from the computation of the period of limitation all quite clearly indicate that the copy to be filed with the petition of appeal must be a certified copy.
Section 419 requires a copy of the judgment or order appealed against to be filed not without some purpose.
That purpose becomes clear when we pass on to section 421 of the Code of Criminal Procedure.
That section enjoins the court, on receiving the petition of appeal and copy of the judgment or order appealed from under section 419, to peruse the same and after 1282 perusing the same to do one of the two things, namely, if it finds that there is no sufficient ground for interfering, to dismiss the appeal summarily or when the court does not dismiss the appeal summarily, then under section 422 to cause notice to be given to the appellant or his pleader and to such officer as the Provincial Cxovernment may appoint in this behalf, of the time and place at which such appeal will be heard and furnish such officer with a copy of the grounds of appeal and in a case of appeal under section 417, as in the present case, to cause a like notice to be given to the accused.
The act of summarily rejecting the appeal or admitting it and issuing notice is necessarily a judicial act and obviously it must be founded on proper materials.
The authenticity or correctness of the copy of a judgment is also essential in order to enable the appellate court to make interlocutory orders which may have serious consequences.
In the case of an appeal by the accused he may ask for the stay of the execution of the order, e.g., of the realisation of the fine or he may move the court for bail.
Likewise in the case of an appeal by the State, the State may ask for the accused to be apprehended and brought before the court under warrant of arrest.
Orders made on these applications are all judicial acts and accordingly it is essential that the appellate court in order to take these judicial decisions have proper materials before it.
Therefore, it is of the utmost importance that the copy to be filed with the petition of appeal is a full and correct copy of the judgment or order appealed against.
Under section 76 of the Indian Evidence Act the public officer who is to supply a copy is required to append a certificate in writing at the foot of such copy that it is a true copy and then to put, the date and to subscribe the same with his name and official title.
Therefore, the production of a certified copy ipso facto and without anything more will show ex facie that it is a correct copy on which the appellate court may safely act.
The fact that the appellate court is by law enjoined to peruse the copy of the judgment and take judicial decision on it indicates that it must have before it a correct copy of the judgment 1283 and this further indicates that the copy required to be filed with the petition of appeal under section 419 should be a certified copy which will ipso facto assure the appellate court of its correctness.
It is said that the appellate court may not summarily reject or admit the appeal or make an inter ' locutory order until the record is produced or until a certified copy of the judgment or order is presented before it.
There is no doubt that the court can under section 421 of the Code of Criminal Procedure call for the record of the case, but the court is not bound to do so.
The calling for the records in every case or keeping the proceedings in abeyance until a certified copy is presented before the court is bound to involve delay and there is no apparent reason why there should be any delay in disposing of criminal matters involving the personal liberty of the convicted accused.
All this inconvenience may easily be obviated if section 419 be read and understood to require a certified copy to be filed along with the petition of appeal.
Learned counsel for the appellant urges that in case of urgency the court need not wait until the record or the certified copy is received, but may call upon the appellant to adduce evidence to prove the correctness of the judgment in order to induce the court to act upon it and take a judicial decision thereon.
In the first place there is no such procedure envisaged in the Code of Criminal Procedure.
In the next place adoption of such a procedure may cause much delay and in the third place no question ordinarily arises under section 419 of proving the correctness of the judgment under appeal in the way in which a document is to be proved in order to tender it in evidence in the case.
But assuming that the correctness of the judgment under appeal is to be established then as soon as the appellant is out to " prove" by oral evidence of witnesses the contents of the original judgment so as to establish the correctness of the plain copy filed along with his petition of appeal the question will immediately arise whether such evidence is admissible under the law.
As already stated section 367 of the Code of Criminal Procedure requires the judgment to be 163 1284 reduced to writing.
Section 91 of the Indian Evidence Act provides, inter alia, that in all cases in which any matter is required by law to be reduced to the form of a document and a judgment is so required,,no evidence shall be given for the proof of the terms of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the earlier provisions of that Act.
In the absence of the production of, the original judgment if a witness is put into a witness box and is asked to say whether the copy produced before the appellate court is a correct copy of the original judgment filed of record in the trial court he will necessarily have to say that he read the original judgment and from his memory he can say that the copy correctly reproduces the text of the original judgment.
This means that he will give secondary evidence as to the contents of the original judgment which under the law is required to be reduced to the form of a document.
A further question will, therefore, arise if such evidence, which at best is secondary evidence, is admissible under the Indian Evidence Act.
As already stated the judgment, which under section 367 of the Code of Criminal Procedure has to be in writing and under section 372 has to be filed with the record of the proceedings, becomes, under section 74 of the Indian Evidence Act, a public document. ' As the original judgment is a public document within the meaning of section 74, only a certified copy of such document and no other kind of secondary evidence is admissible under section 65.
This circumstance also indicates that the word " copy " in section 419 means, in the context, a certified copy and so it was held in Ram Lat vs Ghanasham Das (1).
The decision in Firm Chhota LalAmba Parshad vs Firm Basdeo Mal Hira Lal (2), proceeded on its peculiar facts, namely , that no certified copy could be obtained as the original judgment could not be traced in the record and the decision can be supported on the ground that the court had, in the circumstances, dispensed with the production of a certified copy.
(i) A.I.R. (1923)Lab.
(2) A.I.R. (1926) Lah.
1285 Learned counsel for the appellant next urges that the fact that the appellate court to which the petition of appeal is presented is given power to dispense with the filing of a copy of the judgment appealed against indicates that the Legislature did not consider the c. filing of the copy to be essential and that if the filing of the copy is not essential and copy can be wholly dispensed with, a plain copy should be sufficient for the purpose of section 419.
This power of dispensation had to be given to the court for very good reasons.
In certain cases an order staying the operation of the order sought to be appealed from may be immediately necessary and the matter may be so urgent that it cannot brook the delay which will inevitably occur if a certified copy of the judgment or order has to be obtained.
In some cases it may be that a certified copy of the same judgment is already before the same court in an analogous or connected appeal and the filing of another certified copy of that very judgment may be an unnecessary formality.
The circumstance that the court may, in urgent cases, dispense with the filing of a copy does not imply that in a case where the court does not think fit to do so it should be content with a plain copy of the document which ex facie contains no guarantee as to its correctness.
Reference has been made to a number of sections of the Code of Criminal Procedure where the word " copy " has been used and to sections 425, 428, 442 and 511 which, it is said, talk about certified copy and on this circumstance is founded the argument that where the Legislature insists on the production of a certified copy it says so expressly and that as the word "copy" used in section 419 is not qualified by the word " certified " the inference is irresistible that the filing of a plain copy was intended to be sufficient for the purpose of that section.
Turning to the four last mentioned sections, it will be noticed that the first three sections 425, 428 and 442 do not really refer to any certified copy of any document at all.
Section 425 requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it shall certify its judgment or order to the court by which the finding, sentence or 1286 order appealed against was recorded or passed.
It really means that the High Court is to formally communicate its decision on the appeal to the court against whose decision the appeal had been taken.
Likewise section 428 requires the court taking additional evidence to certify such evidence to the appellate court.
Section 442 requires the High Court to certify its decision on revision to the court by which the finding, sentence or order revised was recorded or passed.
Lastly section 511 lays down the mode of proof of a previous conviction or acquittal, namely, by the production of an extract certified under the hand of the officer having the custody of the records of the court to be a copy of the sentence or order.
Therefore, the four sections relied on do not in reality refer to certified copy of a judgment or order supplied to a party on his application for such copy and consosuently no argument such as has been sought to be raised is maintainable.
The question whether a copy in a particular section means a plain copy or a certified copy must depend on the subject or context in which the word " copy " is used in such section.
In many sections relied on, the " copy " is intended to serve only as a notice to the person concerned or the public and is not intended to be acted upon by a court for the purpose of making a judicial order thereon.
We think that N. U. Beg J. rightly pointed out that the object and purpose of such sections are distinguishable from those of section 419 where the copy is intended to be acted upon by the appellate court for the purpose of founding its judicial decision on it.
We do not consider it desirable on the present occasion to express any opinion as to whether any of those sections relied on requires a plain copy or a certified copy.
It will suffice for us to hold that so far as section 419 is concerned, having regard to the context and the purpose of that section, the copy to be filed along with the petition of appeal must be a certified copy.
We have also been referred to several sections of the Code of Civil Procedure where the word " copy " is used.
We do not consider it right to enter upon a 1287 discussion as to the true interpretation of the word " copy" occurring in any of those sections for we think that each section in each Act must, for its true meaning and effect, depend on its own language, context and setting.
In the result, for reasons stated above, we agree that the order passed by the Allahabad High Court on February 8, 1955 was correct and this appeal should be dismissed.
Appeal dismissed.
| % A complaint filed in the court of the Chief Metropolitan Magistrate by the appellant, Chief Controller of Imports and Exports, against respondents Nos. 1 and 2, a private limited company and its Managing Director for the alleged commission of an offence under section 5 of the Imports and Exports (Control) Act, 1947 was subsequently transferred to another court and cognizance of the offence alleged was taken without examining the appellant as proviso (a) of section 200 of the Code of Criminal Procedure was applicable to this complaint.
An application filed by the accused persons for recall of summons and dismissal of complaint was dismissed by the trial Magistrate.
An appeal against the aforesaid order was dismissed by the High Court.
A special leave application filed against the High Court 's order was dismissed by the Supreme Court.
An application made at the trial stage for the discharge of respondent No. 2, the Managing Director on the plea that there was no allegation of any criminal misconduct against him and the Company respondent No. 1 was prepared to admit its guilt and may be appropriately penalised, was dismissed by the trial court.
On appeal, the High Court quashed the process issued against respondent No. 2 on the ground that the order of issuance of process 297 was clearly as a result of non application of mind by the trial Judge because when the process was issued against the petitioners, the Department and the State had merely filed a complaint case along with list of witnesses and documents, and none of the statements of witnesses or copies of documents was produced before the trial Judge, and that respondent No. 2 could not be prosecuted under section 5 of the Act, as the prosecution intended to charge him as principal offender alongwith respondent No. 1 the Company and there were no allegations in the complaint that respondent No. 2 either aided or abetted in the contravention of the licence conditions by respondent No. 1 Company.
Allowing the Department 's appeal, ^ HELD: 1.1 The High Court had not cared to look into procedural law applicable to the factual situation before it.
If a reference had been made to section 200, Proviso (a) of Code of Criminal Procedure, the proceedings against respondent No. 2 could not have been quashed.
[299G H] 1.2 Records of investigation are not evidence in the instant case, and a complaint could not be quashed by referring to the investigation records, particularly when the petition of the complainant did allege facts which prima facie show commission of an offence.
[300B] The High Court overlooked the fact that similar objections raised earlier were rejected by the same High Court, and this decision was upheld by the Supreme Court, and drew a distinction between the two situations, by saying that records of investigation were not available on the earlier occasion.
[300A B] 1.3 The licensee was a company and a company by itself could not act, and has to act through someone.
Since there was clear allegation that the Managing Director had committed the offence, acting on behalf of the licensee, there was no justification for quashing the proceedings against respondent No. 2.
[300C] Order of the High Court is vacated.
However, since the offence was committed 20 years back, it would not be in the interest of justice to allow a prosecution to start and the trial to be proceeded with at this belated stage even though respondent No. 2 has no equity in his favour and the delay has been mostly on account of his mala fide move.
Hence the case against respondent No. 2 is directed to be closed forthwith.
[300E,G]
|
vil Appeal No. 4336 (NL) of 1991, From the Judgment and Order dated 14.9.1989 of the Madras High Court in Writ Appeal No. 697 of 1989.
M.K. Ramamurthy, Mrs. Chandan Ramamurthy and M.A.Krish namurthy for the Appellants.
F.S.Nariman, R.F.Nariman, T.S.Gopalan, Raian Karanjiwa la, Mrs. Manik Karanjiwala, Mrs. V.S.Rekha and Sajai Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
The Reptakos Brett & Co. Ltd. (hereinafter called the 'Company ') is engaged in the manufacture of pharmaceutical and dietetic speciality products and is having three units, two at Bombay and one at Madras.
The Madras factory.
with which we are concerned, was set up in the year 1959.
The Company on its own provided slab system of Dearness Allow ance (DA) which means the DA paid to the workmen was linked to cost of living index as well as the basic wage.
The said double linked DA Scheme was included in various settlements between the Company and the workmen and remained operative for about thirty years.
The question for our consideration is whether the Company is entitled to re structure the DA scheme by abolishing the slab system and substituting the same by the Scheme prejudicial to the workmen on the ground that the slab system 134 has resulted in over neutralisation thereby landing the workmen in the high wage island.
The first settlement between the Company and the workmen was entered into on August 11, 1964.
While accepting the double linked DA it further provided variable DA limited to the cost of living index up to 5.41 5.50.
Further relief was given to the workmen in the settlement dated July 18, 1969 when the limit on the variable DA was removed.
The Company revised the rates of DA on August 7, 1971.
Thereafter, two more settlements were entered into on July 4, 1974, and January 4, 1979, respectively.
Slab system with variable DA continued to be the basic constituent of the wage structure in the company from its inception.
The position which emerges is that in the year 1959 the Company on its own introduced slab system of DA.
In 1964 in addition, variable DA to the limited extent was introduced but the said limit was removed in the 1969 settlement.
The said DA scheme was reiterated in the 1979 settlement.
It is thus obvious that the slab system of DA introduced by the Company in the year 1959 and its progressive modifications by various settlements over a period of almost thirty years, has been consciously accepted by the parties and it has become a basic feature of the wage structure in the Company.
The workmen raised several demands in the year 1983 which were referred for adjudication to the Industrial Tribunal, Madras.
The Company in turn made counter demands which were also referred to the said Tribunal.
One of the issues before the Tribunal was as under: "Whether the demand of the Management for re structuring of the dearness allowance scheme is justified, if so, to frame a scheme?" The Tribunal decided the above issue in favour of the Company and by its award dated October 14, 1987 abolished the existing slab system of DA and directed that in future dearness allowance in the Company, be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of living Index 1936 base.
The Tribunal disposed of the two References by a common award.
The Company as well as the workmen filed separate writ petitions before the Madras High Court challenging the award of the Tribunal.
While the two writ petitions were pending the parties filed a joint memorandum dated June 13, 1988, before the High Court in the following terms: 135 "In view of the settlement dated 13.5.1988 entered into between the parties, a copy of which is enclosed, both the parties are not pressing theft respective writ petitions except with regard to the issue relating to re structuring of dearness allow The learned Single Judge of High Court upheld the find ings of the Tribunal on the sole surviving issue and dis missed the writ petition of the workmen.
The writ appeal filed by the workmen was also dismissed by the High Court by its judgment dated September 14, 1989.
The present appeal by special leave is against the award of the Tribunal as upheld by the High Court.
Mr. M.K. Ramamurthy, learned counsel for the appel lants has raised following points for our cosideration: (i) The Tribunal and the High Court grossly erred in taking Rs. 26 as a per war wage of a worker in Madras region and, on that arith metic, reaching a conclusion that the rate of neutralisation on the basis of cost of living index in December 1984 was 192 per cent.
(ii) Even if it is assumed that there was over neutralisation unless the pay structure of the workmen is within the concept of a 'living wage ' and in addition it is proved that financially the Company is unable to bear the burden the existing pay structure/DA scheme cannot be revised to the prejudice of the work men.
(iii) In any case the DA scheme which was voluntarily introduced by the Company and reiterated in various settlements cannot be altered to the determent of the workmen.
" Before the points are dealt with, we may have a fresh look into various concepts of wage structure in the industry.
Broadly, the wage structure can be divided into three categories the basic "minimum wage" which provides bare subsistence and is at poverty line level, a little above is the "fair wage" and finally the "living wage" which comes at a comfort level.
It is not possible to demarcate these levels of wage structure with any preci sion.
There are, however, well accepted norms which broadly distinguish one category of pay structure from another.
The Fair Wages Commit tee, in its report published by the Government of India, Ministry of Labour, in 1949, defined the "living wage" as under: "the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, 136 clothing and shelter but a measure of frugal comfort including education for the the chil dren, protection against illhealth, require ments of essential social needs, and a measure of insurance against the more important mis fortunes including old age." "The Committee 's view regarding "minimum wage was as under: "the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficien cy of the worker.
For this purpose the minimum wage must also provide for some measure of education.
medical require ments and amenities.
" The Fair Wages Committee 's Report has been broadly approved by this Court in Express Newspapers (P) Ltd. vs Union of India, and Standard Vacuum Refining Co. of India vs Its Workmen and Anr., ; The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 declared the wage policy which was to be followed during the Second Five Year Plan.
The Committee accepted the following five norms for the fixation of 'minimum wage ': "(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded.
(ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr. Aykroyd for an average Indian adult of moderate activity.
(iii) Clothing requirements should be esti mated at per capita consumption of 18 yards per annum which would give for the average workers ' family of four, a total of 72 yards.
(iv) In respect of housing, the rent corre sponding to the minimum area provided for under Government 's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage.
(v) Fuel, lighting and other 'miscellaneous ' items of expenditure should constitute 20% of the total minimum wage.
" This Court in Standard Vacuum Refining Compa ny 's case (supra) has referred to the above norms with approval.
The concept of 'minimum wage ' is no longer the same as it was in 137 1936.
Even 1957 is way behind.
A worker 's wage is no longer a contract between an employer and an employee.
It has the force of collective bargaining under the labour laws.
Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today.
Keeping in view the socio economic aspect of the wage structure, we are of the view that it is necessary to add the following additional component as a guide for fixing the minimum wage in the industry: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc.
should further constitute 25% of the total minimum wage.
The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsist ence level.
The employees are entitled to the minimum wage at all times and under all circumstances.
An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
A living wage has been promised to the workers under the constitution.
A 'socialist ' framework to enable the working people a decent standard of life, has further been promised by the 42nd Amendment.
The workers are hopefully looking forward to achieve the said ideal.
The promises are pilling up but the day of fulfilment is nowhere in sight.
Industrial wage looking as a whole has not yet risen higher than the level of minimum wage.
Adverting to the first point raised by Mr. Ramamurthy it would be convenient to quote from the award the conten tions of the Company and the findings reached by the Tribu nal.
The Company 's case as noticed by the tribunal is as under: "It is stated that the pre war wage of a worker in the Madras Region was Rs.26.
It is evidenced by the decision of the Labour Appel late Tribunal reported in 1951 1I L.L.J. page 314 (Buckingham and Carnatic Mills vs Their workers) and 1951 II L.L.J. page 718 (Good Pastor Press vs Their workers).
It is contend ed that taking the pre war minimum wage of worker at Madr,ks being R:,. 26 per month equivalent to 100 per cent neutralization the rate of Dearness Allowance at 26 paisa for every point above 100 points of cost of living index would work out to 100 per cent neutrali sation.
On the above basis at 138 2780 points of cost of living index in Decem ber 1984, the 100 per cent neutralised wage should be Rs. 722.80 (basic wage of Rs. 26 plus dearness allowance of Rs. 696.80).
As against the above wage a workman of lower grade in the Petitioner 'Company in December 1984 was getting a total wage of Rs. 1,`394/comprising of basic plus dearness allowance plus house rent allowance and the rate of neutralisation of dearness allowance correspondingly works out to 192 per cent.
" The Tribunal accepted the above contentions of the Company.
The evidence produced by the Company, regarding prevailing DA schemes in the comparable industries in the region, was also taken into consideration.
The Tribunal finally decided as under: "Taking an overall view of the rate of dear ness allowance paid by these comparable con cerns in the region and the higher total emoluments received by the workmen in this establishment, the slab system of dearness allowance now in existence shall stand abol ished and in future, dearness allowance in the Petitioner Management would be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of Living Index 1936 base and it shall be effec tive from the month in which the award is published in the Tamil Nadu Gazette.
" The learned Single Judge of the High Court upheld the above findings of the Tribunal.
The Division Bench of the High Court, in writ appeal, approved the award and the judgment of the learned Single Judge in the following words "The learned judge has observed that the counsel for the Management had taken him through all the relevant materials which were filed in the form of Exhibits before the Tribunal in order to show that the matter of over neutralisation cannot be in dispute.
Thus the learned Judge proceeded on the basis that there is over neutralisation which called for devising a scheme for restructuring the wage scale.
This finding cannot be interfered with as no materials have been placed before us by the learned counsel for the appellant to show that the exhibits which were perused by the learned Judge do not support his conclusion.
Hence, we hold that the contention that there are no compelling circumstances in this case to revise the pattern of dearness allowance is unsustainable.
" 139 According to the Company the only purpose of DA is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before.
In other words the DA is to neutralise the rise in prices.
the said purpose can be achieved by providing maxi mum of 100 per cent neutralisation.
Accepting the calcula tions of the Company based on Rs. 26 being the pre war (1936) minimum wage in Madras region the Tribunal came to the finding that there was 192 per cent neutralisation.
The Tribunal accepted Rs. 26 as the pre war minimum wage in Madras region on the basis of the decisions of Labour Appellate Tribunal of India in Buckingham and Carnatic Mills Ltd. vs Their workers, and Good Pastor Press vs Their workers, In Buckingham case the appellate tribunal came to the conclusion that the basic wage of the lowest category of operatives on the living cost of index of the year 1936 was Rs. 28.
The said wage included Rs.16 1/2 as expenses on diet.
The workers relied upon the Textile Enquiry Commit tee 's report to claim 25% addition to the diet expenses.
The Appellate Tribunal rejected the report on the ground that the recommendations in the said report were for the purpose of attaining the standard of "living wage" and not of 'min imum wage '.
The Appellate Tribunal stated as under: "The Union however, contends that Dr. Akroyd revised his opinion when submitting a specially prepared note to assist the Textile Enquiry Committee, Bombay of which Mr. Justice Divatia was the Chairman, where he is said to have stated that 25 per cent more will have to be added for obtaining a balanced diet for a minimum wage earner.
The report of that Enquiry Committee, which was published in 1940, however, shows that Dr. Akroyd added 25 per cent as the costs of the extra items to his standard menu such as sugar etc., for the purpose of attaining the standard menu of 'living wages ' (final report of the Textile Labour Enquiry Committee 1940, Vol.
II, pages 70 to 71).
Therefore, for the purpose of fixing 'minimum wages ' that 25 per cent is not to be added.
" The question as to whether the recommendations of Textile Enquiry Committee were in relation to 'living wage ' or 'minimum wage ' came for consideration before this Court in Standard Vacuum case (supra).
This Court held as under: "It is obvious that the Committee was really thinking of what 140 is today described as the minimum need based wage, and it found that judged by the said standard the current wages were deficient.
In its report the Committee has used the word 'minimum ' in regard to some of the constitu ents of the concept of living wage, and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents.
Therefore, though the expression 'living wage standard ' has been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than the need based minimum wage at that time.
If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory." This Court, therefore, in Standard Vacuum case came to the conclusion that the Textile Labour Committee Report in the year 1940 in its calculations did not proceed beyond the minimum level of the wage structure.
It was further held that Rs. 50 to Rs. 55 was the need based minimum wage in the year 1940.
The Appellate Tribunal in Buckingham case, therefore misread the Textile Committee Report and was not justified in rejecting the same on the ground that it related to the category of 'living wage ' We are of the view that it would not be safe to accept the findings of the Appellate Tribunal in Buckingham case as the basis for fixing the wage structure to the prejudice of the workmen.
This court in Standard Vacuum case (supra) has further held that in Bombay the minimum wage in the year 1940 was Rs.50 to Rs.55.
On that finding it is not possible to accept that the minimum wage in the year 1936 in Madras region was Rs.26/28.
So far as the Good Pastor Press case is concerned the question of determining the minimum wage in per war 1936 was not before the Appellate Tribunal.
It only mentioned the fact that Rs.26 was held to be so by some of the subordinate tribunals.
There was no discussion at all on this point.
The Tribunal 's reliance on this case was wholly misplaced.
In any cause we are of the opinion that purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wage structure.
The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices.
There has been sky rocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.
141 We may now move on to the second and third point raised by Mr. Ramamurthy.
We take up these points together.
Mr. F.S. Nariman, learned counsel appearing for the Company, contended that the existing DA scheme can be revised even to the prejudice of the workmen and for that proposition he relied upon the judgment of this Court in M/s. Crown Alumin ium works vs Their Workmen; , Mr. Rama murthy has, however, argued that even if the contention of Mr. Nariman is accepted in principle, the Company has not been able to make out a case for such a revision.
In M/s. Crown Aluminium Works case this Court speaking through Gajendragadkar, J.(as he then was) held as under: "The question posed before us by Mr. Sen is: Can the wage structure fixed in a given indus try be never revised to the prejudice of its workmen? Considered as a general question in the abstract it must be answered in favour of Mr. Sen.
We do not think it would be correct to say that in no conceivable circumstances can the wage structure be revised to the prejudice of workmen.
When we make this obser vation, we must add that even theoretically no wage structure can or should be revised to the prejudice of workmen if the structure in question falls in the category of the bare subsistence or the minimum wage.
If the wage structure in question falls in a higher cate gory, then it would be open to the employer to claim its revision even to the prejudice of the workmen provided a case for such revision is made out on the merits to the satisfaction of the tribunal.
In dealing with a claim for such revision, the tribunal may have to con sider, as in the present case whether the employer 's financial difficulties could not be adequately met by retrechment in personnel already effected by the employer and sanc tioned by the tribunal.
The tribunal may also enquire whether the financial difficulties facing the employer are likely to be of a short duration or are going to face the em ployer for a fairly long time.
It is not necessary, and would indeed be very difficult, to state exhaustively all considerations which may be relevant in a given case.
It would, however, be enough to observe that, after considering all the relevant facts, if the tribunal is satisfied that a case for reduc tion in the wage structure has been estab lished then it would be open to the tribunal to accede to the request of the employer to make appropriate reduction in the wage struc ture, subject to such conditions as to time or otherwise that the tribunal may deem fit or expedient to impose.
" 142 The above dicta was reiterated by this Court in Ahmeda bad Mills Owners, Association etc.
vs The Textiles Labour Association, wherein this Court through Gajendragadkar, CJ, laid down as under: "The other aspect of the matter which cannot be ignored is that if a fair wage structure is constructed by industrial adjudication and in course of time, experience shows that the employer cannot bear the burden of such wage structure, industrial adjudication can, and in a proper case should revise the wage struc ture, though such revision may result in the reduction of the wages paid to the employees. . . . if it appears that the employer cannot really bear the burden of the increasing wages bill industrial adjudication, on principle, cannot refuse to examine the employer 's case and should not hesitate to give him relief if it is satisfied that if such relief is not given, the employer may have to close down his business. . .
This principle, however, does not apply to cases where the wages paid to the employees are no better than the basic minimum wage.
If, what the employer pays to his employees is just the basic sub sistence wage, then it would not be open to the employer to contend that even such a wage is beyond his paying capacity.
" The ratio which emerges from the judgments of this Court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage.
But in an industry or employment where the wage struc ture is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency.
It is, therefore, for the management, which is seeking restructuring of DA scheme to the disadvantage of the workmen to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage struc ture.
Mr. Ramamurthy further relied upon this Court 's judgment in MonthlyRated workmen at the Wadala factory of the Indian Hume Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; and contended that an employer cannot be permitted to abolish the DA scheme which has worked smoothly for almost thirty years on the plea that the said scheme is more beneficial than the DA schemes adopted by other indus tries in the region.
In the Indian Hume Pipe Co. Ltd case the management pleaded that the dearness allowance enjoyed by the workmen was so high in certain cases that neutralisation was at rates much higher than 100%.
It was further contended that the manage ment did not have the capacity to pay the slab system of DA and in the event of a claim for similar DA by other workmen the management might have to close down the factories.
Khalid, J. spoke for the court as under: "We thought it necessary to refer to the various awards read by Mr.Pai only for the completeness of the judgment.
It has to be borne in mind that in most of these cases, awards were passed at the instance of the employees when demands were made for raising the dearness allowance paid to them.
Here, we have the case of the employer trying to get over a system of dearness allowance which had worked smoothly for 18 years, on the specious plea that at the time the slab system was introduced, it was not in the expectation of anyone that the cost of price index would spiral up so much as to make it impossible for the company to pay according to this scheme.
From the materials available we do not find that this plea can be accepted.
The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year. . . we do not think it necessary to deal at length about the evolu tion of the concept of dearness allowance.
Suffice it to say that this Court has, often times, emphasised the need for a living wage to workmen instead of a subsisting wage.
It is indeed a matter of concern and mortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream.
Nothing short of a living wage can be a fair wage.
It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extent at least free from want.
It is against this background that a claim by em ployers to change the conditions of service of workmen to their detriment has to be consid ered and it is against this background that we have considered the award review.
We are not satisfied that a case has been made out on the facts available for a change. . . .
The question is often asked as to whether it would be advisa ble for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises.
Normally the answer would be in the negative.
Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except inexcep tionally rare cases, 144 fail within the category of mere "sub sisting wages".
That being so, it would be inadvisable to tinker with the wage structure of workmen except under compelling circum stances.
" We agree with Mr. Ramamurthy that the DA scheme which had stood the test of time for almost thirty years and had been approved by various settlements between the parties has been unjustificably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable.
Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. vs Killick & Allied Companies Employees ' Union, to support the findings of the Tribunal and the High Court.
The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers.
In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance.
The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen.
Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: "These figures as detailed in exhibit
M 13 would establish that the company is not in a finan cial position to bear the additional burden on account of increased wages.
" From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme.
We do not agree with the learned counsel.
The Tribunal gave the above finding in the refer ence made on behalf of the workmen asking for bonus increase and various other monetary benefits.
While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers ' demands.
The Tribunal nowhere considered the financial position of the company vis avis the existing DA scheme.
The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA.
The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme.
It has been pleaded by the company that its workmen are in a high wage island and as such the revision of DA scheme was justified.
The 145 Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen.
On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region.
There is, however, no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need based minimum wage.
In any case there is a very long way between the need based wage and the living wage.
Mr. Nariman reminded us of the limits on our jurisdic tion under Article 136 of the Constitution of India and relying upon Shaw Wallace & Co. Ltd. vs Workmen, and The Statesman Ltd. vs Workmen, ; contended that so long as there is "some basis, some materi al to validate the award" the "jurisdiction under Article 136 stands repelled".
The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this court in various judgments referred to by us.
Manifest injustice has been caused to the workmen by the award under appeal.
We see no force in the contention of the learned counsel.
In view of the above discussion we are of the view that the Tribunal was not justified m abolishing the slab system of DA which was operating in the Company for almost thirty years.
We allow the appeal and set aside the award of the Tribunal and the judgment of the learned Single Judge in the writ petition and of the Division Bench in the Writ Appeal.
The reference of the Company on the issue of re structuring of the dearness allowance is declined and rejected.
The Appellant workmen shall be entitled to their costs through out which we assess at Rs. 25,000.
| Proceedings for acquisition of appellant 's land were initiated.
and a Notification under section 4(1) of the Land Acquisition Act, 1894 was published in the Government Ga zette.
The substance of the said Notification was published in the locality long after 40 days within which it was required to be published under Section 4(1) of 1894 Act 'as amended by the Andhra pradesh(Amendment) Act, 1983.
During the course of enquiry regarding the fixation of compensa tion, the appellant consented to his land being acquired provided he was given compensation in a lump sum.
However, before any award was made he withdrew his consent and filed a petition challenging the validity of the acquisition proceedings.
A Single Judge of the High Court dismissed his petition by holding that since he gave his consent to the acquisition of land he could not challenge the acquisition proceedings.
On appeal the decision of the Single Judge was confirmed by the Division Bench of the High Court.
Against the decision of the Division Bench of the High Court, an appeal was filed in this Court.
Allowing the appeal, this Court, HELD: 1.
The Single Judge and the Division Bench of the.
High Court were clearly in error in dismissing the respective writ petition and the appeal filed by the appel lant respectively.
The appellant 's statement that he was willing to accept the acquisition provided a lump sum com pensation was awarded to him amounted 115 116 in law to no more than an offer in terms of the Contract ACt.
The said offer was never accepted by the Land Acquisi tion Officer to whom it was made.
Leave alone, making the award of lump sum compensation, no award at all was made by the said officer awarding compensation to the appellant till the aforesaid offer was withdrawn by the appellant or even till the writ petition was filed.
Till the offer was accept ed there was no contract between the parties and the appel lant was entitled to withdraw his offer.
There was nothing inequitable or improper in withdrawing the offer, as the appellant was in no way bound to keep the offer open indefi nitely.
1117 G H, 118 A] 2.
The acquisition of the appellant 's land is bad in law because the substance of the Notification was not pub lished in the locality within forty days of the publication of the Notification in the Government Gazette.
The time limit of forty days for such publication in the locality has been made mandatory by section 4(1) of the 1894 Act as amended by the Andhra Pradesh (Amendment) Act, 1983.
Such non compliance renders acquisition bad in law.
[118 C]
|
Civil Appeal No. 263 of 1982.
Appeal by special leave from the Judgment and order dated the Ist September, 1980 of the Andhra Pradesh Administrative Tribunal Hyderabed in Transferred Petition No. 1663 of 1976.
A. Subba Rao for the Appellant.
P.P. Rao and G.N. Rao for Respondent No. 1.
T. V. R. Tatachari, and A. V. V. Nair for the Respondents, 406 The Judgment of the Court was delivered by DESAI, J.
This appeal by special leave is directed against the decision in Writ Petition No. 1021 of 1975 filed in the Andhra Pradesh High court at Hyderabad which came to be transferred under para 14 (1) of the Andhra Pradesh Administrative Tribunal order 1975 and which was numbered as Transferred Writ Petition No. 1663 of 1976, by which Andhra Pradesh Administrative Tribunal (Tribunal ' for short) allowed the writ petition and quashed the orders permanently absorbing respondents 2 to 10 in the various posts in the office of Deputy Chief Accounts officer, Nagarjuna Sagar Project.
Respondents 2 to 10 in the High Court are the appellants in the present appeal, and original petitioners are respondents 2 to 108.
Deputy Chief Accounts officer is respondent No. 1.
Nagarjuna Sagar Control Board was constituted in the year 1955 charged with a duty to implement N.S. Project.
The Board had the power to recruit required ministerial staff on purely temporary basis.
On August 1, 1959, a decision was taken by the Andhra Pradesh Government to disband the autonomous Board and to convert it into a department of the Government.
On the conversion of the set up of the Board into a department of the Government it became necessary to devise ways and means to absorb the employees recruited by the board.
Number of controversies surfaced and to some extent the present one is one such controversy.
There was an office styled as: The office of the Chief Engineer, N.S. Dam with the Chief Engineer as Head of the Department.
Appellants were serving in the office of the Chief Engineer, N.S Dam Unit.
By the order dated February 8, 1964 appellants were transferred to the office of the Pay and Accounts officer, N.S. Project.
At the time of transfer, appellants were officiating as UDC and were directed to report to the Deputy Chief Accounts officer, N.S. Project to be posted as UDCs.
Since then appellants have been working in the office of the Dy.
CAO and some of them have been even promoted, may be temporarily, to the post of Superintendent.
By the G.O.Ms.
No. 27 PWD dated February 3, 1972, the State Government accorded sanction to the permanent retention of the posts set out in the order with effect from 1.4.1967 in the office of Dy.
Amongst other 38 posts of UDCs were thus made permanent by this order.
The aforementioned order further provided that the posts so made permanent shall be filled in by personnel already working in the Accounts organisation.
It appears that some of the appellants made 407 a representation to the Dy.
CAO for the permanent absorption in A his office.
Ultimately by various orders made in February 1975, appellants were permanently absorbed as UDCs in the establishment of Dy.
CAO and they were given seniority as provided in Rule 27 of Andhra Pradesh Ministerial service Rules The respondents 2 to 108 who were petitioners before the Tribunal were working as UDCs or LDCs since the inception of their career in the office of Dy.
They were initially recruited as LDCs during the period 1959 65.
Some of them were promoted as UDCs from 1961 onwards.
They were aggrieved by the permanent absorption of the present appellants who were respondents in the High Court.
They accordingly filed the writ petition from which this appeal arises, contending that the appellants were holding substantively post of UDC in the office of the Chief Engineer and they were not transferred but sent on deputation in the Pay and Accounts office as per the order dated February 8, 1964 and other like orders by the Chief Engineer, N.S. Dam and they had a permanent lien in the parent department and therefore, they could not be absorbed in the office of the Dy. CAo.
It was, therefore, contended that they may be repatriated to the parent department but in any event even if these are not to be repatriated they could not claim to be absorbed permanently over the respondents who have been since the inception of their career working in the office of Dy.
The specific contention was that the Dy.
CAO not being the Head of the Department, the provision contained in Rule 3 (2) of Andhra Pradesh Ministerial Service Rules, 1961 would not be attracted and therefore the appellants could not be said to have been recruited by transfer and therefore, could not have been absorbed and they had no right to either claim any permanent post or promotion in the office of the Dy. CAO.
The submission was that the permanent retention and absorption of the appellants adversely affected the promotional prospects of the present respondents and the retention and absorption and consequent seniority being contrary to relevant rules must be struck down as invalid The learned member of the Tribunal held that the Dy.
had not the powers of the Head of a Department.
It was not therefore, within his competence to absorb and retain the appellants in his office and confirm them against the posts made permanent by the G.O.Ms. No. 27 dated February 3, 1972.
As a corollary it was held that the various orders made in February 1975 permanently 408 transferring, absorbing and retaining and consequently granting seniority to the appellants were violative of the rules and were struck down.
Hence this appeal by the original respondents 2 to 10 Appellants indisputably were working as UDCs for a period of more than 3 years before they came to be transferred by the Chief Engineer to the office of Dy.
CAO in February 1964.
This order clearly shows that the transfer was for administrative convenience.
No where the orders recite that the transfer was at the request of the transferred personnel The order is the usual short cryptic government order which recites that the UDCs whose names were set out in the order were transferred to P.A.O. 's office, N.S. Project.
The order directs all the transferred UDCs to report for duty to Dy.
CAO, N.S. Project immediately on their relief.
The language of this order leaves no room for doubt that the head of the department under whom the appellants were working transferred them for administrative reasons and for exigencies of service.
Complying with this order, the appellants reported for duty to the Dy.
CAO and since then, except appellant No. 9, the rest of them have been continuously working as UDC and have earned temporary promotion as Superintendent.
So far there is no controversy.
The Tribunal nowhere examined the power of the Chief Engineer, N.S. Dam Project to transfer persons working under him to the office of Dy.
It must therefore, be assumed that he had the power to transfer appellants to the office of the Dy. CAO.
It does not transpire from the record that the transfer was at the request of transferees.
lt does not appear that these persons held the lien in the parent department.
It does not transpire from the record that they were given any proforma promotions in the parent department.
Virtually, since the transfer, they have been treated as part and parcel of the establishment of Dy.
The appellants were holding the post of UDC for a period of more than 3 years prior to their transfer from the offices of the Chief Engineer to the office of the Dy. CAO.
Indisputably, therefore, when they were transferred and occupied the identical post in the office of the Dy. CAO, some of the respondents working in the office of the Dy.
CAO would have been adversely affected because in the absence of the appellants, if it became necessary to have more posts in the 409 category of UDC, obviously some of the LDCs working in the office of the Dy.
CAO could have been promoted.
This becomes manifest from the judgment of a Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 96 of 1970.
After the appellants were transferred, their services were regularised by the Chief Engineer as per his proceedings dated August 11, 1968.
This proceeding was challenged by some of the persons similarly situated like the present respondents on the ground that the present appellants had come on deputation and not on transfer and they cannot be given seniority over those who joined service in N.S. Dam Unit from the inception of their career.
The learned Single Judge dismissed the petition holding that the present appellants were transferred on administrative ground; that the temporary posts which they filled in were converted into permanent posts and the appointments of the appellants in those posts were regularised.
It was held that the transfer was on administrative ground, and therefore, their length of service in the parent department had to be taken into account for the purpose of determining their seniority.
On this finding, the writ petition was dismissed, and the appeal met with the same fate.
Thus the first challenge failed.
Appellants were thus given seniority over respondents in the office of the Dy. CAO.
We have serious doubts whether the Tribunal had jurisdiction to reopen the settled question about the status of the present appellants in the office of the Dy. CAO, which would incidentally be the effect of the judgment of the Tribunal.
We would presently examine the contention which has found favour with the Tribunal and which in our opinion is wholly untenable.
After reciting the various contentions, the Tribunal addressed itself to the question which in its view was a primary question whether the Dy.
CAO was the Head of the Departments.
The Tribunal observed that it is only if it is held to be office of Head of a Department that the transfer of the present appellants in one out of 4 vacancies of UDC under Rule 3 (2) can be justified.
Frankly we are of the opinion that this question hardly arises in this case, in view of the earlier decision of Andhra Pradesh High Court determining the status of the appellants in the establishment of Dy.
However, keeping aside for the time being the decision of the High Court, we would proceed to examine the contention which found favour with the Tribunal on merits 410 The question of ascertaining whether Dy.
CAO was the Head of the Department arises in view of the provision contained in Rule 3 (2) of the Andhra Pradesh Ministerial Rules 1961.
Before we extract rule 3 (2), it may be mentioned that rule 4 provides for recruitment by promotion.
Rule 3 (2) provies that 'besides promotion as provided in Rule 4 the first vacancy out of every four successive substantive vacancies of Upper Division Clerks in the offices of Heads of Department and Directorates shall be reserved to be filled only from among the suitable Upper Division Clerks working in the subordinate offices of the concerned Head of the Department or Directorate. ' There is a proviso which provided that: 'where any Head of the Department or Directorate has no subordinate office under its administrative control, the vacancy shall be filled by a suitable Upper Division Clerk working in the office of any other Head of the Department or Directorate or any other subordinate office, as the case may be, in this service. ' The Tribunal after referring to this rule took notice of the recital in the impugned order dated February 28, 1975 wherein the Dy.
CAO purported to exercise the power under Rule 3 (2) of the Andhra Pradesh Ministerial Service Rules.
The Tribunal therefore, concluded that apart from any other consideration unless all the conditions for attracting Rule 3 (2) are satisfied, the order must fail.
Undoubtedly, before Rule 3(2) could be attracted.
it must be shown that the vacancies in which appellants were absorbed were in the cadre of UDC and were in the office of the Head of the Department.
If it be so, then out of 4 successive substantive vacancies, the first one is to be reserved to be filled in either from amongst suitable Upper Division Clerks working in the subordinate office or if there is no such office, then according to the proviso, from the office of the other Head of the Department of Directorate.
To ascertain whether Dy.
CAO is the Head of the Department, the Tribunal has referred to the definition of the expression 'Head of a Department ' as set out in Article 6 Chapter Ir of the Andhra Pradesh Financial Code Volume 1, which provided that 'Head of a Department ' means 'any authority specially declared by the Government to be the head of a department '.
Assuming that the definition of the expression 'Head of a Department ' 411 in the Financial Code which is relevant to ascertain the financial A powers of a Head of department, holds good for all other powers conferred on a Head of a Department under other rules, this definition merely provides that any one would be a Head of a Department who is specially declared by the Government to be the Department.
The declaration if and when made under the Financial Code would be confined to the Financial Code and unless expressly provided, it cannot be extended to comprehend the Head of Department under other rules.
With this limitation let us examine whether Dy.
CAO is the Head of the Department.
To begin with the Tribunal records a concession by the learned Government Pleader appearing for the Dy.
CAO that no order has been issued declaring the office of the Deputy Chief Accounts officer, Nagarjuna Sagar organisation as Head of Department, we are a little surprised at the stand taken on behalf of the Dy.
CAO in the High Court and in this Court.
In the High Court an affidavit was filed contesting the writ petition filed by the present respondents meaning thereby justifying the order in favour of the appellants.
After the Tribunal quashed the orders and respondents 2 to 10 filed the present appeal, an affidavit has been filed by one Shri T. Venkatanarayana, styling himself as Director of Accounts which seems to be the new designation for the former designation of Dy.
CAO opposing the appeal of the present appellants.
He desires the present appeal to be dismissed on the ground that original transfer orders were only for one year and there was no order extending the period of transfer.
He also stated that R. vs Surya Rao one of the appellants left the organisation of Dy.
CAO on February 9, 1977 and was again taken in the year 1975 at his request.
The stand appears to be self contradictory and it has left us guessing about this volute face.
Out of abundant caution we have decided to keep aside the stand of the Dy. CAo in this behalf.
More so because there is inexplicable silence on the point whether the Dy. CAo was not the Head of the Department.
It is therefore, necessary to independently examine whether Dy.
CAo virtually enjoys the powers of the Head of a Department, so as to be treated as Head of the Department for the purpose of Rule 3 (2).
When the appellants came to be transferred by the Chief Engineer on February 8, 1964, it appears that the office of Dy.
CAO was administratively subordinate to the Chief Engineer, 412 N. section Dam Project.
If it were otherwise, the Chief Engineer could not have transferred the appellants who were borne on his establishment to the office of the Dy. CAO.
As pointed out earlier, the transfers were on administrative ground and certainly not at the request of the appellants.
Further the transferred personnel could not have been considered as on deputation because if a government servant is sent outside his office on deputation, there are certain benefits to which he would be entitled, which in this case are not shown to have been made available to the appellants.
They were transferred from the post of UDC to the corresponding post of UDC.
In 1964 it atleast appears that Dy.
CAO was not the Head of the Department On, May 3, 1966 by G.O.Ms.
No. 178, it was, inter alia, direct that the staff working in the office of Deputy Chief Accounts officer and Pay and Accounts offices may be treated as Ministerial Service and will be given the scales of pay applicable to the staff in the offices of the Heads of Departments.
lt appears that there was difference in the pay scales available to the staff in the office of the Head of the Department and in subordinate offices.
By this G.O. the ministerial staff in the office of Dy.
CAO was held eligible for scales applicable to the staff in the office of the Head of the Department.
This will impart a flavour to the Dy.
CAO as being the Head of Department.
The Governor of Andhra Pradesh made what are styled as ad hoc rules for the temporary posts of ministerial staff in the offices of the Deputy Chief Accounts officer and Pay and Accounts officers under Financial Adviser and Chief Accounts officer 's organisation, Nagarjuna sagar Project, in exercise of the power conferred by the proviso to article 309 of the Constitution.
By Rule 1, the General and special Rules commonly applicable lo the holders of the permanent posts of the respective categories in the Public Works Department in the Andhra Pradesh Ministerial Service were made applicable to the holders of the temporary posts at Superintendents, UDCs, and Typists and Steno typists in the office of the Deputy Chief Accounts officer and Pay and Accounts officers subject to the modifications set out in the subsequent rules.
One such modification worth noticing is that Dy.
CAO was constituted as appointing authority for the aforementioned staff in his office.
Further the Financial Adviser and Chief Accounts officer, 413 under whom Dy.
CAO was directly working, were declared in 1966 A Secretariat Department.
Accordingly Dy.
CAO came directly under the Secretariat Department, and was invested with power of appointing authority which comprehended the power to appoint persons who would for pay scales applicable to staff in the offices of the Heads of Departments.
R It was however contended that G.O.Ms.
No. 335 dated November 1, 1974 would leave no room for doubt that Dy.
CAO is not the Head of the Department.
The preamble of this G.O. reads as under: "In the circumstances stated by the Financial Adviser and Chief Accounts officer, N.S. Project in the N.O. Note read above, the Dy.
Chief Accounts officer, N.S. Project in is delegated with the following powers instead of declaring him as the Head of the Department.
The extent of delegation of power is irrelevant.
It was submitted that the recitals herein extracted would put the matter beyond the pale of controversy that Dy.
CAO was not only not the Head of the Department but as he lacked powers of the Head of the department certain powers had to be specifically conferred upon him.
On the contrary this would justify the belief that 'Head of department ' for Financial Code and for service rules are not terms of co extensive connotation and the have different meaning in different context For example, for service rules the Dy.
CAO is declared an appointing authority, the power usually enjoyed by Head of a department.
But such Head of Department may not be so declared for the Financial Code.
In the G.O. dated November 1, 1974, it was considered unnecessary to declare him Head of a department for Financial Code and, therefore, certain powers had to be conferred upon him.
A perusal of powers would reveal that they were financial powers one can be a Head of the Department but whose financial powers.
may be curtailed under the Financial Code.
Alternately, one may not be a Head of a Department for other purposes and yet may enjoy full financial control if declared to be 'Head of the Department ' for Financial Code.
We are concerned in this case with the meaning of the expression 'Head of a department ' in Rule 3 (2).
In this connection if the Dy.
CAO is shown to be directly working under a secretariat department without intervention 414 of any higher office and if it is declared an appointing authority and the scales admissible to the ministerial service in its office are those admissible to the staff in the office of the Heads of Department, there is no escape from the conclusion that for purposes of Rule 3 (2), he would be the Head of the Department.
We are fortified this conclusion from U. O. Note dated June 11, 1969 of the office of Financial Adviser and Chief Accounts officer which is the secretariat Department under which Dy.
CAO is directly working.
The Relevant portion of the Note may be extracted.
It reads as under: "Hitherto, recruitment to the post of L.D. Clerks, U.D. Clerks, in Deputy Chief Accounts officers organisation, Nagarjun sagar Project was done based on the allotment of candidates who passed Group II.
Services examination of the Andhra Pradesh Public Service Commission, since, the offices of the Deputy Chief Accounts officer and Pay and Accounts officers, N section Project were considered to enjoy the status of the Heads of the Department offices.
In G. O. Ms. No. 178 PWD, Projects Wing, dated 3.5.1966 orders were issued that the office of the Financial Adviser and Chief Accounts officer Nagarjuna sagar Project may be treated as Secretariat and that the staff working in the offices of the Deputy Chief Accounts officers and Pay and Accounts officer may be treated as Ministerial Service and will be given scale of pay applicable to staff in the offices of the Heads of Departments.
Further the adhoc rules issued in G. O. Ms No. 337 PWD Projects Wing dated 24.9.1968 stipulate that the Deputy Chief Accounts officer, Nagarjuna sagar Project is the appointing authority up to the leavel of Superintendents in his organisation.
If there was any lurcking doubt whether the Dy.
CAO is the Head of the Departments, it stands wholly removed by the Note extracted herein above.
It may be recalled that the power to deaclare Head of the Department as defined in the Financial Code vests in the Government and the Government acts on the advise of the concerned Secretariat Department.
The concerned department is of Financial Adviser and Chief 415 Accounts officer, which is declared as the Secretariat Department.
And this note shows that the Secretariat Department meaning thereby the Government treated the Dy.
CAO as the Head of the Department.
Therefore.
for the purpose of Rule 3 (2), there is no room for doubt that Dy.
CAO was the Head of the Department.
If Dy, CAO was the Head of the Department then in view of Rule 3 (2) with regard to the recruitment in the cadre of UDC first out of every four successive substantive vacancies is to be filled in from the subordinate offices and according to the proviso to Rule 3 (2), if there is no subordinate office, from any other office of the Head of the Departments or Directorate.
There is a recital to that effect in the impugned order which was questioned on the short that Dy.
CAO was not the Head of the Department.
Once that ground is out of the way.
The contention of the respondents must fail.
Briefly, we may point out that this very conclusion can be reached by a slightly different process of reasoning.
Appellants were transferred to the office of Dy.
CAO in 1964.
The judgment of the High Court of Andhra Pradesh.
practically inter partes, affirms the position that appellants were transferred and their appointments by transfer were valid.
Their services were regularised and the High Court held regularisation valid and legal.
They were given seniority over respondents in that orgaoisation.
If appellants have been working for so many years, they were entitled to be absorbed, if there was no legal bar against absorption.
Their entry in office has been held by the Andhra Pradesh High Court in the earlier judgment as valid and regular and they having rendered service for 11 long years before the impugned action was , taken, they were entitled to be absorbed in he department.
Now the present dispute arose when by G. O. dated February 3, 1972, 38 posts in the cadre of UDC were made permanent.
That very G.O. provided that the posts made permanent shall be filled in by the personnel already working in the Accounts organisation.
Appellants were working in the Accounts organisation since 1964.
Their services were regularised.
They were given seniority.
Therefore, at the relevant time in 1975 they were working in Accounts organisation.
They could therefore, be absorbed without reference to Rule 3 (2).
The controversy arose because Dy.
CAO referred to Rule 3 (2) in the impugned order.
In our opinion that 416 was unnecessary.
They could claim to be absorbed according to senitority in the posts made permanent.
And therefore, also the impugned orders were valid but as the Dy.
CAO proceeded to exercise power under Rule 3 (2), we would uphold the validity for the reasons mentioned in the earlier portion of the judgment.
Before we conclude, we must advert to one contention, that as the appellants came at their own request, their seniority would be governed not by the first proviso to Rule 36 (e) but by the second proviso.
The relevant provisos to Rule 36 (e) cater to the method of determining seniority of persons transferred on administrative ground or at the request of Government servant from one department to any other department.
If the transfer was on administrative ground from one department or office to another, the seniority of the transferred Government servant shall be fixed with reference to the date of his first appointment in the former department or office from where he is transferred.
If on the other hand, the transfer is at the request of the concerned Government servant, his seniority will be determined with reference to the date of his appointment in the department to which he is transferred.
After referring to these provisos, it was urged that the appellants were transferred at their re quest and therefore, their seniority has to be determined with reference to the date on which they came to be transferred to the organisation of Dy.
In fact, this contention is concluded by the earlier decision of the Andhra Pradesh High Court.
Even apart from that there is no merit in the contention.
Appellants were transferred in February 1964 and we have referred to the transfer order more than once.
There is not the slightest whisper of transfer on request in that order.
But it was urged that initially transfer was for a period of one year only and the subsequent continuation in the office of the Dy.
CAO does not prescribe the period of transfer.
However, the respondents placed reliance on a corrigendum issued on March 3, 1964 by which following sentence was added to the order of transfer dated Feb. 8, 1964.
The addition reads as under: "The above transfers will be for a period of one year in the first instance.
" It was then pointed out that in the subsequent order the expression used is not 'period of transfer ' but 'period of deputation ' and an inquary was made whether the further extension of period was necessary.
This appears to us to be quibeling.
Except for appellant 9 R.V. Surya Rao, all the appellants have been working in the 417 Office of the Dy.
CAO since 1964 and it is too late in the day now to contend that the subsequent extension was at the request of the appellants Therefore, the seniority would be governed by the first proviso to Rule 36 (e) and not the second proviso and that having been done no question arises for interfering with the same.
As we are of the opinion that the Tribunal was in error in holding that the Dy.
CAO was not the Head of the Department, the decision of the Tribunal is unsustainable and must be quashed and set aside.
Accordingly this appeal is allowed, and the decision of the Andhra Pradesh Administrative Tribunal, Hyderabad in Transferred Writ Petition No. 1663176 dated September 1, 1980 is quashed and set aside and the Writ Petition field by the respondents in the Andhra Pradesh High Court is dismissed with no order as to costs.
S.R. Appeal allowed.
| The respondents were suspected of having committed an offence punishable with death or imprisonment for life under section 302 I.P.C. triable exclusively by the Court of Session.
They surrendered before the Magistrate on November 2, 1974 and were taken into custody.
The investigating officer failed to submit the charge sheet/police report against them within the period of 60 days contemplated by the proviso to sub section
(2) of section 167 of the Code of Criminal Procedure 1973 as it stood prior to its amendment in 1978.
However, the respondents did not apply to the Magistrate for being released on bail but approached the High Court under section 439 Cr.
According to the High Court, the charge sheet against the respondents was submitted on February 5 1975.
The High Court directed that the respondents be released on bail pending trial by the Court of Session holding: (i) that in a case triable exclusively by the Court of Session after the charge sheet has been submitted under section 170 and before committing the accused to the Court of Session the Magistrate has no jurisdiction to authorise the detention of an accused in custody under section 167 Cr.
P.C.; (ii) that in such a case section 209 would not confer power on the Magistrate to commit the accused to custody since after the enactment of the Code of Criminal Procedure, 1973, the procedure before the Magistrate under Chapter XVI of the Code would not be an inquiry within the meaning of section 2 (g) thereof; 538 (iii)that in such a case section 309 would also not enable the Magistrate to A remand the accused to custody since he would not be competent to try the accused; and (iv) that in view of the provision contained in section 207 read with section 209 Cr.
P.C. the Magistrate has to commit the accused forthwith to the Court of Session and it is only after the order of commitment is made that the Magistrate will have power to remand the accused to the custody during and until the conclusion of the trial.
Allowing the appeal, ^ HELD: The view that after the accused is brought before the court along with the police report under section 170 Cr.
P.C. the Magistrate must forth with commit the accused to the Court of Session because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to the Court of Session is made.
is wholly untenable and must be set aside.
[550 F H] Section 170 Cr.
P.C. Obligates the investigating officer to submit the police report, if in the course of investigation sufficient evidence or reasonable ground is made out for the trial or for commitment for trial of the accused, to the Magistrate empowered to take cognizance of the offence upon a police report.
On this report being submitted, the Magistrate takes cognizance of the offence disclosed in investigation as envisaged by S.190.
Cognizance of an offence even if exclusively triable by the Court of Session has to be taken by the Magistrate be cause section 193 precludes the Court of Session from taking cognizance of any offence.
Taking cognizance of an offence under section 190 is a purely judicial function subject to judicial review.
The statutory obligation imposed by section 207 read with section 209 on the Magistrate to furnish free of cost copies of documents mentioned in section 207 to the accused is a judicial function and it has to be discharged in a judicial manner.
It is distinctly possible that the copies may not be ready.
That makes it necessary to adjourn the matter for some time which may be spent in preparing the copies and supplying the same to the accused.
The Magistrate can proceed to commit the accused for trial to the Court of Session only after he judicially discharges the function imposed upon him by section 207.
This conclusion is fortified by the provisions contained in Ss. 226 and 227 of Chapter XVIII which prescribe the procedure for trial of a case by the Court of Session.
When the Magistrate is performing a judicial function under section 207, it would undoubtedly be an inquiry.
The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry.
Thus from the time the accused appears or is produced before the Magistrate with the police report under section 170 and the Magistrate proceeds to enquire whether section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by section 2(g), and section 309(2) would enable the Magistrate to remand the accused to custody till the inquiry to be made is complete.
[547 G H; 548 A B; 549 B H; 550A D] 539 In the instant case, when the matter was before the High Court, the charge sheet had not been submitted against the respondents by the investigating A officer meaning thereby that the investigation was still in progress.
If the High Court had no information when the application for bail moved by the respondents for being enlarged on bail was heard as to whether the charge sheet against the respondents had been submitted to the Magistrate or not, it was futile for the High Court to have undertaken an investigation of a point of law which did not directly arise in the facts before the High Court.
As the High Court had dealt with the matter, it became a precedent and, therefore, it became necessary for the Court to examine whether the view of the High Court was in consonance with the provisions of the Code.
[544 H; 545 A D] The High Court was right in holding that the jurisdiction to grant bail, in case investigation is not completed within the prescribed limit as incorporated in the proviso to section 167 (2) as it then stood, vests in the Magistrate if the accused applies for and is prepared to furnish bail.
Section 167 envisages a stage when a suspect is arrested and investigation is not complete within the prescribed period.
The investigation would come to an end the moment charge sheet is submitted as required under section 170 unless the Magistrate directs further investigation.
[545 E F] State of Bihar and Arn.
vs J.A.C. Saldanha and Ors. ; , referred to.
|
Appeal No. 4488 of 1991.
From the Judgment and Order dated 8.4.91 of the Delhi High Court in C.W.P. No. 749 of 1990.
R. Mohan for the Appellant.
F.S.Nanman, Kailash Vasudev, Ms. Alpana Kitpal and M.J.Paul for the Respondents.
The following order of the Court was delivered: K. JAGANNATHA SHETTY, J. Leave granted.
When we are moving forward to achieve the constitutional guarantee of equal rights for women the life Insurance Corporation of India seems to be not moving beyond the status quo.
The case on hand illustrates this typical atti tude of the Corporation.
The petitioner applied for the post of Assistant in the Life Insurance Corporation of India ("the Corporation").
She was called for written test and also for interview.
She was successful in both the tests.
She was asked to fill a decla ration form which she did and submitted to the Corporation on 25 May 1989.
On the same day, she was also examined by a lady doctor and found medically fit for the job.
The Doctor who examined the petitioner was in the approved panel of the Corporation.
The petitioner was directed to undergo a short term training programme.
After successful completion of the training she was given an appointment letter dated 25, Sep tember 1989.
She was appointed as Assistant in the Corpora tion.
She was put on probation for a period of 6 months.
She was entitled to be confirmed in the service subject to satisfactory work report.
The petitioner took leave from 9 December 1989 till 8 March 1990.
In fact, she applied for maternity leave on 27 December 1989 followed by medical certificate dated 6 Janu ary.
She was admitted to the Nursing Home of Dr. Hira Lal on 10 January 1990.
She delivered a full term baby on 11 January 1990.
She was discharged from Nursing Home on 19 January 1990.
On 13 February 1990, the petitioner was discharged from the serv 149 ice.
It was during the period of her probation.
It would appear from the order of discharge that no ground was as signed in it and it seems to be a discharge simplicitor.
The petitioner moved the High Court under Article 226 of the Constitution challenging that order on the ground that it was not a discharge simplicitor but based on some discrepan cy in the declaration made by her before joining the serv ice.
The Corporation in the counter resisted the case stat ing that the petitioner 's work was not satisfactory and as such under the terms of the appointment she was discharged without notice and without assigning any reason.
The High Court refused to interfere with the termination.
The High Court observed that the Petitioner 's work during the period of probation was found to be not satisfactory.
The petitioner has now appealed to this Court.
When the appeal was listed for preliminary hearing this Court issued notice for final disposal and made an order as follows: "The facts of the case compel us to issue an interim mandamus directing the respondents to put the petitioner back to service and we accordingly issue a direction to the respond ent to reinstate the petitioner within 15 days from the date of receipt of this order.
" The Corporation upon service has filed the counter seeking to justify the termination of the petitioner 's services.
It has been stated that the Corporation discharged the service of the petitioner while she was still a proba tioner.
At the time of discontinuing her services as a probationer, no reasons were given and it was an order of discharge simplicitor.
No stigma was imputed to the peti tioner.
The petitioner was on leave from 9 December 1989 till 8 March 1990.
The petitioner had deliberately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examina tion for fitness.
The petitioner concealed the fact of her being in the family way.
this was revealed later when she informed the Corporation that she had given birth to a daughter.
The Corporation also made reference to the terms of the declaration as filled in by the petitioner on 25 May 1989: "6.
To be filled in by female candidates only in the presence of the Medical examiner: a) Are you married Yes.
b) If so, please state: 150 i) Your Husband 's Name in full & occupation Mr. PRADEEP MATHUR, Law Officer, Central Pollution Control Board, Nehru Place, New Delhi.
ii) State the number of children, if any, and their present ages: One daughter: 1 year and 6 months.
iii) Have the menstrual periods always been regular and painless, and are they so now? . Yes.
iv) How many conceptions have taken place? How many have gone full term? One.
v) State the date of last menstruation: . 29th April, 1989.
vi) Are you pregnant now? .
No. vii) State the date of last delivery: 14th November, 1987.
viii) Have you had any abortion or miscarriage? .
No." It was further alleged in the counter affidavit that the declaration given by the petitioner was false to the knowl edge of the petitioner inasmuch as, as per her own averment she had delivered a full term baby on 11 January 1990.
The petitioner to her own knowledge, could not have had a men struation cycle on 29 April 1989 as stated by her in the declaration on 25 May 1989.
Dr. S.K. Gupta, MD, of Dr. Hira Lal Child & Maternity Home, where the petitioner was admit ted for delivery has certified that the petitioner had LMP on 3 April 1989.
A copy of the certificate of Dr. Hira Lal has also been produced as Annexure to the Counter Affidavit.
It was asserted that the petitioner had deliberately given in her declaration to the Corporation wrong date of menstru ation as 29 April 1989 and she had given her correct date of LMP as 3 April 1989 to Dr. S.K. Gupta.
If she had mentioned the correct date of her menstruation in her declaration her appointment would have been deferred as per rules.
It was also contended that the decision to discharge the petitioner from the service of the Corporation was on 2 grounds: (1) because of a false declaration given by her at the very initial stage of her service; and (2) her work during the period of probation was not satisfactory.
Reference was also made to the Instruction 16 issued by the Corporation as to the Medical examination for recruit ment of Class 1II and Class IV staff.
Clause 16 of the Instructions reads as trader: "16.
MEDICAL EXAMINATION. ' No person shall be appointed to the services of the Corporation unless he/she has been certified to be of sound constitu 151 tion and medically fit for discharging his/her duties.
The certificates in the form given in Annexure IX should be from a doctor, duly authorized for the purpose by the Appointing Authority.
If at the time of medical examina tion, any lady applicant is found to be preg nant, her appointment to the Corporation shall be considered three months after the delivery.
This would be subject to a further medical examination at the candidate 's cost and sub ject to the ranking list continuing to be valid.
" We have examined the matter carefully.
We have nothing on record to indicate that the petitioner 's work during the period of probation was not satisfactory.
Indeed, the reason for termination seems to be different.
It was the declara tion given by her at the stage of entering the service.
It is said that she gave a false declaration regarding the last menstruation period with a view to suppress her pregnancy.
It seems to us that the petitioner cannot be blamed in this case.
She was medically examined by the Doctor who was in the panel approved by the Corporation.
She was found medically fit to join the post.
The real mischief though, unintended is about the nature of the declaration required from a lady candidate.
The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embar rassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term etc.
The Corporation would do well to delete such columns in the declaration.
If the purpose of the declara tion is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the serv ice (the legality of which we express no opinion since not challenged), the Corporation could subject her to medical examination including the pregnancy test.
In the circumstances the interim order already issued is made absolute.
We however, direct that the appellant is not entitled to the salary from the date of discharge till her reinstatement.
With this direction the appeal stands dis posed of but no order as to costs.
S.B. Appeal allowed.
| The petitioner applied for the post of assistant in the Life Insurance Corporation of India.
She was called for written test and also for interview and was successful in both the tests.
She had to file a declaration form which she submitted to the corporation on May 25, 1989.
On the same day she was also examined by a lady doctor who was on the panel of the corporation and found medically fit for the job.
Thereafter she underwent a short term training programme and given a letter of appointment dated September 25, 1989.
She was put on probation for a period of six months and was entitled to be confirmed in the service, subject to satis factory work report.
The petitioner took leave from December 9, 1989 till March 8, 1990.
She applied for maternity leave on December 27, 1989 followed by medical certificate dated January 6, 1990.
She delivered a full term baby on January 11, 1990 in Dr. Hira Lal 's Nursing Home and was discharged from there on January 19, 1990.
On February 13, 1990 the petitioner was discharged from the service during her period of probation.
No ground was assigned and the order seemed to be a discharge simplicitor.
The petitioner moved the High Court, and the High Court, refused to interfere with the termination since the peti tioner 's work during the period of probation.
was found to be not satisfactory.
Thereafter the petitioner appealed to this Court.
After preliminary hearing the court issued an interim mandamus directing 147 the respondent to put the petitioner back to service within 15 days from the date of receipt of the court order and also issued notice for final hearing.
The corporation upon service of notice, filed the coun ter seeking to justify the termination of petitioner 's services on two grounds: (1) that the petitioner had delib erately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examination for fitness.
The same was revealed only when she informed the corporation that she had given birth to a daughter.
(2) Her work during the probation was not satisfactory.
So it was an order of discharge simplicitor.
The Corporation further made reference to Instruction No.16 as to the medical examination for recruitment of class 1II and IV staff, wherein for the purpose of appointment, if at the time of medical examination any lady applicant is preg nant, her appointment shall be considered three months after the delivery.
Granting the appeal, the Court, HELD: While we arc moving forward to achieve the consti tutional guarantee of equal rights for women, the Life Insurance Corporation of India seems to be not moving beyond the status quo.
In the instant case there is nothing on record to indicate that the petitioner 's work during the probation was not satisfactory.
The reason for termination was only the declaration given by her at the stage of enter ing the service, though the petitioner was medically exam ined by the lady doctor and found her medically fit to join the post.
[148 D, E, 151 C] The real mischief though unintended is the nature of the declaration required from a lady candidate specially the particulars required to be furnished under columns (iii) to (viii) which are indeed embarrassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems.
The corporation would do well to delete such columns in the declaration.
If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service, the Corporation could subject her to medical examination including the pregnancy test.
[151 D F] The interim order already given is made absolute though the appellant is not entitled to the salary from the date of discharge till her reinstatement.
[151 G] 148
|
Appeal No. 355 of 1981.
From the Judgment and Order dated 27.10.1980 of the Delhi High Court in S.A.O. No. 241 of 1979.
G.L. Sanghi and S.L. Aneja for the Appellant.
K. Parasaran, Gopal Subramanium, Arvind Verma and Mukul Mudgal for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
For the view we take in this appeal by special leave and leaning as we would be on our discretion ary power under Article 136 of the Constitution, no elabo rate details are necessary of the facts involved therein and for its disposal by a brief order.
The appellant, Subhash Mehta, more than two decades ago obtained a residential lease of the first floor in premises bearing No. D 32, South Extension, Part II, New Delhi from Dr. S.P. Choudhary (now dead) the landlord who was himself residing on the ground floor thereof.
The settled rent was Rs.800 per mensem.
The landlord on 508 November 27, 1972 served a notice on the tenant demanding arrears of rent from September 1, 1972 onwards.
The demand having not been met he instituted an eviction petition before the Rent Controller, Delhi on March 13, 1973 on grounds of non payment of rent as also on other grounds.
On June 1, 1973 the Rent Controller passed an order under section 15(1) of the Delhi Rent Control Act, 1958 (hereinaf ter referred to as the 'Act ') directing the tenant to depos it arrears of rent within one month from the date of the order and further to pay month to month rent by the 15th of every calendar month.
The appellant, within the period allowed, deposited Rs. 10,000 to cover arrears of rent as well as to cover future rent uptill September 15, 1973.
Thereafter neither on October 15, 1973 nor on November 15, 1973, did the tenant deposit monthly rent as required by the aforesaid order of the Rent Controller.
He was alleged to have defaulted on that count.
Yet on December 1, 1973 he made a deposit of Rs.2,800 partly covering the default of the previous period.
The landlord took objection to the late deposit and after much debate the Rent Controller struck off the defence of the appellant.
The Rent Appellate Tribunal, Delhi set aside the order of the Rent Controller striking out the defence of the tenant on appeal by the tenant and remitted the case back to the Rent Controller for further proceedings.
Second appeal to the High Court of Delhi by the landlord was dismissed.
The Additional Rent Controller who became seisin of the matter on remand went into all the grounds as originally raised in the eviction petition; the other grounds, besides the tenant being in arrears of rent, being sub letting, conversion of the user of premises from residential to commercial, the tenant having acquired vacant possession of a residential house in M 18, Green Park Extension, New Delhi and for bona fide requirement of the daughter of the land lord who being a student of M.B.B.S, was expected to set up medical practice.
The Additional Rent Controller by his order dated December 12, 1978 ordered eviction of the tenant on the sole ground of non payment of future rent in terms of his order passed under section 15(1) of the Act, granting the tenant two months ' time to vacate the premises.
The other grounds of eviction were rejected.
The tenant 's appeal before the Rent Control Tribunal centered round the sole question of delayed payment of arrears of rent and of the scope and rigour of section 15(1) of the Act.
In assailing the order of the Additional Rent Controller, reliance was placed by the tenant on a judgment of this Court in Hem Chand vs Delhi Cloth Mills, to contend that even if the tenant had not strictly complied 509 the terms of the order made under section 15(1) of the Act in as much as depositing future rent late it was not impera tive in all events of the defence of the tenant being struck off and a fair amount of discretion had been left with the Rent Controller under section 15(7) which should have been exercised in his favour and before his defence was to be struck off the Rent Controller had to come to the view that his conduct was wilful or contumacious in disobeying the order made under section 15(1) of the Act, and which in the instant case he had failed to record.
Even being aware of these principles the Rent Control Tribunal on August 18, 1979 dismissed the appeal observing that no infirmity in the order of the Additional Rent Controller could be found.
On the same lines and reasoning second appeal of the tenant was dismissed by the High Court of Delhi on October 27, 1980 keeping maintained the ejectment of the tenant for non compliance of the order made under section 15(1) of the Act.
This has led to the instant appeal on the grant of special leave.
The landlord Dr. S.P. Choudhary as hinted earlier died in the year 1981 during the pendency of this appeal leaving behind a widow and a daughter; the latter now being a divor cee rearing a minor son.
This is the uncontroversial asser tion of the successor landlords.
The eviction order in their favour has been assailed by Mr. Sanghi, learned counsel for the tenant appellant on the strength of the decision of this Court in Ram Murti vs Bhola Nath and Another, stressing the point that the words 'as required by section 15(1) of the Act ' occurring in sub section (7) of section 15 must be construed in a reasonable manner and that the said provision confers a wide discretion on the Rent Controller not to strike off the defence of the tenant which indicates that defences could still be open to the tenant under the Act to claim plain protection under section 14(2) thereof.
In that case this Court ruled that the Rent Con troller necessarily by legal implication has power to con done the default on the part of the tenant for deposit of future rent or to extend time for such deposit.
On the said plea advanced on behalf of the tenant the result sought to be achieved is that the delay in making deposit of future rent be excused saving him from eviction.
The tenant had before the Rent Controller while explaining cause for late deposit of future rent put up the plea that the counsel present at the time of the passing of the order under sec tion 15(1) in place of his engaged counsel had only intimat ed to him about the payment of arrears of rent and not about the deposit of future rent by the 15th of every calendar month.
On that basis the order of eviction was sought to be upset by accepting such plea of the tenant.
On the other hand, learned counsel for the successor landlords 510 tactically took shelter behind the other grounds of eviction which were rejected by the Additional Rent Controller and besides raising them vehemently before us projected that in the facts and circumstances of this case and the subsequent events which have come by, this Court should refrain from interfering in the matter under Article 136 of the Constitu tion.
On such stance adopted it is plain that the ground on which eviction has been maintained before the Tribunal and the High Court concurrently the successor landlords seeming ly had an uphill task to have it maintained in view of Ram Murti 's case (supra).
Yet, without conceding on that score other grounds of eviction were pressed despite opposition by learned counsel for the tenant that these grounds were neither pressed in the court of the Rent Control Tribunal nor in the High Court while supporting the order of eviction and no cross appeals in these two forums were filed by the landlord, which if serious he legitimately could.
It is true that the Tribunal and the High Court are both silent on the point.
The order of the Additional Rent Controller suggests that the tenant is an industrialist.
His finding is that within the years 1971 to 1974 he was active in incorporating three companies and that he was a proprietor of M/s. Globe Marketing and Management Limited, a Director of M/s. Sports Equipment Private Limited and again a Director in M/s. Indian Consultants Private Limited.
His further finding is that while living in the demised premises he had floated these companies and later taken in other directors.
In so far as the latter two companies were concerned, this act of the tenant was not sub letting, assigning or parting with the possession of the disputed premises as held by the Rent Controller.
Sequelly the finding further recorded was that there was no misuser of the disputed premises inasmuch as the respective offices run by the companies therein had caused no damage to the premises.
With regard to the fact that the tenant had acquired another premises at M 18, Green Park Extension, New Delhi the Rent Controller took the view that factually the father of the tenant had acquired the same and the tenant could not live in that premises with his father as a matter of right.
Lastly with regard to the bona fide requirement of the landlord the Rent Controller took the view that the landlord 's family comprising of himself, his wife and daughter had sufficient accommodation in their possession even though his daughter had to estab lish practice as a doctor.
The additional plea of the suc cessor landlords as given out in their counter affidavits now is that the telephone connections standing in the name of afore referred three companies, with which the tenant is intimately connected, are at the demised premises as per the Mahanagar Telephone Nigam Directory 511 and that the tenant is a rich and well:connected industrial ist deserving no protection of the rent laws, misplacedly sought by him.
We have pondered over the matter and have weighed every aspect of the case.
The facts and circumstances now emerging are that the successor landlords are two ladies; one a widow and the other a divorcee.
If we were to allow the appeal by releasing and relaxing the rigour of the order of eviction relying on Ram Murti 's case, we unhesitatingly then would take the step to have the matter remitted back at an appro priate stage where the successor landlords could convenient ly have the other grounds of eviction adjudicated upon and overrule the objection that the landlord could have filed an appeal before the Rent Appellate Tribunal and the High Court seeking eviction of the tenant on grounds other than the ground on which the eviction was ordered.
This course, however, appears to us to be not only unfair and unreasona ble in the facts and circumstances of this case but time consuming and inequitous as well to the successor landlords who, as said before, are two ladies brought in the fray by operation of law.
Now since almost eighteen years have passed by, we feel there should be an end to the dispute and this course is in the interest of all concerned as well as the State.
Instead of putting the parties to a fresh bout of litigation we would in these circumstances prefer and opt to let remain the order of eviction sustained however on slen der ground, and consequently order dismissal of this appeal but without any order as to costs.
Still we do not wish to dislocate the appellant abruptly, concerned as we are for him also, and for that purpose grant him sufficient time ending on March 31, 1991 for vacating the premises subject to his giving an undertaking before this Court for vacation on or before the said date but on payment of rent to the landlords as has fallen due for the period uptill and by March 31, 1990 and future monthly rent by the tenth of each calendar month.
Let the undertaking be filed by March 10, 1990 in the Registry in the usual manner.
P.S.S. Appeal dismissed.
| The appellants were convicted by the Additional Sessions Judge on three counts and sentenced to various terms of imprisonment and a fine of Rs.200 under Sections 148, 323/149 and 302/149 I.P.C.
The appellants preferred an appeal against the order of conviction and sentence.
Dis missing the appeal, the High Court, clarified that their convictions were on six counts and altered the fine awarded under Section 302/149 I.P.C. from Rs.200 to Rs.5,000 in respect of each appellant per count, i.e. Rs.30,000 per appellant.
Hence the appellants preferred appeal, by special leave, in this Court, limited to the question of enhancement of fine only.
Allowing the appeal, and setting aside the order of High Court enhancing the fine, this Court, HELD: It is clear from a conjoint reading of Sections 377, 386, 397 and 401 of Code of Criminal Procedure, 1973, that if the State Government is aggrieved about the inade quacy of the sentence, it can prefer an appeal under Section 377(1) of the Code.
The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code, since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it.
But before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and given an opportunity of being heard on the question of sentence either in person or through his advo cate.
The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the Trial Court.
[515A D] 513 In the present case, the appeal was filed under Section 374(2) of the Code by the convicts against the order passed by the Additional Sessions Judge.
No appeal was filed by the State under Section 377(1) of the Code against the sentence awarded by the trial court for the offence under Section 302/149, I.P.C. on the ground of its inadequacy.
Nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 of the Code.
If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and hearing the convicts on the question of inadequacy of sentence.
Without following such procedure it was not open to the High Court in the appeal filed by the convicts to enhance the sentence by enhancing the fine.
The High Court clearly acted without jurisdiction.
[515D F]
|
minal Appeal No. 462 of 1985.
From the Judgment and Order dated 21.12.84 of the Patna High Court in Crl.
A. No. 146 of 1978 (R).
R.C. Kohli Advocate for the Appellant.
Pramod Swarup Advocate for the Respondent.
The Judgment of the Court was delivered by N.P. SINGH, J.
This appeal is on behalf of the sole appellant who has been convicted under section 304 Part 1 of the Indian Penal Code (hereinafter referred to as "the Penal Code") and has been sentenced to undergo rigorous imprisonment for two years by the High Court.
The appellant along with Sitaram Mandal and Tribhanga Mandal 140 were charged for offence under section 307 read with section 34 for attempting to commit the murder of Gopal Chandra Ravidas, They had also been charged under section 379 of the Penal Code for committing the theft of the paddy crops from plot No. 2760 of village Amjhore, P.S. Baliapur, District Dhanbad.
According to the prosecution case, on 26.10.75 at about 12.00 noon the informant Bishnu Ravidas (PW 9) and his brother Gopal Chandra Ravidas having learnt that the accused persons were harvesting their paddy from the plot aforesaid went there.
When they protested as to why their crops were being harvested, accused Sitaram Mandal caught hold of the hands of Gopal Chandra Ravidas and Harendra Nath Mandal, the appellant, assaulted Gopal Chandra Ravidas on his head with the back portion of a Tangi.
At that very time, accused Tribhanga Mandal assaulted informant with a lathi on his right hand.
On a consideration of the evidence on record, the learned Sessions Judge convicted appellant Harendra Nath Mandal and Sitaram Mandal for offence under section 307 read with section 34 of the Penal Code and sentenced the appellant, Harendra Nath Mandal to undergo rigorous imprisonment for seven years and accused Sitaram Mandal to undergo rigorous imprisonment for five years.
Accused Tribhanga Mandal was convicted under section 323 and sentenced to undergo rigorous imprisonment for six months.
All of them were also convicted under section 379 of the Penal Code and sentenced to one year rigorous imprisonment each.
The sentences were directed to run concurrently.
During the pendency of the appeal before the High Court, Sitaram Mandal died and his appeal abated.
The learned Judge, however, set aside the conviction and sentence under section 307 read with section 34 passed against the appellant Harendra Nath Mandal but convicted him under section 304 Part 1 of the Penal Code and sentenced him to two years ' rigorous imprisonment.
The conviction and sentence under section 379 were also set aside.
The conviction and sentence under section 323 of the Penal Code against Tribhanga Mandal were also set aside and he was acquitted of the charges levelled against him.
It was rightly urged on behalf of the appellant that when Gopal Chandra Ravidas to whom this appellant is alleged to have given a blow by the back portion of a Tangi, has survived 141 the injury aforesaid, there was no question of covicting the appellant under section 304 Part 1 of the Penal Code.
Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder.
In view of section 299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder.
It is well known that if a death is caused and the case is covered by any one of the five exceptions of section 300 then such culpable homicide shall not amount to murder.
Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent.
To put it otherwise if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300 but is covered by any of the five exceptions it will be punishable under the first part of section 304.
If, however, the act comes under clause 4 of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part.
The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge.
But before an accused is held guilty and punished under first part or second part of section 304, a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300, which include death caused while deprived of power of self control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation.
So far the present case is concerned, when death itself had not been caused, there was no occasion for convicting the appellant under section 304 of the Penal Code.
Now the next question is as to whether the appellant should be convicted for causing injury on the head of aforesaid Gopal Chandra 142 Ravidas with the back portion of a Tangi.
It was pointed out that the appellant has sustained injuries during the same occurrence including one at the scalp.
The aforesaid injuries on the person of the appellant were examined by the Civil Assistant Surgeon, Sadar Hospital, Dhanbad, who has been examined as a witness at the trial.
The appellant in his examination under section 313 of the Code of Criminal Procedure stated that he had sustained injuries aforesaid while warding off the Bhala blow aimed at his chest by the aforesaid Gopal Chandra Ravidas.
The other accused Sitaram Mandal who died during the pendency of the appeal had also been examined by the jail Doctor in the Dhanbad jail and said Doctor was examined as a witness at the trial, who proved the injuries on the person of accused Sitaram Mandal.
The learned Judge himself on consideration of the materials on recored has come to the following conclusion : "From the aforesaid discussion of the evidence, in the facts and circumstances of the case, it appears that since long before the occurrence both the parties were claiming title and possession over the disputed land and the occurrence took place regarding the harvesting of the paddy crop.
In the same occurrence the informant (PW 9) and his brother Gopal Ravidas sustained injuries and the first and second appellants were also injured.
According to the appellants Gopal Ravidas aimed a 'Bhala ' blow on the chest of the first appellant but he warded it off and sustained injuries at his hand.
The first and the second appellants were also assaulted by lathis.
The injuries were examined and proved by the doctor (DW 8).
Likewise, the injuries of the second appellant were examined by the jaid doctor, (DW 7), who proved the injury report.
May be, that their injuries were not severe but it was a matter of luck that the first appellant could avoid and ward off the 'Bhala ' blow aimed at his chest.
The manner of occurrence as alleged by the appellants in which they sustained injuries has been suppressed and the true version of the occurrence has not been given by the prosecution.
In the circumstances, the right of private defence of person and property cannot be completely ruled out.
" 143 Once the finding aforesaid was recorded that the prosecution has not disclosed the true version of the occurrence and the right of private defence of person and property was available to the appellant then the appellant was entitled to be acquitted.
Accordingly, the appeal is allowed.
The conviction and sentence passed against the appellant are set aside.
N.P.V. Appeal allowed.
| The prosecution alleged that when PW 9 and his brother, having learnt that the appellant and two other persons were harvesting paddy from their plot, went there and protested as to why their crops were being harvested, one person caught hold of the hands of PW 9 's brother, and the appellant, assaulted him on his head with the back portion of a Tangi, and at that very time, another person assaulted PW 9, the informant, with a lathi on his right hand.
The three persons were charged with attempt to commit murder of PW 9 's brother, and also theft of the paddy crops from the plot of PW 9 and his brother.
On consideration of the evidence on record, the Sessions Judge convicted the appellant and another accused for offence under section 307 read with section 34 of the Penal Code.
They were sentenced to undergo seven years ' and five years ' rigorous imprisonment respectively.
The third accused was convicted under section 323 and sentenced to undergo rigorous imprisonment for six months.
All of them were also convicted under section 379 of the Penal Code and sentenced to one year 's rigorous imprisonment each.
138 During the pendency of the appeal before the High Court, preferred by the three accused, one of them died and his appeal abated.
The High Court set aside the conviction and sentence under section 323 of the Penal Code against the other accused and he was acquitted of the charges levelled against him.
The High Court also set aside the conviction and sentence under section 307 read with section 34 passed against the appellant, but convicted him under section 304 Part 1 of the Penal Code and sentenced him to two years ' rigorous imprisonment.
In the appeal before this Court on behalf of the appellant, it was urged that when PW 9 to whom the appellant was alleged to have given a blow by the back portion of a Tangi, survived the injury, there was no question of convicting the appellant under section 304 Part 1 of the Penal Code.
It was also contended that the appellant had sustained injuries during the same occurrence including one at the scalp.
Allowing the appeal, this Court, HELD : 1.1.
Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder.
In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder.
If a death is caused and the case is covered by any one of the five exceptions of section 300, then such culpable homicide shall not amount to murder.
Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent.
The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge.
But before an accused is held guilty and punished under first part or second part of section 304, a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300, which include death caused while deprived of power of self control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without permeditation.
[141B D,F] 1.2.
In the instant case, when death itself had not been caused, there 139 was no occasion for convicting the appellant under section 304 of the Penal Code.
[141G] 1.3.
The appellant, in his examination under section 313 of the Code of Criminal Procedure, stated that he had sustained injuries during the same occurrence while warding off the Bhala blow aimed at his chest by PW 9.
The aforesaid injuries on the person of the appellant were examined by the Civil Assistant Surgeon, who had been examined as a witness at the trial.
The other accused, who died during the pendency of the appeal had also been examined by the Jail Doctor and the Doctor was examined as a witness at the trial, who proved the injuries on the person of accused.
The Judge himself on consideration of the materials on record has come to the conclusion that the manner of occurrence, as alleged by the appellants in which they sustained injuries, has been suppressed and the true version of the occurrence has not been given by the prosecution and in the circumstances, the right of private defence of person and property cannot be completely ruled out.
[142B CG H] 1.4.
In view of the finding of the High Court that the prosecution had not disclosed the true version of the occurrence, and the right of private defence of person and property was available to the appellant, the appellant was entitled to be acquitted.
[143A]
|
Civil Appeal Nos.
1568 76, 1609 12, 1656, 1672, 1675 80, 1707, 1616, 1644, 1645, 1646, 1671, 1673, 1708 of 1974.
From the Judgment and order dated 14th August & 12th September, 1974 of the Allahabad High Court in Civil Writ Petition Nos. 3422, 3498, 3430, 3462, 3491, 3429, 3427, 3423, 3472, 3443, 3473, 3474, 3494, 3439, 788, 774, 786,787, 791, 793, 869, 3428, 3502, 3420, 3421, 3528, 3478, 3477, & 3478 of 1974.
Yogeshwar Prashad, section C. Manchanda, section K. Bagga, 353 Pramod Swarup, O.P Agarwal, Ms, Baby Krishnan G.S. Chaterjee.
Mrs. S.Dikshit, R.N. Trivedi Miss R. Govind for the Appellants.
The following Judgments were delivered THAKKAR, J. The Constitution which promises a socialistic pattern of Society in the preamble and traces the contours of the socialistic philosophy which permeates the spirit of the Constitutional can neither command nor commend the exercise of the Constitutional Jurisdiction to issue HIGH PREROGATVE WRITS under article 32 226 or 227 in order not to remove injustice but to do injustice in order not to prevent exploitation of the poor by the rich, but to permit such exploitation.
And yet the CONSTITUTIONAL JURISDICTION of the Court (as polarzed from its 'ERROR JURISDICTION ' has been invoked in order to use the hand of the Court for transferring money from the pockets of poor cultivators (who feed the Nation) to the pockets of the dealers in fertilizers (who feed themselves) by Challenging a notification on technical grounds.
Such jurisdiction is invoked to enable the dealers to reap a 'rich ' harvest of 'unjust enrichment ' through the instrumentality of the Court at the cost and expenses of the cultivators.
We firmly believe that the Court exercising CONSTITUTIONAL JURISDICTION is not obliged to grant a writ in such circumstances.
But we need not elaborate on the theme furthermore as the High Court has rejected the petition on merits and as we are of the same opinion.
Events leading to the institution of the Writ Petitions under Article 226 of the Constitution of India giving rise to this group of appeals (by certificate of fitness granted by the Allahabad High Court) have taken the following course: (i) On October 11,1973 the Central Government issued a notification fixing the maximum retail selling price of certain varieties of fertilizers to the consumers.
It was issued in exercise of powers under clause (3) of the Fertilizer (Control) order of 1957 promulgated under Section 3 of the of 1955.
(referred to as 'Act ' hereinafter).
(ii) Some time later, on June 1,1974 the Central Government issued a Notification whereby the maximum retail selling price of different varieties of fertilizers was steeply revised upwards in order to compensate the 'manufac 354 turers ' in the context of the spurt in the prices of various inputs.
The extent of the rise may be illustrated by taking the instance of 'Urea 46% Nitrogen.
Its price was revised upwards from Rs. 1090 per ton to Rs 2000 per fon.
(iii) On June 14 1974 the State of ' Uttar Pradesh issued the Uttar Pradesh Fertilizer Prices (Supplementary) Order 1974 in exercise of the powers conferred by Rule 114 of the Defence of India Rules, 1971 adverted to as 'D.I.R. hereinafter.
Under this notification the registered 'dealers ' were prohibited from charging to the cultivators price in excess of the maximum price prevailing immediately prior to the upward revision authorised by the Central Government on June 1, 1974 in respect of stocks acquired at pre revision rates held by the dealers on the eve of the upward revision of prices.
(iv) The net result of the two last mentioned notifications was as follows: The dealers could sell to the cultivators fertilizers at the higher rates authorised by the notification dated June 1 1974 from out of the stocks acquired thereafter under both the notifications.
As regards the stocks acquired after June 1 1974 the registered dealers were not affected by the notification issued by the State Government under the DIR in as much as the notification issued by the Central Government authorising the upward revision remained unaffected by the notification issued by the State.
The dealers however could not sell the fertilizers at the higher rates from out of the existing stock acquired by them at the lower rates immediately prior to the upward revision effected on June 1 1974 in view of the aforesaid notification issued by the State Government on June 14 1974.
Taking the instance of 'Urea 46% Nitrogen ' the net impact of the impugned State notification was that the 'dealers ' were not permitted to charge to the cultivators Rs. 2000 per ton instead of Rs. 1090 per ton in respect of stocks acquired at the lower rates.
(v) It was in this background that the dealers instituted the petitions giving rise to the present appeals by certificate, challenging the legality and validity of the 355 impugned notification issued by the State Government on June 14 1974.
Now, the following facts are not in dispute: (i) The registered 'dealers ' were entitled to a fixed profit margin of Rs. 45 per ton (and no more) under the terms and conditions of the licence held by them.
(ii) The stocks acquired prior to June 1 1974 were meant for sale to the cultivators at the pre upward revision rates at which rates the dealers had acquired the stocks.
This stock had remained unsold with the dealers till than because the cultivators had not been able to effect their purchases till that date.
(iii) The price rise was authorised to compensate the 'manufacturers ' in the context of the spurt in the price of various 'inputs ' and had no bearing on the selling price for the 'dealers ' who were not concerned with the cost of production.
(iv) In case the State Government had not issued the impugned notification dated June 14 1974 the dealers would have been enabled to charge about twice the prices at which the stocks were made available to them for sale prior to the notification.
For instance 'Urea 46%.
Nitrogen ' made available to the dealers for effecting sales to the cultivators at Rs. 1090 per ton could have been sold to the cultivators at Rs. 2000 per ton.
Thus they would have been enabled to make a wind fall bumper profit of Rs. 910 per ton (in respect of 'Urea 46% Nitrogen ') as against permitted profit margin of Rs. 45 per ton (i.e. about 1000% in place of about 5%) and to secure unjust enrichment ' for themselves to such an unconscionable extent at the cost of the cultivators.
It is in the backdrop of these undisputed facts that the question regarding the validity of the impugned notification dated June 14 1974 issued by the State of Uttar Pradesh came to be challenged before the High Court of Allahabad.
The impugned notification was issued in order to meet a problem 356 which arose in the peculiar facts and circumstances of the situation.
The problem arose apparently because the competent authority exercising the powers of the Central Government under the overlooked that the dealers who were concerned with the distribution of the fertilizers to the cultivators on a fixed and assured profit margin of Rs 45 per ton would be having with them stock in trade obtained at the pre enhancement prices.
And that they might take under advantage of the situation by charging a higher rate to the consumers even in respect of the stocks acquired at the lower rates The dealers could and should have sold the stock in trade acquired at the pre enhancement price at the hiterto prevailing rates till the old stocks were exhausted.
That is what would have been expected of them having regard to the fact that they were getting a fixed and assured margin of profit of Rs. 45/ per ton and that the enhancement of the price was necessitated and made solely to neutralize the rise in the cost of the inputs which phenomenon affected only the 'manufacturers ' and not the 'dealers '.
There was therefore no occasion or justification on their part for charging a higher price to the consumers in regard to the sales effected from the existing stocks acquired at the lower rates.
The notification issued by the Central Government on June 1 1974 was silent on the question of selling prices in respect of sales from out of stocks acquired earlier at the lower rate.
Since the said notification issued by the Central Government was silent the State Government which appears to have been more vigilant stepped in and exercised powers which were conferred on it by the DIR.
The challenge before the High Court was made on three main grounds, viz: (A) The Central Government having issued a notification in exercise of powers under the the State Government could not have issued the impugned notification under the Uttar Pradesh Fertilizer Prices (Supplementary) order 1974 issued in exercise of the powers conferred under Rule 114 of the 'DIR.
The power to fix the maximum price in respect of fertilizers could be exercised only under the Essential.
Commodities Act it being a special Act and could not have been exercised by the State Government by issuing an order under the 'D.I.R. ' (B) Even if the State Government had the power to issue 357 the notification under the D.I.R. the notification was invalid by reason of its inconsistency with the notification issued by the Central Government on June 1 1974 under the .
(C) The impugned notification was violative of Article 14 of the Constitution of India.
The High Court of Allahabad negatived all the three contentions by an extremely well considered and well reasoned judgment.
In the present group of appeals by certificate the original petitioners have reiterated the same contentions before this Court.
Re: Ground A: The argument in substance is that is a special Act under which the price relating to a commodity declared to be an essential commodity can be regulated.
The power to regulate the price in respect of such an essential commodity cannot therefore be exercised under Defence of India Rules 1971 or under any other provision of law.
Now, both the as also the Defence of India Rules of 1971 are Central legislations enacted by the Parliament.
The 'D.I.R. ' were brought into force by the Parliament in 1971 in order to meet an emergency situation.
The legislative competence of the Parliament to enact the legislation.
On the subject in question namely fixation of prices of all articles is not questioned.
The Parliament having competence to legislate in regard to the subject has enacted both the legislations one in 1955 another in 1971.
The impugned notification has been issued under the latter statute.
The 'D.I.R. ' having been enacted later it cannot and it has not been contended that the doctrine of repeal is attracted.
Since there is legislative competence since the statute is not eclipsed by the doctrine of express or implied repeal how can the power exercised under the valid statute be assailed ? The only argument advanced a misconceived one in our opinion.
is that since the 'Act ' deals with essential commodities and fertilizer has been declared under the Act as an essential commodity the power conferred by the 'D.I.R. ' cannot be exercised in respect of regulation of the price of such a commodity or article.
It is not disputed that under the DIR power has been conferred inter alia to regulate the price of 'any ' article.
The expression 'any article ' is wide enough in its amplitude 358 to envelope 'fertilizers '.
The fact that 'fertilizers ' have been declared as an essential commodity and its price can be regulated under the powers conferred by the Act is altogether immaterial.
There is no constitutional or jurisprudential limitation on the competence of the Parliament to create two avenues or sources of power for the regulation of prices of articles.
There is nothing in principle or precedent to support the proposition that two avenues or sources of power cannot be validly created.
What then is the fabric of the challenge ? The only answer offered by the counsel is that the Act is a statute specially enacted inter alia for regulation of the prices of commodities declared to be essential and therefore in respect of such commodities the power can be exercised only under the Act.
We are unable to accede to this argument Since as discussed earlier Parliament can constitutionally and validity enact two statutes creating two sources of power and since under both the statutes prices of fertilizers can be regulated; there is no illegality in acting under 'either ' or 'both '.
Counsel however seeks support from the following passage from Craies on Statute Law(1) "Acts of Parliament some times contain general enactments relating to the whole subject matter of the statute and also specific and particular enactments relating to certain special matters; and if the general and specific enactments prove to be in any way repugnant to one another the question will arise which is to control the other ? In Pretty vs Solly. ; 610.
Romilly M.R. stated as follows what he considered to be the rule of construction under such circumstances.
"The general rules" said he "which are applicable to particular and general enactments in statutes are very clear; the only difficulty is in their application.
The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter taken in its most comprehensive sense would over rule the former the particular enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." (Emphasis added) It is overlooked that the said passage deals with different pro 359 visions in the "same" statute.
That when there is a special provision in the very same statute in regard to a subject matter the special provision of the statute will ordinarily prevail in rivalry or competition with the general provision is a proposition with which there is no quarrel.
But then we are not at all concerned with any rivalry between two provisions of the 'same ' statute.
We are faced with two enactments by the same legislature which create two sources of power to achieve the same purpose.
To repeat what has been observed earlier there is no legal bar to creating two sources of power.
And there is no authority in principle or precedent for contending that one source of power is more valid than the other.
Or that the power validly conferred by the same legislature can be exercised only under one and not the other of the two statutes leaving aside the question of irreconcilable or intolerable inconsistency.
We therefore confirm the view of the High Court and repel the challenge.
Re: Ground B: The validity of the impugned notification issued by the State under the 'DIR ' is assailed on the ground that it is inconsistent with the earlier notification issued by the Centre.
As discussed earlier the Central notification does not 'specifically ' deal with the question as regards selling price in respect of sales from the existing stocks acquired by the dealers at the pre enhancement prices which remained unsold with them as the cultivators could not effect purchases till then.
In other words the Central notification does not deal with this ramification at all.
It does not show awareness of this dimension and is altogether silent on the subject.
The impugned State notification issued later on the other hand deals specifically pointedly and solely with this dimension.
It is in this perspective that the issue has to be judged bearing in mind the undisputed position that there is no Centre State conflict involved in the sense that (1) the Centre which is not even impleaded as a party does not question the power of the State or the validity of the notification as impinging on its (Centre 's) jurisdiction or authority; (2) Centre has not asserted its superior authority from the standpoint of Centre State power equation in order to supersede the State notification.
The question clamoring for solution in this scenerio has two facets viz: (1) Whether there is any inconsistency between the Central notification on the one hand and the State notification on the other and; 360 (2) whether the inconsistency is an irreconcilable or intolerable one: Is there inconsistency? The Central notification as discussed earlier is altogether silent on the ramification regarding sales from out of existing stocks acquired by the dealers at lower rates.
The impugned State notification on the other hand deals exclusively with this aspect.
The State notification on speaks on a refinement of the subject about which the Central notification is blissfully unaware and on which it is altogether silent.
The two do not overlap.
There is therefore no real inconsistency.
The principle may be stated thus.
The Centre and the State both cannot speak on the same channel and create disharmony.
If both speak, the voice of the Centre will drown the voice of the State.
The State has to remain 'silent ' or it will be 'silenced '.
But the State has the right to 'speak ' and can 'speak ' (with unquestionable authority) where the Centre is 'silent ' without introducing disharmony.
If the Centre sits only on a portion ' of the Chair the State can sit on the rest of the portion with arms thrown on the shoulders of each other, in a friendly manner towards the same destination.
If the Centre has built a wall and has left a gap from which intruders can infiltrate the State can fill the gap in the wall and thus make its own contribution to the Common Cause.
What is more each in theory and principle must be presumed to be conscious of the need for accord and need for accommodating each other in the interest of 'NATIONAL HARMONY '.
The Centre can object to the State speaking on the same channel or sitting on its shoulders and perhaps even override the State.
But the Centre and the State can certainly accommodate each other in a friendly spirit in the overall NATIONAL INTEREST when both of them are trying to supplement each other.
In the present case both notifications can safely be construed as supplementary and friendly rather than inconsistent or hostile.
The Centre does not question to the State speaking on the nuance on which the Centre has maintained silence.
There is therefore no real element of inconsistency in the two notifications.
The following passage extracted from Statutory 361 Construction by Sutherland (para 2022(1),) shows that the aspect relating to 'refinement ' is a well recognized factor and that the state law can be treated as an exception when the inconsistency is not irreconcilable : "A general statute applies to all persons and localities within its jurisdictional scope, prescribing the governing law upon the subject it encompasses, unless a special statute exists to treat a refinement of the subject with particularity or to prescribe a different law for a particular locality.
Likewise where a later statute adapted for a particular locality conflicts with a general law of state wide application, the special or local law will supersede the general enactment.
Where, however, the later special or local statute is not irreconcilable with the general statute to the degree that both statutes cannot have a coterminous operation, the general statute will not be repealed, but the special or local statute will exist as an exception to its terms." (Emphasis added) Assuming for the sake of argument that it is considered to be an inconsistency, it does not appear to be an irreconcilable or intolerable one so as to invalidate it, as will be presently shown.
Is the alleged inconsistency irreconcilable or intolerable one ? There are degrees of inconsistency in the context of conflict of laws.
There can be apparent or surface inconsistency which may be considered as a non hostile, tolerable, benign, one, subject to the unquestioned power of the Centre to override the State if so minded.
On principle, every apparent inconsistency cannot be presumed to be hostile or intolerable.
More so when the Centre does not even raise a whisper of discord.
One of the tests for ascertaining whether the inconsistency is an irreconcilable or intolerable one, is to pose this question: Can the State law be obeyed or respected without flouting or violating the Central law in letter and spirit ? If the answer is in the affirmative, the State law cannot be invalidated.
Not at any rate when the State law merely 'promootes ' the real object of both the 362 laws, and is in the real sense 'supplementary ' or 'complementary ' to the Central law.
In the present case the test answers in favour of the validity of the impugned State notification.
The Central notification is not violated if the dealers sell the fertilizers from out of the existing stocks acquired at the lower rates, for both the notifications fix the maximum selling price and the maximum selling price fixed under the State notification is not higher than that fixed under the Central notification.
What is more, the State notification 'promotes and serves ' the object and purpose of both the Centre and the State.
'Promotes and serves ', in the sense, that the manifest object of fixing maximum ceiling price is to make available to the cultivators who grow the food for the NATION to obtain the inputs at reasonable prices and to protect them from exploitation so that the food production is not retarded.
It is not contended even by the petitioners, for the very good reason that it is incapable of being so contended, that the object of the price regulation is to enable the dealers to make unconscionable profit.
Thus the impugned State notification promotes rather than 'defeats ', the 'life aim ' of Central as also the State notifications.
It 'helps ' rather than 'hurts ' the objectives and goals of the Centre, and there is no conflict whatsoever of 'interest ', 'purpose ', or 'perspective '.
The State has done only that which the Centre presumably would have readily done if it was fully aware of the situation from all angles of vision.
For, the only impact of the impugned notification is that the 'cultivator ' for whose protection the price regulation is essentially made, is saved from exploitation without hurting the legitimate claim of the dealer, who, in any case, gets his fixed profit margin of Rs. 45/ per ton.
In Australian Boot Trade Employee 's Federation vs Whybrow Co.,(1) the High Court of Australia in a somewhat similar situation held that there was no inconsistency between a State law fixing a minimum wage for workers in the boot trade of 1$ per hour and a federal law fixing a minimum wage for the same workers of 1 1/2 $ per hour.
Speaking through Barton, J. the court observed : "The determinations of the wages boards (in effect the State law) and the proposed award (in effect, the Commonwealth law) are courched in the affirmative in respect of the material part of each, the provision as to the minimum wage.
None of them prescribed an inflexible rate.
The (State) determinations prescribe a minimum and it is in each case 363 lower than the minimum named by the proposed (Commonwealth) award.
By paying the latter minimum an employer will be obeying both laws.
The affirmative words of the (Commonwealth) award, therefore, do not "impart a contradiction" between it and the (State) determinations.
It is impossible to say that the employer cannot obey the one without disobeying the other.
Therefore, the former and the latter may stand together.
Therefore, according to the proper test, they are not inconsistent." (Emphasis added) It would thus appear that in a somewhat parallel situation the Australian High Court had taken the view that since both laws can be obeyed without disobeying any, there is no conflict.
In the present case also an endeavor must be made to place a harmonious interpretation which would avoid a collision between the two.
Another way of looking at the problem is this: The impugned notification, though issued by the State, has its source of power in the 'DIR ' which is a Central Statute enacted by the Parliament.
The State is merely an instrumentality for executing the purpose of the Central Act.
The impugned notification which is 'later ' in point of time must, therefore, prevail to the extent it 'speaks ' on the refinement or nuance of the matter on which nuance the earlier notification is 'silent '.
In any view of the matter, therefore, the challenge from this platform cannot succeed.
It may be mentioned that a half hearted argument was advanced that article 254(2) would be attracted and Presidential assent would become necessary in order to give effect to the impugned notification.
There is no merit in it in as much as article 254(2) does not envision Presidential assent to 'notifications ' issued under an Act (as distinguished from 'laws made by legislature ') as has been observed by a Constitution Bench of this Court in Kerala State Electricity Board vs Indian Aluminium Co.,(1) wherein Alagiriswami, J. speaking for himself and for Bhagwati, Goswami and Sarkaria JJ.
says: "Was it necessary to get the President 's assent for this notification as contended by some of the respondents ? Quite clearly no Presidential assent was possible to the notification.
Article 254(2) does not contemplate Presidential 364 assent to notifications issued under the Act.
The article contemplates Presidential assent only to laws made by the legislature of a State.
" This ground of attach also accordingly fails.
Regarding ground (C): The appellants contended that the impugned notification was violative of article 14 of the Constitution of India and was therefore invalid.
The argument was advanced on the assumption that the State Government had permitted governmental agencies falling within the definition of 'dealer ' in the Fertilizer Control Order, 1957 to sell the stocks held by the said agencies immediately preceding the issuance of the impugned notification dated June 1, 1974 at the higher rates.
This allegation has been controverted by the State of Uttar Pradesh.
A reference to the counter affidavit sworn by the Accounts Officer, Fertilizers and Manuals Directorate of Agriculture, field in C.M.P. No. 6773 of 1974 clearly shows that the State Government had not granted any such permission.
Thus, the very basis of the challenge on the score of hostile discrimination is found to be non existent.
The High Court was perfectly justified in rejecting this contention.
We, therefore, confirm the view taken by the High Court.
Thus all the grounds called into aid by the appellant for challenging the impugned notification are found to be devoid of substance.
Under the circumstances the appeals fail and are dismissed.
Having regard to the facts and circumstances of the case there will be no order regarding costs.
The interim orders passed by this Court are hereby vacated.
In the result, the concerned District Magistrate will now have to take appropriate steps to pass on and pay to the cultivators the differential amount deposited by the dealers pursuant to this Court 's orders dated September 2, 1974, and, October, 10, 1974, as early as possible.
And, in any event, within six months of this order, after proper verification.
We order accordingly.
Appeals dismissed.
Interim orders vacated.
365 VARADARAJAN, J. Civil Appeal 1656 of 1974 is by special leave.
The other appeals are by certificate granted by the Allahabad High Court.
All the appeals arise out of the judgment of a Division Bench of that High Court in a batch of writ Petitions out of which W.P. No. 3421 of 1974 was treated as the leading case.
Civil Appeals 1568 1576 of 1974 and batch have arisen out of that batch of Writ Petitions.
In the other set of Civil Appeals another Writ Petition of 1974 is said to have been treated as the leading case by the High Court.
The decisions were rendered in Writ Petition No. 3421 of 1974 for one batch and in another Writ Petition of 1974 for the other batch.
But in all the appeals before us, the judgment in W.P. No. 3421 of 1974 alone was referred to.
The Writ Petitions filed under Article 226 of the Constitution challenged the validity of a notification dated 14 6 1974 issued by the Government of Uttar Pradesh in exercise of the power conferred by Rule 114 of the Defence of India Rules, 1971, directing that no registered dealer of fertilizer shall charge or retain, enter into or enforce any contract for charging, in respect of any fertilizer sold to any person on or after 1.6.1974, from any stock held on 31.5.1974, a price exceeding the maximum price fixed by the Central Government for the sale of fertilizer under an earlier notification dated 11.10.1973 issued under Clause 3 of the Fertilizer (Control) Order, 1957 made in exercise of the power conferred by section 3 of the , as it prevailed on 31 5 1974.
The Writ Petitions challenged also an order dated 18.6.1974 passed by the District Agricultural Officers directing registered dealers of fertilizers to refund the excess price charged on the sale of fertilizer effected on or after 1.6.1974 from out of the stock which was in existence on 31.5.1974.
The Writ Petitions sought the quashing of the said notification dated 14.6.1974 and also a direction to the District Agricultural Officers and other District Authorities not to ask the dealers to refund the excess in respect of sales completed prior to the date of that notification.
The High Court has, while upholding the validity of the notification dated 14.6.1974 and dismissing the prayer for quashing the same, directed the District Agricultural Officers and other District Authorities not to enforce the order for refund of the excess price realized on the sale of fertilizer up to 14.6.1974 from the stocks which were in existence on 31.5.1974.
This part of the High Court 's order has become final and has not been challenged by the State Government.
This Court has directed by orders dated 2.9.1974 and 30.10.1974 that the excess price charged on the sale of fertilizer which was in the possession of the appellants before 1.6.1974 should be deposited 366 with the District Magistrate concerned within a fortnight of the sales to remain in a separate account.
The fertilizer in question is admittedly a commodity controlled under the Fertilizer (Control) Order, 1957 issued by the Central Government in exercise of the power conferred by s.3 of the , 19555.
The maximum price for sale of fertilizers by registered dealers to consumers is fixed under Clause 3 of the Fertilizer (Control) Order, 1957 by notifications issued from time to time.
The sale price of one of the varieties of fertilizers with which we are concerned in these appeals has been fixed at Rs. 1050 per ton by a notification dated 11.10.1973 which was in force on 31.5.1974.
The price fixed in that notification for the sale of that variety of fertilizer to registered dealers was Rs. 1005 per ton leaving a margin of Rs. 45 per ton on sale to consumers at Rs. 1050 per ton.
The Central Governments in supersession of the notification dated 11.10.1973 fixed the maximum sale price of that variety of fertilizer at Rs. 2000 per ton by a notification dated 1.6.1974, thus giving an increases of Rs. 950 per ton for that variety to the dealers.
The dealers started selling at the new rates fixed in that notification for the several varieties of fertilizers.
The Government of Uttar Pradesh being of the view that the Central Government 's notification dated 1.6.1974 was not intended to apply to old stock procured by dealers at considerably lower prices from producers which was in existence on 31.5.1974 issued the impugned notification dated 14.6.1974 directing that the old stock should be sold at the old rate of Rs. 1050 per ton with effect from 1.6.1974.
The Writ Petitions were filed by the dealers, some of them for quashing the State Government 's notification dated 14.6.1974, some for quashing that notification as also for directing the District Agricultural Officers and other District Authorities not to enforce the order mentioned above and some for the latter direction alone.
The question for consideration by the High Court was the validity of the State Government 's notification dated 14.6.1974 as regards the stock of fertilizer available with the dealers at the end of 31.5.1974, i.e., whether that notification will prevail over the Central Government 's notification dated 1.6.1974.
The first contention urged for the dealers before the High Court was that fertilizer was not a commodity essential to the community within the meaning of s.3 of the Defence of India Act, 1971 and, therefore, the State Government had no power to fix its price or give 367 any other direction in regard thereto.
The learned Judges of the High Court held that chemical fertilizers being necessary for increased production of food crops and oil seeds crops under modern scientific methods of agriculture would be commodities essential for the life of the community and that the argument that trade in chemical fertilizers cannot be regulated under s.3 of the Defence of India Act, 1971 is untenable.
Before us no argument was advanced by the learned counsel for the appellants that chemical fertilizers are not essential commodities.
On the other hand, it was repeatedly contended that it is an essential commodity within the meaning of s.2(1)(a) of the and is specifically mentioned as such in s.2(1)(a) (xi) of that Act.
There is no dispute before us about this matter though there is dispute whether fertilizer can be brought within the words "any article" mentioned in Rule 114(2) of the Defence of India Rules, 1971.
Therefore, that question does not arise for detailed consideration by us.
The second ground of attack before the High Court was that the State Government lacked the power to control the price of chemical fertilizer on the ground that no such power is conferred on it by the Defence of India Act, 1971 and the rules framed thereunder in respect of chemical fertilizer as being needed for the preparation of the defence or connected with the prosecution of war.
This contention was rejected by the learned Judges of the High Court.
It is not necessary for us to consider this aspect of the matter as no such argument was advanced before us by the learned counsel for the appellants.
The dispute before us is as to whether chemical fertilizer would fall within the words "any article" found in Rule 114(2) of the Defence of India Rules framed in exercise of the power conferred by s.3 of the Defence of India Act, 1971 though it is not disputed that the impugned State Government notification dated 14.6.1974 was issued when the emergency which was lifted on 22.3.1977 was in force.
The next contention urged before the High Court was that as the Central Government had already fixed the price of chemical fertilizer by the notification dated 1.6.1974 issued under the Fertilizer (Control) Order, 1957 made in exercise of the power conferred by s.3(2) (c) of the , the State Government had no power to fix its price under Rule 114(2) of the Defence of India Rules, 1971 by the later notification dated 14.6.1974 in exercise of its delegated power.
This contention was rejected by the learned Judges of the High Court as being unacceptable.
The argument of the learned Advocate General appearing for the State of Uttar Pradesh 368 before the High Court was that by the impugned notification dated 14.6.1974 the State Government had not fixed any price, but had only directed that certain stocks of fertilizers which were in the possession of dealers on 31.5.1974 shall be sold at the rates fixed by the Central Government in the earlier Notification dated 11.10.1973 which had been superseded by its own notification dated 11.6.1974, has not been accepted by the learned Judges of the High Court as the basis of their decision.
On the other hand, they have proceeded on the basis that the State Government has fixed the dealers ' sale price of the fertilizer by the impugned notification in exercise of the power conferred by Rule 114 of the Defence of India Rules, 1971.
The undisputed fact is that the price fixed for the sale of the fertilizer to dealers was Rs. 1005 per ton under the Central Government 's previous notification dated 11.10.1973 which was superseded by its subsequent notification dated 1.6.1974 in which the price fixed for sale of the same variety of fertilizer to dealers was Rs. 1960 per ton from the date of that notification.
The price fixed for sale by dealers was Rs. 1050 per ton under the superseded notification dated 11.10.1973 and Rs. 2000 per ton in the notification dated 1.6.1974.
The learned Judges of the High Court noted the obvious fact that the dealers would get an excessive margin of Rs. 995 per ton in respect of the old stock purchased by them at Rs. 1005 per ton by selling that stock at the new sale price of Rs. 2000 per ton fixed by the notification dated 1.6.1974, whereas under the notification dated 11.10.1973 their margin was only Rs. 45 per ton.
They have expressed the view that it could be a legitimate circumstance to persuade them to exercise their discretion under Article 226 of the Constitution against the appellants.
The learned Judges rejected the contention urged on behalf of the dealers that there is conflict of power exercised by the Central Government and the State Government in the same commodity, fertilizer, by the two notifications dated 1.6.1974 and 14.6.1974 on the ground that the under which the Fertilizer (Control) Order, 1957 has been made and the Central Government 's notification dated 1.6.1974 has been issued and the Defence of India Act, 1971, under which the Defence of India Rules, 1971 have been framed and the State Government 's notification dated 14.6.1974 has been issued, are both Central enactments operating in different fields and have different objects, that it is only an accident that the two notifications relate to the same commodity, fertilizer, considered as an essential commodity by the Central Gov 369 ernment under the and as a commodity essential to the community by the State Government under the Defence of India Rules, that the State Government has unfettered power under Rule 114 of the Defence of India Rules, 1971 to fix the price of fertilizer and regulate its supply notwithstanding the fact that fertilizer is an essential commodity under the and that the State Government can also do under the Defence of India Rules, 1971 framed under the Defence of India Act, 1971 what the Central Government can do under the Fertilizer (Control) Order, 1957 made under the .
The learned Judges rejected the argument of the learned Advocate General that the Central Government 's notification dated 1.6.1974 does not apply to stock of fertilizer which the dealers had carried forward from the stock which was available on 31.5.1974 and held that in view of s.37 of the Defence of India Act, 1971 which says that the provisions of that Act or any Rule made thereunder or any Order made under any such Rule shall have effect not withstanding anything inconsistent therewith contained in any enactment other than that Act, or in any instrument having effect by virtue of any enactment other than that Act confers supremacy on the later State Government notification dated 14.6.1974 over that of the Central Government dated 1.6.1974.
They held that the similar provision in s.6 of the which says that any order made under s.3 of that Act shall have effect notwithstanding anything inconsistent therewith in any other enactment or any instrument having effect by virtue of any enactment other than that Act will not have any effect on the power of the State Government exercised under the Rules made under the later Defence of India Act, 1971 which also is a Central enactment on the ground that the provisions of the later enactment prevail over those in the earlier enactment of the same legislative body in view of s.37 of the later Act.
The learned Judges of the High Court rejected the contention urged on behalf of the dealers that the is a special Act dealing with essential commodities and the Defence of India Act, 1971 is a general Act dealing with all other commodities and, therefore, the notification dated 1.6.1974 issued by the Central Government under the Fertilizer (Central) Order, 1957 made under the provisions of that Act must prevail over the State Government 's notification dated 14.6.1974 issued under the Defence of India Rules, 1971, framed under the Defence of India Act, 1971.
They have observed that no question of special or general Act arises in these cases in view of the provisions contained in s.37 of the Defence of 370 India Act, 1971 and that s.6 of the draws within its ambit only those Acts which were in existence and in force on the date of commencement of that Act and that it cannot take within its ambit the later Defence of India Act, 1971.
The learned Judges of the High Court rejected the contention urged on behalf of the dealers that the State Government 's impugned notification dated 14.6.1974 is malafide and motivated and the result of colourable exercise of power.
There is no need to refer to this ground of attack in detail as no argument was advanced in this Court about any such ground.
The next contention urged before the learned Judges of the High Court on behalf of the dealers was that the State Government 's notification dated 14.6.1974 was discriminatory on the ground that some governmental agencies falling within the definition of "dealer" in the Fertilizer (Control) Order, 1957 were permitted to sell their stock of fertilizer carried over from 31.5.1974 at the new rate mentioned in the Central Government 's notification dated 1.6.1974.
The learned Judges rejected this contention on the ground that the impugned notification dated 14.6.1974 applies to all dealers of fertilizer equally and does not provide for any such discriminatory treatment to governmental agencies and that the executive order to that effect, if any, may be illegal and would not invalidate the impugned notification as being discriminatory.
The learned Judges of the High Court thus upheld the validity of the State Government 's impugned notification dated 14.6.1974 and held that it is only prospective in operation and would apply only to sales of fertilizer made from 14.6.1974 out of the stock which was available with the dealers at the end of 31.5.1974.
The appellants are dealers in fertilizer as defined in Clause 2(c) of the Fertilizer (Control) Order, 1957.
According to that clause "dealer" means any person carrying on the business of selling fertilizer, whether wholesale or retail.
According to Clause 2(d) of that Order, fertilizer means any substance used or intended to be used as a fertilizer of the soil and specified in column 1 of Schedule I and includes a mixture of fertilizers and a special mixture of fertilizers.
Trade and commerce in, and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in public interest fall under entry 33 of the Concurrent List III in the Seventh 371 Schedule of the Constitution.
Trade and commerce within the State subject to the provisions of Entry 33 of List III fall under entry 26 of the State List II in the same Seventh Schedule.
Fertilizer is an essential commodity under s.2(a)(xi) of the .
The Fertilizer (Control) Order, 1957, has been made in exercise of the power conferred by s.3 of the in respect of fertilizer.
Under Clause 3(1) of that Order the Central Government has power, with a view to regulating equitable distribution of fertilizers and making fertilizers available at fair prices, by a notification in the official gazette, to fix the maximum price or rates at which any fertilizer may be sold by a manufacturer or a dealer.
The Central Government had issued the notification dated 11.10.1973 fixing the maximum sale price by producers to dealers as Rs. 1005 per ton and the maximum sale price by dealers to consumers as Rs. 1050 per ton in respect of the variety of fertilizer with which we are concerned in these appeals.
There is nothing on record to show that when that notification of the Central Government was in force there was any notification of the State Government of Uttar Pradesh fixing the maximum price of fertilizer for sale by dealers.
Subsequently, the Central Government issued the notification No. G.S.R. 254E dated 1.6.1974 fixing the maximum price at which a dealer could sell that variety of fertilizer as Rs. 2000 per ton in supersession of the earlier notification dated 11.10.1973.
There is no dispute that the price fixed for sale of that variety of fertilizer by the producer to the dealer is Rs. 1960 per ton.
Under s.3(1) of the Defence of India Act, 1971 the Central Government had power, by notification in the Official Gazette, to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.
Section 1(3) of that Act said that the Act shall come into force at once and shall remain in force during the period of operation of the Proclamation of Emergency and for six months thereafter.
There is no dispute that the Emergency which was in force when that Act was passed was lifted on 22.3.1977.
Rule 114(2) of the Defence of India Rules, 1971 made in exercise of the power conferred by s.3(1) of the Defence of India Act, 1971 says that if the Central Government or the State Government is of opinion that it is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices, it may, by order 372 provide for regulation or prohibiting the production, manufacture.
supply and distribution, use and consumption of articles or things and trade and commerce therein or for preventing any corrupt practice or abuse of authority in respect of any such matter.
Rule 114(3)(h) gives power to the Central Government or the State Government to fix the prices or rates at which articles or things of any description whatsoever may be sold or hired or for relaxing any maximum or minimum limits otherwise imposed on such prices or rates.
It is under that rule that the State Government issued the impugned notification No. A 490(V)/XII 1974 dated 14.6.1974 fixing the maximum price of the concerned variety of fertilizer in these terms : "No registered dealer shall charge or retain or enter into or enforce any contract for charging, in respect of any fertilizer sold to any person on or after June 1, 1974 a from out of any stock carried over by him from May 31,1974 a price exceeding the maximum price fixed under Clause 3 of the Fertilizer (Control) Order, 1957 as it prevailed on May 31, 1974".
The reference to the price as it prevailed on May 31, 1974 is to the price fixed in the Central Government 's notification dated 11.10.1973 which has been specifically superseded by the Government 's notification dated 1.6.1974.
The High Court has held that the impugned notification dated 14.6.1974 is prospective in operation and can apply only to sales made from 14.6.1974 of the fertilizer which was carried over from the stock held at the close of 31.5.1974.
It is not disputed that the notification could be only prospective in operation and would not apply to sales effected up to 14.6.1974 of the fertilizer carried over from the stock which was held at the end of 31.5.1974.
It is also not disputed that the State Government issued the impugned notification with the object of preventing dealers from profiting to the extra extent of Rs. 950 per ton in respect of the stock which had been purchased by them prior to 1.6.1974 at Rs. 1005 per ton by selling the same at Rs. 2000 per ton fixed in the notification dated 1.6.1974 while that stock could have been sold prior to 1.6.1974 only at Rs. 1050 per ton.
The question is which of these two notification is valid and should prevail in regard to the fertilizer carried over from the stock held by dealers at the close of 31.5.1974.
The Central Government 's notification dated 1.6.1974 issued under Clause 3(1) of the Fertilizer (Control) Order, 1957 made in exercise of the power conferred by s.3(1) of the , and the State Government 's impugned notification dated 373 14.6.1974 issued under Rule 114 of the Defence of India Rules, 1971 made in exercise of the powers conferred by s.3(1) of the Defence of India Act, 1971 relate to the same commodity, fertilizer, which is declared to be an essential commodity under s.2(a)(xi) of the , and may ordinarily fall under the term "article or things of any description whatsoever" occurring in Rule 114(3)(h) of the Defence of India Rules 1971 and both of them fix the maximum price at which dealers can sell the fertilizer.
The Central Government 's notification dated 1.6.1974 applies to the whole country while the impugned notification dated 14.6.1974 of the State Government can apply only to the State of Uttar Pradesh.
The appellants ' attack on the impugned notification is two fold.
The first ground of attack forcibly urged by Mr. P. Govindan Nair, Senior Counsel appearing for one set of appellants is that the impugned notification is altogether invalid in law and non est on the ground that the State Government has no power whatsoever to issue the notification under the Defence of India Rules in respect of an essential commodity, fertilizer, covered by the Central Government 's notification issued under the Fertilizer (Control) Order, 1957, made in exercise of the power conferred by the .
The second ground of attack urged by Mr. Yogeshwar Prasad, Senior Counsel appearing for the other set of appellants is based on Article 14 of the Constitution, namely, that it is discriminatory and, therefore, bad in law.
Mr. S.C. Manchanda, Senior Counsel appearing for the respondents in all the appeals naturally submitted that there is no substance in any of these two grounds.
The second ground of attack projected by Mr. Yogeshwar Prasad may be taken up first for consideration.
This ground has been considered by the learned Judges of the High Court as the fifth ground of attack before them at pages 29 to 31 of the paper book in Civil Appeals 1568 1576 of 1974, and rejected by them.
The submission of Mr. Yogeshwar Prasad is that some governmental agencies falling within the definition of "dealer" in the Fertilizer (Control) Order, 1957 were permitted by the State Government to sell the fertilizer carried over from the stock held at the close of 31.5.1974 at the new enhanced rate of Rs. 2000 per ton fixed in the Central Government 's notification dated 1.6.1974 and that it is discriminatory against the private dealers who are required by the impugned notification to sell at the old rate of Rs. 1050 per ton fixed in the Central Government 's old notification dated 11.10.1973.
To show that such a direction was given by the State Government, Mr. Yogeshwar 374 Prasad invited attention to the first sentence in the radiogram 23.7.1974 issued by the Chief Secretary to the Government of Uttar Pradesh.
That sentence reads as follows : "All stocks of fertilizer available with ASO, AGRO Cooperatives and Cane Unions be distributed without any condition regarding purchase of fertilizers at new rates".
It is not possible to make out what exactly was intended to be conveyed by that sentence in the radiogram.
In the counter affidavit of the Accounts Officer, Fertilizers and Manures Directorate of Agriculture, Government of Uttar Pradesh, filed in C.M.P. 6773 of 1974 on the file of this Court, it is stated that the State Government has not allowed any State owned agency to sell the stocks of fertilizer carried over from 31.5.1974 at the rates fixed in the Central Government 's notification dated 1.6.1974, that the radiogram was not meant to permit Agricultural Supplies Organisation and the Agro Industrial corporation and other governmental agencies to sell the stocks carried over from 31.5.1974 at the revised rates and that it was issued to remove only the condition.
There is no other material on the record to show that any direction was given by the State Government for the governmental agencies to sell the fertilizer carried over from 31.5.1974 at the enhanced rate fixed in the Central Government 's notification dated 1.6.1974.
Therefore, the very basis of the contention of Mr. Yogeshwar Prasad that there is any discrimination against private dealers like the appellants represented by him compared with governmental agencies in the matter of the sale price of fertilizer has not been established.
Even if any such direction had been given, it would certainly be bad in law as being discriminatory.
It would not, however, invalidate the impugned notification which per se applies to all dealers of fertilizers in the entire State of Uttar Pradesh, whether private or governmental.
Consequently, the impugned notification of the State Government cannot be held to be bad in law on the ground of discrimination if it is otherwise valid.
Mr. Manchanda relied upon the aforesaid counter affidavit in support of his contention that there is no basis for the contention that there is any discrimination against private dealers.
The second ground of attack projected by Mr. Yogeshwar Prasad fails and has been rightly rejected by the learned Judges of the High Court.
The first ground is as regards the power of the State Government to issue the impugned notification dated 14.6.1974, fixing for the sale of fertilizers by dealers to consumers a price different from the one fixed in the Central Government 's notification dated 1.6.1974.
In considering this question the fact that the notification was issued by the State Government with the object of preventing dealers in the State 375 of Uttar Pradesh from driving under excessive profit from agricultural consumers in respect of the fertilizer which had been purchased by the dealers at Rs.1005 per ton under the old Central Government 's notification dated 11.10.1973 and that it applies to the fertilizer which was in stock at the end of 31.5.1974, should not weigh with the Court, for the question is of the power of the State Government to issue the notification.
The question is whether the State Government has power to fix the price of fertilizer under the Defence of India Rules, 1971, framed in exercise of the powers conferred by the Defence of India Act, 1971 after the Central Government had already fixed the price under the Fertilizer (Control) Order, 1957 made in exercise of the power conferred by the .
If in law the State Government could fix the price in respect of the limited stock of fertilizer carried over from 31.5.1974, it can certainly fix the price of the fertilizer received by the dealers even after 1.6.1974 in respect of which the Central Government 's notification dated 1.6.1974 would undoubtedly apply.
The in an enactment passed by Parliament to provide, in the interest of the general public, for the control of the production, supply and distribution and trade and commerce in certain commodities which have been notified under that Act as essential commodities.
The very object of the is to check the inflationary trends in prices and to ensure the equitable distribution of essential commodities.
Section 1(2) of that Act makes it applicable to the whole of India.
It is a permanent enactment in the sense that its operation is not restricted to any particular period.
The Fertilizer (Control) order, 1957 has been made in exercise of the power conferred by s.3(2)(c) of the for controlling the price at which any essential commodity may be bought or sold.
Fertilizer has been declared to be an essential commodity under s.2(a)(xi) of the as mentioned above.
Therefore, the price fixed in the notification issued under the Fertilizer (Control) Order, 1957 squarely applies to fertilizer.
The Defence of India Act, 1971 also is an Act of Parliament which was intended to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith.
That Act also extended to the whole of India, but under s.1(3), it came into force at once and remained in force during the period of operation of the Proclamation of Emergency and for a period of six months thereafter.
Sub clause (a) of Sub section (3) of section 1 saves anything duly done under the Act as if the 376 Act had not expired.
As stated earlier the Emergency which was in force when the State Government 's impugned notification dated 14.6.1974 was issued, was lifted on 22.3.1977.
The life of the Defence of India Act, 1971 thus extended upto six months after 22.3.1977.
In that way the Defence of India Act, 1971 was a temporary enactment intended to be in operation for only a limited period.
The Defence of India Rules, 1971 had been issued in exercise of the power conferred by s.3 of the Defence of India Act, 1971.
Under Rule 114(2) of those Rules, if the Central Government or the State Government is of opinion that it is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or things and trade and commerce therein or for preventing any corrupt practice or abuse of authority in respect of any such matter.
Sub rule (3)(h) of Rule 114 said that without prejudice to the generality of the powers conferred by sub rule (2) an order made thereunder may provide for controlling the prices or rates at which articles or things of any description whatsoever may be sold or hired or for relaxing any maximum or minimum limits otherwise imposed on such prices or rates.
The State Government 's impugned notification has been issued, as already stated, in exercise of the power conferred by this sub rule of Rule 114.
The Central Government had already assumed power under the to control the price of essential commodities including fertilizer as a permanent measure, and could do under the provisions of that Act in relation to that essential commodity what it may do under the Defence of India Act, 1971, a temporary measure, if fertilizer could be brought under the description of "articles or things of any description whatsoever".
But since it had already assumed the power under the to control the price of fertilizer it was not necessary for it to get itself armed once again with the power to control the price of the same essential commodity under the Defence of India Act, 1971 which came about 16 years later.
Therefore, the contention of Mr. 377 Govindan Nair that the is a special enactment relating to only essential commodities and the Defence of India Act, 1971 is a general enactment relating to all other commodities, and that the words "articles or things of any description whatsoever" occurring in Rule 114(3)(h) of the Defence of India Rules, 1971 cannot be understood to include essential commodities has force and has to be accepted.
It cannot be assumed that Parliament which had already legislated in the , a permanent measure, in respect of fertilizer intended to legislate once again and could have felt the need to legislate once again in the temporary Defence of India Act, 1971 in respect of the same article, especially because what could be done under the Defence of India Act and the Rules which may be framed thereunder could as well be done with equal force under the and orders which may be passed thereunder.
Therefore, the contention that the State Government has no power to fix the price of essential commodities covered by the and the Fertilizer (Control) Order, 1957 in exercise of the power conferred on it by Rule 114 of the Defence of India Rules, 1971 issued under the Defence of India Act, 1971 is well founded and has to be accepted.
Section 3(2)(c) of the , pursuant to which the Fertilizer (Control) Order, 1957 has been made says that without prejudice to the generality of the powers conferred by sub section (1) an order made thereunder may provide for controlling the price at which any essential commodity may be brought or sold.
This sub clause of s.3 of the has not left anything to be done under the Defence of India Act, 1971 in the matter of fixation of price of any essential commodity whether it be for securing any essential commodity for the defence of India or for the effective military operation or for securing the equitable distribution and availability of essential commodities at fair prices or distribution thereof and trade and commerce therein as envisaged in s.3(1) of that Act.
If the State Government felt that there was any special circumstance to be taken into account for fixing the price of the essential commodity fertilizer, in the State of Uttar Pradesh at a rate lower than the one fixed by the Central Government in its notification dated 1.6.1974, it could have achieved that object by getting steps to be taken under the itself.
Section 3(2) of that Act lays down that the Central Government may, having regard 378 to the local conditions of any area and other relevant circumstances, fix different prices or rates in respect of different areas and for different classes of consumers.
The State Government could have requested the Central Government to act under s.3(2) of the and fix a different price or rate for the sale by dealers in that State of fertilizer carried over from the stock held on 31.5.1974.
Section 5(b) of the provides for delegation of powers and says that the Central Government may, by notified order, direct that the power to make or issue notifications under s.3 of that Act shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction be exercisable also by such State or such officer or authority subordinate to a State Government as may be specified in the direction.
The Central Government has not issued any direction under s.5(b) of the delegating its power to issue notification under s.3 of that Act to the State Government or any officer or authority of that Government.
The State Government has thus not resorted to the provisions contained in s.3(2) or s.5(b) of the , but has proceeded to fix the price of fertilizer on its own under the Defence of India Rules, 1971 which it cannot do under those Rules and the Defence of India Act, 1971 in respect of the essential commodity.
Section 6 of the saves any order made under s.3 of that Act from the impact of any other enactment.
It is not possible to accept the contention that the other Act or enactment referred to in s.6 of the would be only the Act or enactment which was in force on the date of commencement of that Act and not any future Act or Acts.
This contention has been wrongly rejected by the learned Judges of the High Court.
Section 6 of the says that an order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than that Act or any instrument having effect by virtue of any enactment other than that Act.
It is true that there is a similar saving provision in s.37 of the Defence of India Act, 1971 which says that the provisions of that Act or any Rule made thereunder or any order made under any such Rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than that Act or in any instrument having effect by virtue of any enactment other than that Act.
But as stated above, the Defence of India Act, 1971, which was a general and temporary Act and the Rules framed thereunder cannot apply to fertilizer which is an essential commodity governed 379 by the and the Fertilizer (Control) Order, 1957 made under the provisions of that Act.
Therefore, the State Government cannot without delegation issue any notification under the Defence of India Act and Rules, 1971 in regard to the price of fertilizer an essential commodity governed by the and the Fertilizer (Control) order, 1957.
The learned Advocate General of the State was perhaps fully conscious of the legal position that the State Government cannot fix the price of an essential commodity by any notification under the Defence of India Rules, 1971 in the circumstances when he took the patently unacceptable stand before the learned Judges of the High Court that the State Government did not in fact fix the price of fertilizer in its impugned notification dated 14.6.1974 but it only directed that certain stock of fertilizer which was in the possession of dealers at the end of 31.5.1974 and was carried over by them shall be sold at the rate fixed in the Central Government 's earlier notification dated 11.10.1973, which as stated above, has been specifically superseded by its subsequent notification dated 1.6.1974.
If the State Government had not fixed the price at which fertilizer can be sold be dealers by the impugned notification dated 14.6.1974 though it is no doubt in respect of the stock carried over from 31.5.1974, one fails to see what else it did or why it was considered necessary.
Therefore, the learned Judges of the High Court have rightly rejected that submission of the learned Advocate General.
As stated above, trade and commerce in and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest fall under entry 33 of the Concurrent List III, and trade and commerce within the State subject to the provisions of Entry 33 in the Concurrent List III fall under Entry 26 of List II of the Seventh Schedule to the Constitution.
If the State Government 's impugned notification is assumed to be a law enacted by that State 's Legislature on Entry 26 of List II, since the Act of Parliament passed on Entry 33 of List III and the Fertilizer (Control) Order, 1957 passed under that Act were already in force, the assent of the President had to be received in order that the State Government 's notification assumed to be a law enacted by the State 's Legislature may prevail in the State as required by Article 254(2) of the Constitution which reads thus: "Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent 380 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 assent, 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.
" There is nothing on record to show that the impugned notification of the State Government was placed before the President for his assent and that his assent has been received.
Therefore, the State Government 's impugned notification even as a law cannot prevail over the earlier notification of the Central Government.
The learned Judges of the High Court were not right in rejecting the submission made before them that there is conflict between the two notifications of the Central Government dated 1.6.1974 and of the State Government dated 14.6.1974 and in holding that the State Government has unfettered power under the Defence of India Act, 1971 to fix the price of fertilizer and regulate its supply notwithstanding the fact that fertilizer is an essential commodity under the in observing and that what the Central Government can do under the Fertilizer (Control) Order, 1957 the State Government can do under the Defence of India Rules, 1971.
There is a clear conflict between the two notifications in respect of the same essential commodity, fertilizer, for under the Central Government 's notification dated 1.6.1974 the price at which a dealer can sell fertilizer of the concerned variety is Rs. 2000 per ton while under the State Government 's notification dated 14.6.1974 it is only Rs. 1050 per ton though no doubt it is restricted to the stock carried over from 31.5.1974 which is immaterial in judging the power of the State Government to fix the price of an essential commodity by a notification made under the Defence of India Rules, 1971 in respect of which the Central Government had already fixed the price under the Fertilizer (Control) Order, 1957.
Once the Central enactment and the Central Government 's notification govern the price of an essential commodity the State Government 's notification issued in exercise of the delegated authority under the Defence of India Act and the Rules framed thereunder cannot prevail.
The Two enactments have 381 to be read in such a way that there is no conflict between them while giving effect to them in their respective fields of operation.
On the question of conflict and interpretation of statutes, we find the following passage in Craies on Statute Law (seventh edition) at page 222: "Acts of Parliament sometimes contain general enactments relating to the whole subject matter of the statute, and also specific and particular enactments relating to certain special matters; and if the general and specific enactments prove to be in any way repugnant to one another, the question will arise, which is to control the other ? In Pretty vs Solly(1) Romilly M.R. stated as follows what he considered to be the rule of construction under such circumstances.
"The general rules," said he, "which are applicable to particular and general enactments in statutes are very clear; the only difficulty is in their application.
The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would over rule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply".
The following passage found at page 187 of the twelfth edition of Maxwell on the Interpretation of Statutes may also be noticed: "If two sections of the same statute are repugnant, the known rule is that the last must prevail".
But, on the general principle that an author must be supposed not to have intended to contradict himself, the Court will endeavour to construe the language of the legislature in such a way as to avoid having to apply the rule, leges posteriors priores contrarias abrogant.
For example, the provision in order 47 of the Country Court Rules 1936 that "the scale of costs in an action for the recovery of a sum of money only shall be determined. as regards the costs of the plantiff, by the amount recovered" was not construed as peremptory, for this would have brought it out of harmony with the earlier provision in the same order that "the costs of proceedings in a Country Court shall be in the discretion of the Court.
" 382 One way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations.
" There will be clear conflict between the two notifications if it is understood that the State Government also can fix the price of any essential commodity covered by the and the Fertilizer (Control) order, 1957 in exercise of the power conferred on it by the Defence of India Act, 1971 and the Defence of India Rules, 1971.
The conflict can be avoided only if it is held that the and the Fertilizer (Control) order, 1957 deal with essential commodities and the Defence of India Act, 1971 and the Defence of India Rules, 1971 deal with all other articles and things of any description whatsoever.
The author of the two enactments, and Defence of India Act, 1971 is the same, namely, Parliament, and Parliament must be held to have not intended to contradict itself while dealing with distinct matters or situations under those enactments.
If the State Governments are free to fix their own prices in notifications issued by them under the Defence of India Rules, 1971 when the Central Government 's notification fixing a single price for the whole country in respect of an essential commodity is in force that notification of the Central Government will become otiose.
The question is whether Parliament would have intended such a consequence.
The answer can only be an emphatic No.
That situation has to be clearly avoided by a proper interpretation of the respective powers of the Central and State Governments under the two Acts, and by holding that the , and the Fertilizer (Control) order, 1957 deal with essential commodities and the Defence of India Act, 1971 and the Defence of India Rules, 1971 dealt with all other commodities notwithstanding that fact that Rule 114(3)(h) mentions "articles or things of any description whatsoever".
In Municipal Corporation of Delhi vs Shiv Shankar(1) it is observed: "To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinize and consider the true meaning and effect both of the earlier and the later statute.
Until this is done it cannot be satisfactorily ascertained if any fatal inconsis 383 tency exists between them.
The meaning, scope and effect of the two statutes, as discovered on scrutiny, determine the legislative intent as to whether the earlier law shall cease or shall only be supplemented.
If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in paralleled lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface.
Statutes in pari materia although in apparent conflict should also so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict".
If the and the Fertilizer (Control) order, 1957 are considered to apply exclusively to fertilizer, an essential commodity, and the Defence of India Act, 1971 and the Defence of India Rules, 1971 are considered to apply to other commodities excluding essential commodities there would be no conflict whatsoever between the and the Defence of India Act and between the notifications issued under Fertilizer (Control) order, 1957 and the Defence of India Rules, 1971.
If that is not done there will be real conflict between the two and, therefore, the two Acts must be so construed as to avoid conflict in the manner indicated above.
Mr. Manchanda invited attention to the following observation in Zaverbhai Amaidas vs The State of Bombay(1) "It is true, as already pointed out, that on a question under article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment will be equally applicable to a question under article 254(2) whether the further legislation by Parliament is in 384 respect of the same matter as that of the State law. ' There is no question of placing the later law, Defence of India Act, 1971, for consideration by the President under Article 254(2) of the Constitution for both the laws, the and Defence of India Act, 1971 are laws passed by Parliament.
There does not appear to be any provision for placing any notification made by a State Government under the Defence of India Rules, 1971 for consideration by the President.
As already stated, if the impugned State Government 's notification is, however, considered to be in the nature of a State law there is nothing on the record, to show that it was placed before the President for consideration and had received his assent as already stated.
Relying upon the above decision in Zaverbhai Amaidas vs The State of Bombay (supra) Mr. Manchanda made a half hearted plea that the impugned State Government 's notification relates only to fertilizer which was carried over from the stock held at the close of 31.5.1974 and that it is intended to protect agricultural consumers from dealers making undue profit and should therefore, be held to be, valid in law.
It is not possible to accept this submission of Mr. Manchanda.
There is no basis, whatsoever, to presume, and it will, be totally uncharitable to the Central Government to presume, that the Central Government which had assumed powers under the to control the distribution of fertilizer and make it available at fair prices to consumers was ignorant of or had overlooked the fact while making the notification dated 1.6.1974 fixing a higher price for dealers to sell fertilizer to consumers with effect from that date that there may be some stock of fertilizer on 31.5.1974 purchased by dealers at lower prices which may be carried over for sale subsequently.
What has been done by the State Government under the impugned notification is utterly lacking in power and cannot be allowed to stand merely because it relates only to a comparatively small quantity of fertilizer carried over from the stock of 31.5.1974 and was intended to benefit and protect agricultural consumers and prevent dealers from making undue profits.
For the reasons stated above the appeals are allowed and the impugned State Government 's notification dated 14.6.1974 is quashed.
There will be an order directing the District Agricultural officers and other District Authorities in the State of Uttar Pradesh not to ask the dealers to refund the excess in respect of the sales completed prior to the date of the impugned notification.
The District Magistrates concerned shall return the monies deposited with them by the dealers pursuant 385 to this Court 's orders dated 2.9.1974 and 30.10.1974.
The respondents shall pay the appellants ' costs.
There will be one set of advocate 's fees in the batch of appeals in which the appellants are represented by Mr. Govindan Nair and another set of advocate 's fees in the other set of appeals in which Mr. Yogeshwar Prasad appears for the appellants.
H.S.K. Appeals dismissed.
| The appellant, Gopinath Ghosh along with Bharat Ghosh @ Sadhu, and Jagannath Ghosh, was convicted and sentenced to life imprisonment under Section 302 read with Section 34 I.P.C. for having committed the murder of Rabi Ghosh, son of Kartik Ghosh on August 19, 1974.
The High Court in appeal, accepted the plea of the two other accused only and acquitted them, while confirming the conviction and sentence of the appellant.
The appellant for the first time in the Supreme Court raised the New Plea that as he was a "child" within the meaning of the expression in West Bengal Children Act, 1959, the entire trial was vitiated.
The court, by its order dated March 11,1983 directed the Session Judge Nadiar to give a finding on the age of the appellant on the date of the occurrence.
The Sessions Judge, in his report, after detailed examination of the evidence of Chief Medical officer of Health, Nadia, (PWI), Radiologist (PW2) orthopaedic Surgeon (PW3), another doctor Mr. R.B. ROY (PW4), the mother of the appellant (PW5) and the Headmaster of the School who brought records of the School, gave a finding that the appellant was aged between 16 and 17 years on the date of occurrence i.e. on August 19, 1974, which finding is not challenged by the State.
Allowing the appeal by Special leave, the Court, ^ HELD: 1.1 A combined reading of Sections 2(d), 2(h), 4 to 6, 22, 23, 24 (2) and 26 of the West Bengal Children Act, 1959 makes it clear that where a juvenile delinquent is arrested, he/she has to be produced before a juvenile court, and if no juvenile court is established for the area amongst others, the court of Session will have powers of a juvenile court; (b) such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is likely to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice; (c) Section 25 forbids any criminal or a juvenile delinquent and only an inquiry can be held in accordance with the provisions of the code of Criminal 804 Procedure for the trial of a summons case; and (d) the bar of Section 24 which had been given an over riding effect as it opens with the non obstante clause takes away the power of the court to impose a sentence of imprisonment unless the case falls under the proviso.
[808 A C 1.2 In the instant case, the entire trial of the appellant is without jurisdiction and is vitiated.
The report of the Sessions Judge unquestionably established by unassailable evidence that the appellant having been 16 to 17 years of age on the date of occurrence was a juvenile delinquent and therefore the Magistrate could not have committed his case to the court of Session.
Only an inquiry could have been held against him as provided in Section 25 of the Act unless the case of the appellant falls within the proviso to Section 24 (2).
[808 H, 809 A B] 1.3 ordinarily, the Supreme Court would be reluctant to entertain a based on factual averments for the first time before it.
However, the court is equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in court.
In view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that child hood and youth are protected against exploitation and against moral and material abandonment, it would not be proper to allow a technical contention that the plea is being raised for the first time in the court and thereby thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.
F H] Practice Directions: Whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or under taking an inquiry, an inquiry must be made about the age of the accused on the date of occurrence.
This sought to be made so where special Acts dealing with juvenile delinquents are in force.
If necessary, the Magistrate may refer the accused to the medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy evidence about age.
The magistrate may as well call upon accused also to lead evidence about his age.
Thereafter, the learned Magistrate may proceed in accordance with law.
This procedure, if properly followed, would avoid, a journey upto the apex court, and the return journey to the gross root court.
[809 H; 810 A B] (The court suggested, that if necessary an found expedient, the High Court, on the administrative side may issue necessary instructions to cope with such situation).
[810 B]
|
iminal Appeal No. 79 of 1952.
Appeal by special leave from & Judgment and Order dated 16th April, 1951, of the High Court of Judicature at Allahabad Dayal and Desai JJ.) in Criminal Miscellaneous No. 17 of 1950.
K. section Krishnaswami Iyengar (H. B. Asthana, with him) for the appellants.
N. C. Sen for the respondent.
February 5.
The Judgment of the Court was delivered by MAHAJAN J.
This is an appeal by special leave from the judgment and order dated the 16th April, 1951 of the Allahabad High Court in Criminal Miscellaneous Petition No. 17 of 1950.
The two appellants are members of the Uttar Pradesh Civil Service.
583 In March, 1950, appellant No. 1 (Rizwan ul Hasan) was posted as District Magistrate, Jalaun, and appellant No. 2, Mohammad Munawar, was posted as a Magistrate in the same district, having officiated as District Magistrate for some time in the early part of March, 1960.
On 2nd March, 1,950, one Phundi Singh commenced proceedings under section 145 of the Code of Criminal Procedure in the Court of the Sub Divisional Magistrate of Jalaun on the allegation that Kedarnath and Matadin were about to cut his standing crop by force and 'that there was an imminent danger of a breach of the peace.
The magistrate issued notices to the parties complained against and ordered attachment of the standing crop.
On 4th March, 1950, one Shriram, brother of Kedarnath, filed a counter application before the court making certain allegations against one Thakur Pratap Singh, said to be the real person behind the proceedings commenced by Phundi Singh.
Kedarnath and Matadin, the respondents in Phundi Singh 's application, also filed an application similar to that of Shriram before the District Magistrate on the same date.
This application was accompanied by a recommendatory letter written to the District Magistrate by Lalla Ram Dwivedi, Secretary, District Congress Committee.
It was received by the second appellant who was then officiating as District Magistrate and was sent by him to the Sub Divisional Magistrate, Jalaun, in whose court Phundi Singh 's application was pending, for report.
The Sub Divisional Magistrate returned it with the remark that a proper com plaint should be made in his court in the ordinary way on the allegations made in the application.
Thereupon the second appellant returned the application to Kedarnath and Matadin and advised them to move the Sub Divisional Magistrate in as formal and proper manner.
On the application of Phundi Singh made before the High Court of Allahabad under section 3 of the 584 Contempt of Courts Act, the second appellant was held guilty of contempt of the Sub Divisional Magistrate on the following reasoning Shri Mohammad Munawar opposite party No. 5 forwarded application given by the opposite parties Nos ' 2 and 3 together with introductory letter to the Sub Divisional Magistrate,Jalaun.
We do not think that he had any intention to influence the Sub Divisional Magistrate with respect to his action in the case under section 145, Criminal Procedure Code.
But intention is not 'of importance so far as the question of commission of contempt is concerned.
He certainly acted without due circumspection and thought.
It must have been clear to him that the application contained expression which affected the due considerations of the points in dispute in the proceeding under section 145, Criminal Procedure Code.
He says in his affidavit and we can accept it that he sent this application to the Sub Divisional Magistrate just for taking action for the protection of opposite parties No. 2 and No. 3 and their crop about which an allegation was made that some action was to be taken by the other party the night following.
He should in the circumstances either pass an order for the police himself which he could have very well done, or he could have just conveyed a gist of the complaint necessitating protection of life and property immediately.
His conduct in transmitting the allegations made by the opposite parties No. 2 and 3 to the Sub Divisional Magistrate, Jalaun, in whose court the case under section 145, Criminal Procedure Code, was pending, did amount to the commission of contempt of that court." As regards the first appellant, the facts are that on 22nd March an application was received by post in the office of the District Magistrate signed by Shriram containing allegations against the trying Magistrate.
On 25th March, 1950, this application was sent by the appellant for report to the Sub Divisional Magistrate with the following endorsement 585 section D.C.
Please look into these allegations and let me have a report.
" On 4th April, 1950, the Sub Divisional Magistrate submitted a report and the first appellant having been satisfied that the allegations were baseless passed the following order: " I do not see any reason to withdraw the case from your file." On the application of Phundi Singh mentioned above made before the High Court of Allahabad under section 3 of the Contempt of Courts Act this appellant along with others was also held guilty of contempt of the Sub Divisional Magistrate 's Court, on the following reasoning : "Similarly transmission of the application sent by Shriram on the 25th March to the Sub Divisional Magistrate, Jalaun, amounted to commission of contempt of court by opposite party No. 6.
The mere fact that he had to take action in view of the allegations against the magistrate in that application would not affect this question.
The application contained, as already stated, expressions showing that Phundi Singh was a history sheeter and that the case under section 145, Criminal Procedure Code, was fictitious and was instituted at the instance of Pratap Singh.
He should not have transmitted the entire application.
He could have necessary extracts which related to the allegations against the magistrate sent to the ' court concerned in the circumstances when the applicants introduced matter irrelevant for transfer application.
It may also be mentioned here that the application could be treated as a transfer application though no such request was made in that application.
The application was neither properly presented nor was it accompanied by an affidavit nor was it stamped.
The applicant wanted some action for the protection of his crop from bad characters." Having found both the appellants guilty of contempt of court of the Sub Divisional Magistrate, Jalaun, the High Court took no action against them because they happened to commit contempt of court rather due to their carelessness Find lack of vigilance 586 than with any deliberate intention to commit it.
It was observed that officers who have to transmit communications to courts of justice should be vigilant and careful to see that nothing is transmitted which can have any effect, even remotely on, the merits of a case.
In our judgment, the proceedings for contempt of court against the two appellants on the facts stated are misconceived and have to be quashed.
Both the appellants were superior officers of the Sub Divisional Magistrate at the time when they sent the applications of Kedarnath and Matadin for report.
They were under a duty to supervise his work.
It is difficult to see how by transmitting the applications received by them to him, and asking him for his views they were in any way interfering with the course of justice and were committing contempt of his court.
Their action cannot be characterized as having a tendency to interfere with the course of justice.
The applications were transmitted to the Sub Divisional Magistrate in the usual and normal course of the official practice and we 'cannot subscribe to the view of the High Court that only extracts of these applications should have been sent to him for his views and not the applications as such as they contained material which had a tendency to interfere with the course of justice.
The second appellant, when he was officiating as District Magistrate, received the application of Kedarnath and Matadin with a letter of recommendation from the Secretary of the Congress Committee.
This application was in the nature of a counter complaint, and the appellant acted properly in sending it to the magistrate who was seised of the original application.
He was under no duty to censor it and to out it into pieces and then forward the relevant parts only to the magistrate.
The recommendatory letter was an annexure to the application and it had to go with it.
The conduct of the Secretary of the Congress Committee in writing a recommendatory letter about the facts of the case to the District 587 Magistrate was undoubtedly a communication for the purpose of influencing his decision and was rightly reprobated by the High Court.
Such 9, course is calculated, if tolerated, to divert the course of justice and ought more frequently than it is, to be treated as what it really is ' namely, a high contempt of court.
The Congress Secretary has been rightly held guilty of contempt and punished.
He has not come to this Court and we are no longer concerned with him.
But we are unable to find how the conduct of the appellant in sending the application which, as we have already stated, was in the nature of counter charge to the Sub Divisional Magistrate who was seised of the original complaint in any way amounted to contempt of court.
There are three different sorts of contempts known to law in such matters.
One kind of contempt is scandalizing the court itself.
There may likewise be a contempt of the court in abusing parties who are concerned in causes in that court.
There may also be a contempt of court in prejudicing mankind against persons before the cause is heard.
The act of the appellant could not fall in either of these three categories.
So far as the first appellant is concerned, under the provisions of section 528 of the Code of Criminal Procedure, he had authority to withdraw the case under section 145 of the Code pending in the court of the Sub Divisional Magistrate.
On the application of 22nd March made by Kedarnath and Matadin containing allegations against the Sub Divisional Magistrate he was entitled to use his powers under that section if the allegations contained therein were substantiated.
It is usual to send such applications to the court concerned for its remarks and that is precisely what he did.
and as soon as the remarks were received and he was satisfied that the allegations were baseless, he declined to withdraw the case.
We have not been able to see how such an action on the part of the District Magistrate, done in the normal and usual course of the discharge of his duties as such magistrate, could be held to interfere with the 76 588 course of administration of justice or to create pre re judice of any kind against the complainant in the proceedings under section 145 of the Code of Criminal Procedure.
There is nothing in section 528 of the Criminal Procedure Code which disables a magistrate from taking action unless he is set in motion by the petition of one of the parties and nothing in the Code prevents any person from bringing facts to the notice of the District Magistrate which might suggest to that magistrate that it was advisable to see whether the magistrate should remain in charge of a particular case.
In our judgment, therefore, the High Court was in error in thinking that the two appellants acted without due circumspection and thought and were guilty of contempt of the court of the Sub Divisional Magistrate.
We are further of the opinion that it was not possible to hold on those facts that any prejudice &rose in the case by these two applications being sent by the appellants to the Sub Divisional Magistrate or that any action was necessary for the protection of the tribunal which was engaged in hearing the case under section 145, Criminal Procedure Code.
As observed by Rankin C.J. in Anantalal Singha vs Alfred Henry Watson (1), the jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a, substantial interference with the due course of justice and that the purpose of the court 's action is a practical purpose and it is reasonably clear on the authorities that the court will not exercise its juris diction upon a mere question of propriety.
The result is that we allow the appeal, set aside the judgment of the High Court against the two appellants and acquit them of the charge under section 3 of the Contempt of Courts Act.
Appeal allowed.
Agent for the appellant : section Subramanian.
| On learning that the appellant was using her premises as a brothel and was supplying girls for the purpose of prostitution, the police arranged to lay a trap.
With two one hundred rupees marked currency notes given by the police two persons, M and L, went to the premises occupied by the appellant; M was to ask for a girl for the purpose of prostitution and L was to be a witness of the fact.
M selected a girl and gave the one hundred rupees note to the appellant who put it under her blouse.
When M and the girl were in the room, on signal being given, the police entered the room and found them in a rather compromising position.
A woman Panch who had accompanied the Police party searched the appellant and recovered the one hundred rupees currency note from under the blouse.
The appellant was tried for offences under ss.3(2) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, by the Magistrate who, however, acquitted her.
On appeal, the High Court accepted the prosecution case and convicted the appellant and, further ordered her eviction.
The High Court accepted the testimoney of L in regard to the payment of the hundred rupees currency note to the appellant and also the evidence in the case to show that the amount was used for the purpose of prostitution.
The appellant contended (1) that the conviction was bad because it was based only on the evidence of the police and its agents, and the search was not conducted in accordance with the provisions of the Code of Criminal Procedure, and (2) that, in any case, only the Magistrate was given the power of eviction under section 18 of the Act.
^ Held, that on the evidence accepted by the High Court, the conviction of the appellant was valid.
The practice of the Governmental authority, like the police, employing young men, particularly students studying at the educational institutions, as in the present case, in 633 order to suppress immoral traffic in women and to stop prostitution, condemned.
Held, further, that the High Court having ordered the conviction of the appellant, had the power to evict her under section 18 of the Act.
|
Civil Appeal Nos. 295 & 296 (NT) of 1974.
From the Judgment and Order dated 19.7.1973 of the Kerala High Court in I.T.R. Nos. 32 and 33 of 1971.
section Poti, section Sukumaran and D.N. Mishra, for the Appellant.
G.C. Sharma, K.C. Dua and Miss A. Subhashini, for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These two appeals arise by certificate by the High Court in Income Tax Reference Nos. 32 and 33 of 1971.
The High Court of Kerala by its judgment dated 19th July, 1973 answered the following two questions in the negative and in favour of the revenue. "(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the sums of Rs. 2,90,220 and Rs. 3,63,750 were not assessable as income of the assessee for the assessment years 1960 61 and 1961 62? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law and had material for holding that the sums of Rs. 2,90,220 and Rs. 3,63,750 are exempt from taxation under section 4(3)(vii) of the Indian Income tax Act, 1922 for the assessment years 1960 61 and 1961 62 respectively?" The references relates to assessment years 1960 61 and 1961 62.
The assessee 's accounting year was the calender year.
940 The assessee publishes a Malyalam daily newspaper by name Kerala Dhwani.
Till 1953, he was a lecturer in History and Political Science in the College at Kottayam.
He had his education in the United State of America, during 1953 to 1957.
During this period of stay in the U.S.A. he had the privilege of associating himself with the India Gospel Mission in the United States.
The India Gospel Mission, it was stated, was collecting money for its working abroad through the Indian Christian Crusade.
The assessee was also publishing a religious magazine called "Viswa Deepam".
The magazine was started in January, 1957.
The father of the assessee Shri K.G. Thomas was the Editor of Viswa Deepam.
Shri Thomas was also in America and he was also doing missionary work in America for some time.
In 1958, Shri Thomas, the lather of the assessee was in India the was going to America off and on.
Indian Christian Crusade, U.S.A. is an institution sponsoring religious education in India and it was admitted that the assessee was propagating the ideals of the Indian Christian Crusade on returning to India after finishing his education in the States.
Later on the assessee started publishing a paper called "Kerala Dhwani".
This paper was started in 1959.
While the assessee was in America, he took his Ph.D. degree.
For the assessment year 1960 61, the assessee filed a return disclosing a loss of Rs. 1,59,894 under the head 'business '.
The assessee, as mentioned hereinbefore, was publishing Malayalam daily newspaper called 'Kerala Dhwani '.
While t scrutinising the accounts, the Income tax Officer found in the ledger folio in the name of the assessee amounts totalling Rs. 2,57,138 credited in ' his account.
The assessee was asked to explain these credits and he represented that most of the amounts were received by the assessee as donations from U.S.A. through an organisation known as Indian Christian Crusade, U.S.A. The Income tax Officer found that the names and other details of persons who had donated the amounts were not available.
He also found that such amounts amounted in all Rs. 2,90,220.
The Income tax Officer had stated that in the absence of definite information regarding the individuals who has made the donations, it had to be presumed that the amounts had been given by the Indian Christian Crusade, U.S.A. to the assessee.
The assessee 's case before the Income tax Officer was that the amounts received by the assessee were purely personal gifts and testimonials which were given because of the esteem and regard for the personal qualities of the assessee and that the payments were purely voluntary.
The Income tax Officer rejected the contention.
He held: 941 (i) The payment of donations started simultaneously with the publication of the daily newspaper Kerala Dhwani and the donations were continued during the period the publication continued.
(ii) The donations were regular and continued for the next year also.
(iii) There was nothing to show that the amounts were given on account of the personal qualities of the assessee.
(iv) The donations were being made regularly throughout the year and these were evidently given as aid to the running of the newspaper which was the business carried on by the assessee.
(v) The Indian Christian Crusade, U.S.A. which was paying money to the assessee was an enterprise in India established for the furtherence of ideals and objectives similar to theirs.
For aforesaid reasons the Income tax Officer held that the so called donations were payments by way of remuneration for the work done by the assessee in connection with the spreading, in India, of the ideals of the Indian Christian Crusade, U.S.A. The Income tax Officer came to the conclusion that the amounts paid to the assessee were connected with the business of the assessee and were liable to be taxed as the business income of the assessee.
He, therefore, brought to tax Rs. 2,90,220 which had been received during the assessment year.
For the next assessment year, the assessee had received similar amounts totalling to Rs. 3,63,750 through the Indian Christian Crusade, U.S.A.
For the reasons given in the order of the previous year, the Income tax Officer treated this amount also as the business income for the assessment year 1961 62 and brought the same to tax.
The assessee filed appeals in respect of both the years and the Appellate Assistant Commissioner disposed of the appeals by different orders delivered on the same date.
He discussed all the contentions raised by the assessee in his appellate orders.
The main contention raised by the assessee before the Appellate Assistant Commissioner was that the various amounts credited in his bank account and in his personal account in the business represented gifts made by personal friends in the U.S.A., that the amounts were collected by the Indian Christian Crusade and forwarded to India to the assessee.
The Appellate Assistant Commissioner rejecting these contentions of the assessee found that the assessee was a journalist and it was his avocation or vocation to propagate certain ideas and ideals.
He was closely associated with the missionary work carried on by the Indian Christian Crusade in America and he was propagating the ideals of 942 Indian Christian Crusade, America in India because of his close relationship with that origination as mentioned hereinbefore.
The assessee during his stay in U.S.A. and after his return was engaged in a movement for the spread of religion and fighting the forces of atheism.
According to the assessee, his friends in America and those Who believed in the cause which he sponsored were sending him donations for helping tile movement and the amounts that were handed over to or were collected by the Indian Christian Crusade, U.S.A. were remitted to him.
In further appeal the Tribunal held that the amounts did not represent remuneration or payments for services rendered.
The tribunal further held that the receipts were clearly causal and non recurring and aid not arise in the course of the exercise of any vocation.
Then the aforesaid two questions were referred to the High Court under Section 66 (1) of the Indian Income tax Act, 1922.
The High Court held that the receipts of casual and non recurring nature would not be included in the total income of a person.
But if there were receipts arising from the exercise of a vocation, these would be included in the total income, even if these were of casual or non recurring nature or voluntary and the receipts resulting from such payments would be outside Section 4(3)(vii) of the Income tax Act, 1922 (hereinafter referred to as the ( 'Act ').
Relying on the findings of the Tribunal, the High Court held that the assessee was very actively, fully occupied with the activities connected with achieving the objects of straightening faith in God and fighting against atheism and was occupied with this affair.
The payer which he published for this purpose was a daily coming out with views in support of this mission.
Teaching and propagating religion could be an occupation.
It was not necessary that its object should be to earn a livelihood.
Anything in which a person was engaged systematically could be an occupation or vocation.
The next question would be whether receipts could be said to arise from such occupation or vocation.
There was link between the activity of the assessee and the payments, and that the payments were made by those who held similar views as those of the assessee and who were very much interested in the propagation and the acceptance of those views by the general public.
The payments were made for the purpose of helping the assessee to run the paper which was the mouth piece or medium through which the ideas were to be spread.
The 943 connection between the activity of the assessee and the donations was thus intimate.
lt arose out of the vocation or the occupation carried on by the assessee.
Therefore, the receipts arose from the exercise of an occupation by the assessee.
The high Court also considered whether such payments were excluded by Section 4(3)(vii) of the Act.
Section 4 of the Act made the total income of the previous year of any person assessable to tax and sub section (3) specified certain incomes which should not be included in the total income of the person.
Sub section (vii) of Section 4(3) was in the following terms: "(vii) any receipts not being capital gains chargeable according to the provisions of section 12B and not being receipts arising from business or the exercise of a profession, vocation or occupation, which are of a casual and non recurring nature or are not by way of addition to the remuneration of an employee.
As the section made it clear, in order to be entitled to exemption, the receipts must be of income character first.
In the instant case, there is no doubt that if a sum of money is received for the purpose in pursuance of an avocation or vocation, it arose out of this vocation or profession.
If this is so, then this was income under the Act.
Such income could only be excluded if it was specifically excluded by any provision of the Act.
The High Court held, and in our opinion rightly, that in view of the facts and circumstances of this case as found by the Tribunal, these amounts were not excluded under Section 4(3)(vii) of the Act.
The position was thus, these amounts were received by the assessee in the course of his avocation or vocation and were given to him for the purpose of the same.
These were therefore incomes which were not also of a casual or non recurring nature nor were these capital gains under Section 12B of the Act.
If that was the position, then, in our opinion, the amounts were clearly taxable as held by the Income tax Officer and by the High Court.
Several aspects of the question were placed before us on a large canvass namely that the High Court had gone into facts of the first time over ruling the findings of the fact of the Tribunal without there being a question to that effect and also there was no finding that the receipts were of income character.
In support of these contentions, several decisions of this Court were referred before us, Inter alia, Parimisetti Seetharamma vs 944 Commissioner of Income Tax, Andhra Pradesh.
, Reliance was placed on the observations appearing at pages 536, 537 and 538 of the said report.
It was urged that the burden of proof was wrongly placed by the High Court and on the facts, that the two circumstances relied on by the High Court did not establish that certain money was given to the assessee as remuneration for services and as such it could not be held that the person concerned was assessable to tax.
It was urged that the High Court wrongly placed the burden of proof upon the assessee.
But on the facts and in the circumstance of this case, the conclusion recorded by the High Court in the instant case was borne out on the facts on record.
The observations of this Court referred to above cannot be of much assistance to the assessee.
The case which is most apposite to the facts of the instant case is a decision of this Court in the case of P. Krishna Menon vs Commissioner of Income Tax, Mysore, Travancore Cochin and Coorg.
Bangalore.
, There after retirement from Government service, the appellant therein was spending his time in studying and teaching Vedanta philosophy.
L, who was one of his disciples, used to come from London at regular intervals to Trivendrum where the appellant resided, and stay there for a few months at a time and attend his discourses, and so received instructions in Vedanta and had the benefits of his teachings.
L transferred his entire balance standing to this credit in his on account at Bombay, amounting to more that Rs. 2 lakhs, to the account of the appellant opened in the letter 's name in the same bank at Bombay.
Thereafter, from time to time, L put in further sums into the appellant 's account in Bombay.
The question was whether the receipts from L. constituted the appellants income taxable under the Travancore Income Tax Act, 1121 (Malayalam Era) which was identical with the Indian Income Tax Act, 1922.
It was held that teaching was a vocation, if not a profession, and teaching Vedanta was just as much teaching as any other teaching and therefore a vocation; that in order that an activity might be called a vocation it was not necessary to show that it was an organised activity and that it was indulged with a motive of making profit; it was well established that it was not the motive of a person doing an act which decided whether the act done by him was the carrying on of a business, profession or vocation; and if any business, profession or vocation in fact produced an income, that was taxable income and none the less so because it was carried on without the motive of producing an income; that teaching of Vendetta by the appellant in that case was the 945 carrying on of a vocation by him and that the imparting of the teaching was the causa causans of the making of the gifts by L, and it was impossible to hold that the payments to the appellant had not been made in consideration of the teaching imparted by him, and that, therefore, the payments were income arising from the vocation of the appellants that the payments made by L were income arising from a vocation.
These were not casual or non recurring receipts and no question of exemption under Section 4(3)(vii) of the Act arose.
It was further observed that in order that a payment might be exempted under Section 4(3)(vii) as a casual and non recurring receipt, it had to be shown that it did not arise from the exercise of a vocation.
In the instant case before us, identical is the position.
The assessee carried on a vocation of preaching against atheism.
In the course of such vocation and for the purpose of the same he received the amounts in question as donation for the furtherance of the objects of his vocation.
The receipts arose to the assessee for the carrying on of the vocation by the assessee, and these were not casual and non recurring.
These were taxable.
These facts were found by the Income tax Officer.
These facts not in so many terms but essentially found by the Appellate Assistant Commissioner and were reiterated by the Tribunal and the High Court accepted these findings of facts and answered the question accordingly.
Reliance was also placed on the decisions of the Gujarat High Court in the case of the Acharya D.V. Pande vs Commissioner of Income tax, Gujarat., , and Commissioner of Income tax, Gujarat vs Shri Girdharram Hariram Bhagat, , decisions of the Bombay High Court in the Case of Maharaj Shri Govindlalji Ranchhodlalji vs Commissioner of Income tax, Ahmedabad, , and H.H. Maharani Shri Vijaykuverba Shed of Morvi and Another vs Commissioner of Income tax, Bombay City II, , decision of the Madras High Court in the case of S.A. Ramakrishnan vs Commissioner of Income tax, Madras, , and decision of the Delhi high Court in the case of Siddhartha Publications (P) Ltd. vs Commissioner of Income tax, Delhi, , dealing with certain facts and circumstances where income could be said be taxable.
From all these decisions, two facts emerge.
The burden is on the revenue to establish that the receipt is of a revenue character.
Once receipt is found to be of a revenue character 946 whether it comes under exemption or not, it is for the assessee to establish.
Facts must be found by the Tribunal and the High Court must proceed on the basis of the facts found by the Tribunal.
The High Court cannot afresh go to the facts over ruling the facts found by the Tribunal unless there is a question to that effect challenging the facts found by the Tribunal.
These propositions are well settled and in this case in the decision of the High Court, these principles, in our opinion, have not been breached.
It has been established that the assessee was carrying on a vocation, the vocation preaching of Christian Gospel and helping anti atheism was the vocation of his life.
He was running a newspaper in aid of that.
The donations received from America were to help him for the said purpose.
They arose out of his carrying on and continued so long as he carried on this avocation or vocation.
These receipts therefore arose out of his vocation.
These were therefore his income.
In the facts these were not exempt under Section 4(3)(vii) of the Act.
In the premises these were taxable.
Numerous decisions were referred to us on the question as to how far the High Court could interfere with the facts found by the Tribunal.
Reliance was placed on the decisions of this Court in the case Karnani Properties Ltd. vs Commissioner of Income tax, West Bengal, , Aluminium Corporation of India Ltd. vs Commissioner of Income tax, West Bengal, , Anil Kumar Roy Chowdhury and Others vs Commissioner of Income tax, West Bengal II, , Commissioner of Income tax, West Bengal III vs Kamal Singh Rampuria, , Commissioner of Income tax, West Bengal III vs Imperial Chemical Industries (India) (P) Ltd., , and the decision of the Bombay High Court in the case of Commissioner of Income tax, Bombay City II vs Deviprasad Khandelwal and Co. Ltd., , and also the decision of the Madras High Court in the case of Commissioner of Income tax vs P.S. Chelladurai.
, 145 I.T.R. 139.
We have set out the findings of the Tribunal and considered the findings of the Tribunal as well as the judgment of the High Court.
There has not been any unwarranted interference by the High Court with the facts found by the Tribunal.
Basic facts have been found by the Tribunal.
On the question where income could be said to arise, it may be relevant to refer to Strong & Co. of Romsey, Limited vs Woodifield (Surveyor of Taxes), ; There a brewery 947 company owned an inn which was carried on by the manager as part of their business.
A customer sleeping in the inn was injured by the fall of a chimney, and recovered damages and costs against the company for the injury, which was owing to the negligence of the company 's servants.
The question was whether the amounts paid as damages could be claimed as a deduction from the business of s carrying on the activities of the inn keeper.
The Lord Chancellor observed at page 452 of the report as follows: "I think only such losses can be deducted as are connected with in the sense that they are really incidental to the trade itself.
They cannot be deducted if they are mainly incidental to some other vocation or fall on the trader in some character other than that of trader.
The nature of the trade is to be considered.
To give an illustration, losses sustained by a railway company in compensating passengers for accidents in travelling might be deducted.
On the other hand, if a man kept a grocer 's shop, for keeping which a house is necessary, and one of the window shutters fell upon and injured a man walking in the street, the loss arising thereby to the grocer ought not be deducted.
Many cases might be put near the line, and no degree of ingenuity can frame a formula so precise and comprehensive as to solve at sight all the cases that may arise.
In the case of The Commissioner of Inland Revenue vs E.C. Warnes & Co. Ltd., , at page 231 of the Report, Rowlatt J. observed: "I may shelter myself behind the authority of Lord Loreburn, who, in his judgment in the House of Lords in Strong & Co. vs Woodifield, said that it is impossible to frame any formula which shall describe what is a loss connected with or arising out of a trade.
That statement I adopt, and 1 am not sure that I gain very much by going through a number of analogies; but it seems to me that a penal liability of this kind cannot be regarded as a loss connected with or arising out a trade.
In the instant case there cannot be any doubt that the receipts by the assessee arose out of the avocation of the assessee of propagating views against atheism and preaching Christian Gospel.
948 In view of the facts and circumstances of the case there was a link between the activities of the assessee and the payments received by him and the link was close enough.
In that view of the matter, in our opinion, the High Court was right in answering both the questions referred to it in the negative and in favour of the revenue.
The appeals accordingly fail and are dismissed with costs.
Civil Miscellaneous Petition No. 10046 of 1976 for condonation of delay in filing the additional papers is allowed.
A.P.J. Appeals dismissed.
| In the respondent Company there were two rival Unions of workmen, namely, Karamchari Union and Sharmik Sangh.
The Karamchari Union espoused the demand of the workmen employed by the Company in its Kanpur unit for upward revision of dearness allowance following an award of the Industrial Tribunal Delhi by which the dearness allowance of the workmen employed in the Delhi unit was linked to the consumer price index for Delhi prepared by Labour Bureau, Simla, which substantially increased the dearness allowance of workmen posted at Delhi.
The Company in its attempt to thwart the demand being pursued by the Karamchari Union, entered into a settlement with the Shramik Sangh in respect of dearness allowance and then approached the Labour Commissioner for registering the settlement Failing to obtain the registration, the Company utilaterally enforced the new scheme of dearness allowance linked to all India average consumer price index prepared by Labour Bureau, Simla.
The Karamchari Union did not accept the revised formula and pressed its demand.
The dispute was referred for adjudication.
Before the Tribunal the Company contended: (1) that the settlement would be binding on the members of the Karamchari Union and the dispute does not require adjudication on merits, and (2) that the Company is desirous of linking dearness allowance to all India average consumer price index for 112 working class with base 1960 100 and the Tribunal should avoid accepting the demand of a few workmen.
The tribunal directed that the workmen of the Kanpur unit of the Company should be paid dearness allowance linked to the all India consumer price index (1960 100) for Kanpur Centre compiled by the Labour Bureau, Simla.
On the question of neutralisation, no change was allowed.
Partly allowing the appeal of the workmen, ^ HELD: 1.
The workmen of the Kanpur unit of the Company should be paid the dearness allowance according to all India consumer price index number for Kanpur (1960 100) compiled by Labour Bureau Simla after applying conversion factor also called the linking factor of 4.83.
Their dearness allowance cannot be linked to all India average consumer price index.
[125 B C] 2.
The Tribunal Committed a grave error in accepting collusive settlement as the starting point of the revision.
[122 H] 3, Uniformity, to an uninformed mind, appears to be attractive.
But, sometimes uniformity amongst dissimilar persons becomes counter productive.
Uniformity and equality have to be amongst equals measured by a common denominator.
The implementation of the Constitutional aspiration of `equal pay for equal work ' can be appreciated.
In the matter of basic wages it is a consummation devotedly to be wished.
But when it comes to dearness allowance any attempt at uniformity between workmen in metropolitan areas and in smaller centres would be destructive of the concept of dearness allowance.
[116 G H] Dearness allowance is directly related to the erosion of real wages by constant upward spiraling of the prices of basic necessities and as a sequal to the inflationary input, the fall in the purchasing power of the rupee.
It is a notorious phenomenon hitherto unquestioned that price rise variee from centre to centre, [117 A] Dearness allowance is inextricably intertwined with price rise, it being an attempt to compensate loss in real wages on account of price rise considered as a passing phenomenon by compensation.
That is why it is called variable dearness allowance.
Any uniformity in the matter of dearness allowance may confer a boon on persons employed in smaller centres and those in bigger metropolitan areas would be hard hit.
Dearness allowance by its very form and name has an intimate relation to the prevailing price structure of basic necessities at the centre in which the workman is employed.
[117 B C] Dearness allowance to workmen at a particular place should therefore depend upon the place where the workman is working irrespective of the fact that the industrial undertaking in which the workman is employed is a unit of an industrial enterprises having an all India or inter State operations.
[117 E] 113 4.
In the matter of dearness allowance the Court should lean in favour of adjudication of dispute on the principle of industry cum region because dearness allowance is linked to cost of living index of a particular centre which has a local flavour.
A workman is exposed to the vagaries of the market where he resides and works, even though he may be an employee of a national, multi national or transnational industrial empire.
Therefore.
the region cum industry principle must inform industrial adjudication in the matter of dearness allowance.
In the instant case the Tribunal has overlooked this important principle of industrial adjudication.
[117 G; 120 H; 121 A; 121 C] Dunlop Rubber Co. (India) Ltd. vs Workmen & Ors., ; , referred to.
Remington Rand of India Ltd. vs The Workmen , woolcombers of India Ltd. vs Woolcombers Workers Union & Anr. ; and Greaves Cotton & Co. and Ors.
vs Their Workmen ; and Bengal Chemical and Pharmaceutical Works Ltd. vs Its Workmen ; , followed.
Any attempt of a company introducing uniformity in the matter of dearness allowance linked to the all India average consumer price index prepared by Labour Bureau, Simla would be destructive of the concept of dearness allowance.
Not only unequals will be treated as equals but the former would suffer irreparable harm.
Such an approach would deal a fatal blow to the well recognised principle of industrial adjudication based on region cum industry because there cannot be any uniformity in the dearness allowance of the workmen working in metropolitan areas and the workmen working in smaller areas.
[118 A C] 6.
Where for a certain industrial centre a dearness allowance formula is in vogue and it is linked to some consumer price index number, whenever the base year for consumer price index number is changed, a fresh linkage requires a conversion ratio.
In the absence of a conversion ratio, the whole scheme falls out of gear and becomes unworkable, ineffective and in fact unjust.
In the instant case the conversion ratio of 4.83 in valid and correct and the Tribunal ought to have accepted the same.
[123 D; 124 F] Ahmedabad Mill Owners ' Association etc.
vs The Textile Labour Association, [1966) 1 S.C.R. 382, followed.
In the matter of dearness allowance usually the paying capacity of the employer is examined.
In the instant case, it has not at all been contended that the respondent company cannot bear the additional burden.
[124 G]
|
Special Leave Petition (Civil) Nos.
5228 and 5286 of 1977.
From the Judgment and order dated 8 8 1977 of the Punjab and Haryana High Court in F.A.O. No. 81 and 82 of 1977.
P. P. Malhotra and R. N. Dikshit for the Petitioner.
section K. Gambhir for the Respondent.
The order of the Court was delivered by KRISHNA IYER, J. An explosive escalation of automobile accidents, accounting for more deaths than the most deadly diseases, has become a lethal phenomenon on Indian Roads everywhere.
The jural impact of this tragic development on our legislatures, courts and law enforcing agencies is insufficient, with the result that the poor, who are, by and large, the casualty in most of these cases, suffer losses of life or limb and are deprived of expeditious legal remedies in the shape of reasonably quantified compensation promptly paid and this, even after compulsory motor insurance and nationalisation of insurance business.
The facts of this special leave petitions, which we dismiss by this order, raise two serious issues which constrain us to make a speaking order.
The first deals with legal 696 rights, literacy in the case of automobile accidents and the processual modalities which secure redressal of grievances.
The second relates to the consequences of negligence of counsel which misleads a litigant into delayed pursuit of his remedy.
Medieval roads with treacherous dangers and total disrepair, explosive increase of heavy vehicles often terribly overloaded and without cautionary signals, reckless drivers crazy with speed and tipsy with spirituous potions, non enforcement of traffic regulations designed for safety but offering opportunities for systematised corruption and little else and, as a cumulative effect, mounting highway accidents demand a new dimension to the law of torts through no fault liability and processual celerity and simplicity in compensation claims cases.
Social justice, the command of the Constitution is being violated by the State itself by neglecting road repairs, ignoring deadly overloads and contesting liability after nationalising the bulk of bus transport and the whole of general insurance business.
The jurisprudence of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.
In the present case, a doctor and his brother riding a motor cycle were hit, by a jeep driver and both were killed.
The fatal event occurred in November 1971 but the Motor Accident Claims Tribunal delivered judgment five years later awarding sums of Rs. 80,000/ and Rs. 73,500/ to the two sets of claimants.
The delay of five years in such cases is a terrible commentary on the judicial process.
If only no fault liability, automatic reporting by the police who investigate the accident in a statutory proforma signed by the claimants and forward to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court fees and the sophisticated rules of evidence and burden of proof were introduced easy and inexpensive if the State has the will to help the poor who mostly die in such accidents law 's delays in this compassionate jurisdiction can be banished.
Social justice in action is the measure of the State 's constitutional sensitivity.
Anyway, we have made these observation hopefully to help focus the attention of the Union and the States.
The nationalised insurance company appealed to the High Court against the award.
We have no doubt that the finding on both the 697 culpability and the quantum as rendered by the trial court are correct.
But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under section 5 of the Limitation Act.
The Accident Claims Tribunal pronounced its award on September, 15, 1976, after making the necessary computations and deductions.
The appeal had to be filed on or before January 19, 1977 but was actually filed 30 days later.
Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation.
He had intimated the parties accordingly with the result that the petitioner was misled into instituting appeal late.
The High Court took the view that the lawyer 's ignorance about the law was no ground for condonation of delay.
Reliance was placed on some decisions of the Punjab High Court and there was reference also to a ruling of the Supreme Court in ; The conclusion was couched in these words: "The Assistant Divisional Manager of the Company appellant is not an illiterate or so ignorant person who could not calculate the period of limitation.
Such like appeals are filed by such companies daily.
The facts of this case clearly show, as observed earlier, that the mistake is not bonafide and the appellant has failed to show sufficient cause to condone the delay.
" We are not able to agree with this reasoning.
A company relies on its Legal Adviser and the Manager 's expertise is in company management and not in law.
There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel.
Of course, if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable.
The correct legal position has been explained with reference to the Supreme Court decision in a judgment of one of us in AIR 1971 Ker. 211: "The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground.
It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose such as laches 698 on the part of the litigant or an attempt to save limitation in an underhand way.
The High Court unfortunately never considered the matter from this angle.
If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation." "The High Court took the view that Mr. Raizada being an Advocate of 34 years ' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under Section 39(1) of the Punjab Courts Act and therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under Section 5 of the Limitation Act.
The Supreme Court upset this approach." "I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are some times wrong.
An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice.
The court must of course, see whether in such cases there is any taint of mala fides or element of recklessness or ruse.
If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered.
The State has not acted improperly in relying on its legal advisers.
" We have clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently.
If Legal Adviser 's opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise.
Indeed Government, a large litigant in this country, may find itself in difficulty.
That is the reason why we have chosen to explain at this length the application of section 5 vis a vis counsel 's mistake.
This does not automatically secure a visa for the petitioner into this Court under Article 136.
There must be manifest injustice or gross misappreciation or perversity in factual findings.
We have 699 examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner.
He has hardly convinced us that the merits of the case call for any intervention at all.
In this view we are constrained to dismiss the Special Leave Petitions now that we have expressed ourselves or both the points dealt with above.
S.R. Petitions dismissed.
| The respondent company who was a manufacturer of air compressors and garage equipment had its factory at Faridabad (in the State of Haryana) and its head office in Delhi (Union Territory of Delhi).
The head office drew the production programme and advised the factory to manufacture the goods in accordance therewith.
After the goods were so manufactured in the factory they were collected by the head office and brought to Delhi and despatched to various customers whether outside Delhi or in Delhi.
The price of goods was received at the head office.
In other words excepting the manufacture of goods at the factory all other activities, were carried out from the head office in Delhi.
In respect of sale of goods manufactured at Faridabad the respondent company filed sales tax returns with the sales tax authorities at Delhi on the ground that the sales were effected from Delhi by the head office and that they were intra state sales within the territory of Delhi and accordingly paid sales tax at Delhi.
In November, 1965, however, the sales tax authorities of Haryana demanded payment of sales tax under the East Punjab General Sales Tax, Act, 1948 for the period commencing from April 1, 1961 and ending with the year 1964 65 pointing out that the sales effected were inter state sales liable to be assessed by them under the .
In its writ petition the respondent company alleged that since all its activities were being carried on by or through the head office in Delhi and no sales were effected by or from the factory at Faridabad sales tax was paid by it in Delhi and since the sales tax authorities in Haryana were demanding payment of Central Sales Tax in respect of the same transaction the High Court might resolve the controversy.
The High Court held that the sales fell under section 3(a) of the and were liable to be assessed to inter state sales tax by the Sales Tax Authorities at Faridabad and accordingly ordered that the sales tax paid by the respondent in Delhi be transferred to the Sales Tax Authorities at Faridabad.
On appeal the Union of India contended that since the situs of sale was Delhi Sales Tax was payable in Delhi.
Dismissing the appeal, 454 ^ HELD: 1 (a) The High Court was right in holding that the sales were inter state sales and that the turnover on sales was assessable to sales tax under the and that the amounts of sales tax wrongly paid in Delhi be transferred to the Sales Tax Authorities at Faridabad.
[462 A B] (b) In order that a sale may be regarded as an inter state sale it is immaterial whether the property in the goods passes in one State or another.
The question as regards the nature of the sale, that is, whether it is an inter State sale or an intra State sale does not depend upon the circumstance as to in which State the property in the goods passes.
It may pass in either and yet the sale can be an inter State sale.
[461 G H, 462 A] In the instant case the contracts of sales were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts.
This, therefore, is not that type of case in which goods are manufactured in the general course of business for being sold as and when offers are received by the manufacturer for their purchase.
Contracts of sales were finalised in the instant case at Delhi and specific goods were manufactured at Faridabad in pursuance of those contracts.
These were "future goods" within the meaning of section 2(6) of the .
After the goods were manufactured to agreed specifications, they were despatched to the head office at Delhi for being forwarded to the respective customers at whose instance and pursuant to the contracts with whom the goods were manufactured.
The despatch of goods of Delhi was but a convenient made of securing the performance of contracts made at Delhi.
Thus the movement of goods was occasioned from Faridabad to Delhi as a result or incident of the contracts of sale made in Delhi.
[458 H, 459 A D (c) For the purpose of section 3(a) it is not necessary that the contract of sale must itself provide for and cause the movement of goods or that the movement of goods must be occasioned specifically in accordance with the terms of contract of sale.
[459 E] Tata Iron and Steel Co. Ltd., Bombay vs section section Sarkar & Ors., ; ; Central Marketing Co. of India vs State of Mysore, ; State Trading Corporation of India vs State of Mysore, ; Singareni Collieries Co. vs Commissioner of Commercial Taxes, Hyderabad, ; ; K. G. Khosla & Co. vs Dy.
Commr.
of Commercial Taxes; , ; Oil India Ltd. vs The Superintendent of Taxes & Ors., ; ; followed.
Tata Eng. & Locomotive Co. Ltd. vs The Asstt.
Commr.
of Commercial Taxes & Anr.
, ; ; distinguished.
State of Bihar & Anr.
vs Tata Eng. & Locomotive Co. Ltd.; , ; referred to.
|
Civil Appeal No. 477 of 1976.
Appeal by Special Leave from the Judgment and Order dated 11 4 1975 of the Kerala High Court in T.R.C. No. 59 of 1973.
P. A. Francis and N. Sudhakaran for the Appellant.
Exparte against the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
The short question raised in this appeal by special leave is whether the Appellate Tribunal has power under section 39(1) of the Kerala General Sales Tax Act, 1963 to enhance the assessment in the absence of any appeal or cross objections by the Revenue ? The respondent firm (M/s. Vijaya Stores) is a dealer in stationery having its head office at Cochin and branches at Ernakulam and Kottayam.
For the assessment year 1965 66 the respondent firm returned a total turnover of Rs. 25,54,974.58 and a net taxable turn over, after claiming exemptions, of Rs. 12,99,996.49.
The Sales Tax officer rejected the Book results on the basis of certain material gathered from a rough note book detected and seized by the Inspecting officer from the Head office at Cochin; it was found that about 50% of the transactions recorded in that rough note book were not entered in the regular books maintained by the assessee; the Sales Tax officer, therefore, made an addition of 10% (Rs. 45,654.73) to the admitted turnover of the Cochin shop and accordingly completed the assessment by his order dated January 16, 1967.
In an appeal preferred by the respondent firm to the Appellate Assistant Commissioner, the assessee raised a two fold contention that the rejection of accounts was not justified and that the addition made on the basis of the rough note book was excessive and arbitrary.
The Appellate Assistant Commissioner by his order dated November 1, 1968 negatived the first contention and 18 526 SCI/78 540 as regards the second he gave relief to the assessee by reducing and limiting the addition to 5% (Rs. 22,823.00) of the admitted turnover of the Cochin shop.
Against the order of the Appellate Assistant Com missioner the respondent firm preferred a second appeal to the Appellate 'Tribunal challenging the addition of 5% to the taxable turnover.
No appeal nor any cross objections were filed by the Revenue to the Tribunal against the said order of the appellate Assistant Commissioner.
The Appellate Tribunal was of the view that the Sales Tax officer and the Appellate Assistant Commissioner had no reason to make addition at any figure less than Rs. 80,218.22 as was seen from the detected rough note book; the Tribunal, therefore, by invoking the power under section 39(4) of the Act issued notice to the assessee to show cause against the proposed enhancement of the turnover and after hearing the objections of the assessee by its order dated May 10, 1973 directed an addition of a sum of Rs. 80,218.22 to the taxable turnover.
The respondent firm preferred a Tax Revision Petition (being T.R.C. 59 of 1973) to the Kerala High Court contesting that the Tribunal had no jurisdiction or power to enhance the assessment in the absence of an appeal or cross objections by the Department and prayed for quashing of the order.
The Kerala High Court by its judgment and order dated April 11,1975 accepted the contention of the respondent firm and set aside the impugned order of the Tribunal and remanded the case for hearing the appeal of the assessee afresh in accordance with law and in the light of what it had said in its judgment; in doing so the High Court relied upon two decisions of the Bombay High Court in Motor Union Insurance Co., Ltd. vs Commissioner of income Tax, Bombay(i) and New India Life Assurance Co. Ltd. vs Commissioner of Income Tax, Excess Profits Tax, Bombay City(2).
The State of Kerala has come up in appeal to this Court.
Counsel for the appellant raised two contentions in support of the appeal.
He first contended that on a true construction of section 39(4) of the Act the Appellate Tribunal should be regarded as possessing the power to enhance the assessment in the absence of any appeal or cross objections by the Department against the Appellate Assistant Com missioner 's order and that the only requirement before making such enhancement was to give a reasonable opportunity of being heard against the proposed enhancement which the Appellate Tribunal had done in this case; secondly, he contended that section 39(4) of the Kerala General Sales Tax Act, 1963 was not in pari materia with section 33(4) of the Indian Income Tax Act, 1922, and, therefore, the High Court ought not to have relied upon the decisions of the Bombay High Court (1) (2) [1957] 31 l.
T.R. 844.
541 rendered under section 33(4) of the Indian Income Tax Act, 1922.
He A also pressed the contrary view taken by the Orissa High Court in the case of Commissioner of Sales Tax, Orissa vs Chunilal Parameshwar Lal(l), for our acceptance.
For the reasons which we shall presently indicate it is not possible to accept either of these contentions urged by counsel for the appellant.
B The question raised before us really turns upon the correct interpretation to be placed on section 39(4) of the Act, but sub sections (1), (2), (3) and (4) of section 39 are material for our purposes which run thus: "39.
Appeal to the Appellate Tribunal.
(1) Any officer empowered by the Government in this behalf or any other person objecting to an order passed by the Appellate Assistant Commissioner under sub section (3) of section 34 and any person objecting to an order passed by the Deputy Commissioner under subsection (1) of section 35, and any person objecting to an order passed by the inspecting Assistant Commissioner under clause (c) of sub section (4) of section 28 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Tribunal; Provided that the Appellate 'Tribunal may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause t`or not presenting the appeal within the said period.
(2) The officer authorised under sub section (1) or the person against whom an appeal has been preferred, as the case may be on receipt of notice that an appeal against the order of the Appellate Assistant Commissioner has been preferred under sub section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memo random of cross objections, verified in the prescribed manner against any part of the appellate Assistant Commissioner, and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub section ( 1 ) .
[1961] 12 S.T.C. 677.
19 526 SCI/78 542 (3) The appeal or the memorandum of cross objections shall be in the prescribed form and shall be verified in the prescribed manner, and, in the case of an appeal preferred by any person other than an officer em powered by the Government under sub section (1), it shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed.
(4) In disposing of an appeal, the Appellate Tribunal may, after giving the parties a reasonable opportunity of being head either in person or by a representative.
(a) in the case of an order of assessment or penalty.
(i) confirm, reduce, enhance or annul the assessment or penalty or both; (ii) set aside the assessment and direct the asses sing authority to make a fresh assessment after such further enquiry as may be directed; or (iii)pass such other orders as it may think fit; or (b) in the case of any other order, confirm, cancel or vary such order." Considerable emphasis was laid by counsel for 'the appellant upon sub s.(4) which indicates what things the Appellate Tribunal may do while disposing of an appeal and in particular it was pointed out that under 'sub s.(4)(a)(i) the Appellate Tribunal has been given power 'to enhance the assessment" while disposing of an appeal against an order of assessment after giving the party a reasonable opportunity of being heard and it was urged that such power could be exercised even when the appeal against the Appellate Assistant Commissioner 's assessment order had been preferred by the assessee and not by the Department.
To place such a construction on sub section
(4)(a)(i) would amount to ignoring the scheme of section 39.
Sub section
(1) provides for an appeal being preferred against an assessment order passed by the Appellate Assistant Commissioner under section 34(3) either by the assessee or by the Department through an officer empowered by the Government in that behalf.
Further, sub 3. (2) provides for filling of cross objections by a party, against whom an appeal has been preferred, notwithstanding that he has not himself appealed against the decision or any part thereof and such cross objections are to be disposed of by Appellate Tribunal as if it were an appeal.
Then comes sub section
(4) which enumerates the various powers conferred upon 543 the Appellate Tribunal while disposing of such appeals (including cross objections) and the power conferred upon the Appellate Tribunal under section 4(a) (i) is "to confirm, reduce, enhance or annul the assessment"; the power to enhance the assessment must be appropriately read as relatable to an appeal or cross objections filed by the Department.
The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it.
and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in sub s.(4)(a)(i) above.
In other words, in the absence of an appeal or cross objections by the Department against the Appellate Assistant Commissioner 's order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment.
Further, to accept the construction placed by the counsel for the appellant on sub section
(4)(a)(i) would be really rendering sub section
(2) of section 39 otiose, for if in an appeal preferred by the assessee against the Appellate Assistant Commissioner 's order the tribunal would have the power to enhance the assessment, a provision for cross objections by the Department was really unnecessary.
Having regard to the entire scheme of section 39, therefore, it is clear that on a true and proper construction of sub section
(4) (a) (i) of section 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross objections by the Department.
It is true that the two Bombay decisions reported in and (supra) on which the High Court has relied `have been rendered in relation to section 33(4) of Indian Income Tax Act, 1922 but in our view the said provisions of Income Tax Act is in pari materia with the provision of s.39(4) of the Kerala General Sales Tax Act, 1963.
Moreover, the Bombay High Court has pointed out in those decisions that section 33(4) merely enacted what was the elementary principle to be found in Civil Procedure Code that the respondent who has neither preferred his own appeal nor filed cross objections in the appeal preferred by the appellant, must be deemed to be satisfied with the decision of the lower authority and he will not be entitled to seek relief against a rival party in an appeal preferred by the latter.
In the first mentioned case the elementary principle is stated at page 282 of the report thus: "Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him.
If the other side has any grievance, he has a right to file a cross appeal 544 or cross objections.
But if no such thing is done, the other party, in law, is deemed to be satisfied with the decision.
He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in his favour.
" As regards the decision of the Orissa High Court in Commissioner of Sales Tax, Orissa vs Chunnilal Parmeshwar Lal (supra), the same cannot avail the appellant for the decision in that case was rendered on a concession made by the assessee 's counsel.
In the result we are clearly of the opinion that the High Court was right in the view it took and the appeal.
therefore, fails and is dismissed.
Since the respondent has not appeared, there is no question of any costs N.V.K. Appeal dismissed.
| The petitioner was detained in Kothibagh sub jail in Srinagar by the order of Jammu and Kashmir Government under the provisions of section 3(1)(a)(i) of the Jammu and Kashmir Preventive Detention Act, 2011, 1102 The petitioner challenged the order of detention on the grounds, inter alia, (i) that it encroached on his fundamental right to life and personal liberty guaranteed to him under article 21 of the Constitution as extended to the State of Jammu and Kashmir, (ii) that it violated his fundamental right guaranteed to him under clause (5) to article 22 of the Constitution as extended to Jammu and Kashmir State inasmuch as the petitioner was not supplied with the grounds on which the order of detention was based.
It was contended that section 8(1) Proviso, of Jammu and Kashmir Preventive Detention Act, 2011, under which the grounds of detention were not supplied to him, was unconstitutional as being inconsistent with articles 21 and 22 of the Constitution and thus void to the extent of that inconsistency in view of the provisions of article 13 of the Constitution.
Held (overruling the contention) that section 8 (1) Proviso is not unconstitutional in view of the provisions of Constitution (Application to Jammu and Kashmir) Order, 1954 which supersedes the Constitution (Jammu and Kashmir) Order, 1950, and of clause (c) which has been added to article 35 of the Constitution.
The effect of the modification of article 35 by the addition of clause (c) thereto is that such of the provisions of the Act as are inconsistent with Part III of the Constitution shall be valid until the expiration of five years from the commencement of the Order.
|
Appeal No. 1360 of 1975.
(From the Judgment and Order dated 12 3 1975 of the Punjab & Haryana High Court in Regular First Appeal No. 315/64).
V.M. Tarkunde, E.C. Agrawala and Miss N. Tarkunde for the, appellant.
Bishan Narain, and Mrs. Urmila Sirur for respondent No. 1.
Hardev Singh and R.S. Sodhi, for Respondent No. 2.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Sardar Gobinder Singh Sibia who was possessed of a large estate died on December 15, 1954 at the age of about 70. 927 He had taken two wives, Gulab Kaur and Dalip Kaur.
The story of his life follows the familiar pattern the pretext of a disagreement with the unwanted wife, special favours for the favourite and jealous rivalries between the children born of the two.
The following pedigree will facilitate a better under standing of the issues involved in me case : Tara Singh Sibia : Ratan Singh : : Gulab Kaur Gobinder Singh Dalip Kaur (Plaintiff) (Died 15 12 1954) pre deceased her husband) (Died 1959) : : : : : Jaswant Kaur . . . . (Appellant) Guraprakash Kaur Gurbachan Sin gh pre deceased his fat her) Joginder Kaur (Died 1971 ) : : Arrit Kaur = Surjit Inder Singh Palvinder Kaur (Respondent1) (Defendant) (Respondent 5) (Died 1968) : : : Gobinder Singh Surinder Singh Gopal Inder Singh (Respondent 2) (Respondent 3) (Respondent 4) After the birth of the appellant Jaswant Kaur, Gulab Kaur started living or as the story goes, was compelled to live with her parents.
Dalip Kaur had given birth to a daughter Guraprakash Kaur and a son Gurbachana Singh.
Gurbachan died during the life time of his father Gobinder Singh, leaving behind his widow Joginder Kaur who died in 1971.
Gurbachan Singh and Joginder Kaur gave birth to two children, a son Surjit Inder Singh and a daughter Palvinder Kaur.
Surjit Inder Singh died in 1968 leaving behind a widow Amrit Kaur and three sons.
On May 22, 1956 which was about a year and a half after the death of Sardar Gobinder Singh, his widow Gulab Kaur filed a suit in forma pauperis claiming maintenance @ Rs. 1000/ per month or in the alternative a one half share in the properties left by her husband.
Her co wife 's grandson Surjit Inder Singh was the defendant to the suit.
He filed his written statement on January 5, 1957 contending that the plaintiff had deserted her husband and that she was neither entitled to maintenance nor to any share in his estate.
On these pleadings the trial court struck issues in the suit on February 1, 1957.
At the end of her evidence on August 17, 1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one half share in her husband 's estate.
The hearing of the suit was adjourned by the learned trial Judge to August 24, for recording defendant 's evi dence.
928 In the meanwhile, on.
August 20, the defendant filed an application asking for permission to produce a will stated to have been made by Sardar Gobinder Singh, on November 26, 1945.
The learned District Judge, Sangrur, who was then seized of the suit rejected that application and refused to allow the defendant to amend his written statement.
That order was, however, set aside in revision by the Punjab.
High Court which directed the trial court to allow the defendant to amend Iris written statement and to produce his father 's alleged will.
On March 8, 1958 the defendant amended his written statement contending that by the will, his father had left almost the entire property to him and that the plaintiff Gulab Kaur was not entitled to any share in the property under the will.
In June, 1958 the plaintiff filed a formal application seeking leave to amend her plaint giving up her claim for maintenance and asking for a one half share in the properties of her deceased husband.
Fresh issues were thereafter framed on the basis of the amended pleadings.
On March 10, 1959 the plaintiff died and her daughter, Jaswant Kaur, who is the appellant before us, was brought on the record as her legal representative.
The suit was tried eventually by the learned Senior Sub Judge, Sangrur, who by his judgment dated June 29, 1964 decreed it.
The learned Judge held that the defendant who set up the will had failed to prove that it was the last will and testament of his grand father Gobinder Singh and alternatively, that even on the assumption that the will was proved, it must be deemed to have been revoked on account of certain dispositions made by the testator after the making of the will.
This alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant, who disputes the will, did not urge that consideration before us.
The revocation of an unpriviledged will is an act only a little less solemn than the making of the will itself and has to comply with statutory require ments contained in section 70 of the Succession Act.
Holding that the defendant had failed to discharge his onus of proving the will, the trial court granted to the plaintiff a decree for a one half share in the properties of her husband.
In doing this, the Court relied on "overwhelm ing documentary evidence" showing that according to the custom by .which the parties were governed, a sonless widow was entitled to a one half share in the estate of her hus band, as an equal sharer with the male progeny born of a co wife.
That the parties were governed in this matter by customary law was "openly conceded" in the trial court, the point of dispute being restricted on this point to 'the question as to what in fact was the custom.
It was common ground before us that if the will goes, the plaintiff will be entitled to a half share in the estate of her husband Gobinder Singh.
Aggrieved by the judgment of the trial court, the de fendant Surjit Inder Singh filed First Appeal No. 315 of 1964 in the High Court of Punjab and Haryana.
During the pendency of the appeal, the defendant died on October 22, 1968 and his widow Amrit Kaur, her three sons, and his sister Palvinder Kaur were brought on the record as his legal representatives.
They are respondents 1 to 5 to this appeal.
By its judgment dated March 12, 1975 the High Court set aside the judgment 929 the trial court, allowed the appeal and dismissed the plaintiff 's suit.
The High Court has held, or appears to have held, that the will was duly established.
Since the will excludes the plaintiff as a sharer in the testator 's estate, the suit had to fail, custom or no custom.
This appeal by special leave is directed against the judgment of the High Court.
The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will.
It is he who set up the will in answer to the plaintiff 's claim in the suit for a one half share in her husband 's estate.
Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it.
In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him.
Accordingly, the defendant ought to have led satis factory evidence to prove the due execution of the will by his grand father Sardar Gobinder Singh.
In cases where the execution of a will is shouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant.
What, generally, is an adver sary proceeding becomes in such cases a matter of the court 's conscience and then the true question which arises for consideration is whether the evidence led by the pro pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator.
It is impossible to reach such satisfication unless the party which sets up the will .offers a 'cogent and convinc ing explanation of the suspicious circumstances surrounding the making of the will.
There is a long line of decisions bearing on the nature and standard of evidence required to prove a will.
Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar vs
B.N. Thirnmajamma & Others.
(1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions : 1.
Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters.
As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
(1) [1959] Supp.
I S.C.R. 426.
930 This aspect introduces an element of solemnity in the deci sion of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
Cases in which the execution of the will is surround ed by suspicious circumstances stand on a different footing.
A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he re ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will.
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disin herited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved.
That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
If a caveator alleges fraud, undue influence, coer cion etc.
in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execu tion ' of the will may raise a doubt as to whether the testa tor was acting of his own free will.
And then it is a part of the initial onus of the propounder to remove all reasona ble doubts in the matter.
We will now set out briefly the provisions of the will which is dated November 26,1945.
The will consists of 9 paragraphs, by the first of which the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala, and Sardar Bahadur Ranjit Singh a contractor of Delhi, as execu tors.
By paragraph 2 the testator bequeathed the whole of his property, movable and immovable, to his grandson Surjit Inder Singh who is the defendant in the present suit.
By paragraph 3 the testator gave to his wife Dalip Kaur a life interest in a house at Simla, called Kenilworth.
The testator provided by paragraph 4 that if the house was later acquired by the Government or was sold by himself Dalip Kaur would be entitled to receive from his estate a sum equal to the compensation fixed in the acquisition proceedings or equal 931 to the sale price.
The amount was to be deposited in ap proved securities, Dalip Kaur being entitled only to the interest thereon.
On her demise, the house or the amount in deposit was to vest absolutely in the defendant.
Para graph 5gave to Dalip Kaur the right of residence in a part of the house.
at Sangrur, paragraph 6 gave to her the right to use during her life time the jewellery and orna ments and paragraph 7 states expressly that she will have no right to alienate any of the properties in which she was given a life interest.
Paragraph 8 provides that Dalip Kaur had the right to live jointly with the defendant but in case there were differences between them, she would be entitled to receive from him an annual sum.
of Rs. 5,000 for her maintenance.
This amount was to constitute a charge on a land at Karmsar, District Lyallpur.
Paragraph 9 of the will recites that the plaintiff Gulab Kaur had given birth to a daughter Jaswant Kaur in 1898, that Jaswant Kaur was married happily in 1913 to Sardar Gurbax Singh Mansahia, that after Jaswant Kaur 's marriage Gulab Kaur started misbehaving and left for her parents ' house, taking jewellery worth about Rs. 50,000 with her.
It is further stated .in paragraph 9 that Gulab Kaur was "leading her life in a way which would not bear mention here" and that therefore she did not de serve to get any allowance at all from the testator 's property.
The defendant was however directed to pay to her a monthly sum of Rs. 50 for her maintenance provided that she lived in a part of the house at Sangrur and her conduct remained worthy of the Sibia family.
Paragraph 9 expressly mentions that Gulab Kaur would have no right to any share in the testator 's property.
The testator, Sardar Gobinder Singh, was a man of property and occupied a high position in society.
By a modest estimate, the property which he disposed of by his will was of the value of rupees ten to fifteen lakhs.
A registered power of attorney (EX. D/2) which he had executed seven months before the will on April 6.
1945 shows that he owned extensive movable and immovable properties, had a bank account in several banks and that various legal pro ceedings to which he was a party were pending in "all the States of British India".
Gobinder Singh describes himself in the power of attorney as a "big biswedar" and says that he had "a large business to attend to".
The evi dence of Kartar Singh, Gurcharan Singh and Teja Singh (P.Ws. 4, 5 and 6) shows that Sardar Gobinder Singh owned over 15000 bighas of land, several houses and several cars in cluding a Rolls Royce.
sardar Ratan Singh, the father of Gobinder Singh, was the President of the Council of Regency .in the erstwhile State of Jind, while Gobinder Singh himself held "distinguished and responsible posts" in Jind such as the Nazim, the Private Secretary to the Mahara ja and a Minister in his government.
It is the will of a man of such affluence and social status which has to be judged in this case.
It is not as if the burden of proof varies with the riches and social pres tige of the testator but habits of life arc prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy have easy access to competent legal advice.
Normally therefore, a genuine will of a propertied man.
well positioned in society too.
does not suffer from 932 the loopholes and infirmities which may understandably beset an humbler testamentary instrument.
Circumstances are too numerous to mention which throw a cloud of suspicion on the making of the will by Gobinder Singh.
The will is alleged to have been made on November 26, 1945 but it did not see the light of day till August 20, 1957.
Being an ambulatory document, it may be granted that there may be no occasion for anyone to know of its existence until the death of the testator on December 15, 1954.
But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 21/2 years after the testator 's death.
The testa tor had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954, no one both ered to go through his papers which would reflect the state and extent of his property.
The explanation of the defend ant that he hit upon the will by chance while going through some papers of his grand father is therefore patently lame and unacceptable.
There is an ominous significance in the date on which the defendant applied for production of the will in the present suit.
By her suit which was filed on May 22, 1956 the plaintiff Gulab Kaur had originally asked for mainte nance ' and in the alternative for a one half share in the estate of her husband.
Under the Punjab customary law by which the parties were governed, the plaintiff, being a sonless widow.
was entitled to an equal share in the proper ty of her husband.
along with the male progeny born from a co wife.
But the customary .law gave to the sonless widow only a limited and not an absolute interest in the estate of her husband.
The , 30 of 1956.came into force on June 17, 1956 which explains why the plaintiff at the end of her evidence on August 17, 1957 expressly gave up her claim for maintenance and restricted her demand in the suit to a one half share in her husband 's estate.
So long as the plaintiff was entitled only to maintenance or to a limited interest in her husband 's property, the defend ant was content to meet that claim by raising pleas like desertion and misconduct The passing of the Hindu Succes sion Act changed the entire complexion of the suit, raising at least a reasonable apprehension ' that on account of the provisions of that Act the plaintiff would become an abso lute owner of a part of her husband 's estate.
By section 8 of the Act, the widow becomes an heir to the husband 's estate on intestate succession, along with other heirs mentioned in Class I of the Schedule.
And by section 14(1), any property possessed by a female Hindu whether acquired before or after the Act becomes her absolute property subject to the provisions of sub section (2) which would have no application in the instant case.
By reason of section 14, the provisions of the Act have generally an overriding effect on custom and usage.
On August 17, 1957 the plaintiff 's evidence was over and the suit was ad journed to August 24 for defendant 's evidence.
In the meanwhile, on August 20, the defendant filed an application stating 933 that he had accidentally discovered a will made by the plaintiffs husband Gobinder Singh and asking for permission to produce that will.
The defendant has not stated why he suddenly thought of examining his grand father 's papers in between the conclusion of the plaintiff 's evidence on the 17th and the 20th of August.
His case is one of a purely providential discovery and neither in the application for production of the will nor in his evidence did he give the haziest details of the discovery.
We are surprised that the High Court should have so readily accepted the story that the defendant stumbled across the will.
The will has been typed out on both sides of a single foolscap paper and is obviously drafted by a lawyer.
No evidence at all has been led as to who drafted the will and who typed it out.
The will uses some trite legal jargon but it does not show where it was executed and contains no description whatsoever of any of the extensive properties bequeathed to the defendant.
The will has been attested by two persons called Dinshaw H.M. Framjee and Pali Ram.
It is intriguing that a person in the position of Sardar Gobinder Singh should choose these two strangers as attesting witnesses to a very solemn and important document.
Dinshaw Framjee was a trader in Simla and Pali Ram was his servant.
Framjee has stated in his evidence that he did not remember where Gobinder Singh used to stay in Simla, that he did not know for how long he was staying in Simla before the attestation of the will, that he was unable to state whether he had met Gobinder Singh after the attestation of the will and that he was unable to give the approximate time of the day when the will was attested forenoon, afternoon or evening.
Framjee was sure about one thing only, that he had not attested the will at night.
He attempted to say that he was on friendly terms with the testator 's family but he was unable to give even the approximate ages of the testator 's son and daughter.
Under the stress of cross examination, he had to admit eventually that he knew nothing about the testator,s family or family affairs.
Pali Ram, the other attesting witness, did ' not remember the date or the year of the execution of the will but said that it was probably executed in 1945.
He did not know the testator and was a total stranger to him.
Whereas Framjee stated that the will was attested in 'his business premises which were on the ground floor, Pali Ram says that Framjee sent for him from the business premises to his residence, which was on the upper floor.
The utter improbability of the testator accosting these two strangers for getting his will attested and the funda mental contradictions in their evidence render it impossible to hold that they attested the will at the instance of the testator as alleged.
A man of importance that the testator was, he could not ever have left the validity of his will to depend on the unpredictable attitude of unknown elements like Framjee and Pali Ram.
Pali Ram claims to have read the will before attesting it.
It iS not known why.
if he knew that the property 934 was bequeathed to the defendent, he did not, at least after the testator 's death, inform the defendant of the existence of the will.
By the will the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala and one Sardar Bahadur Ranjit Singh as executors.
Both of these persons were fortunately available for giving evidence but neither of them was examined in the case.
Normally, executors are not appointed without their consent or at least without a prior consultation with them.
Respondent 1, the defendant 's widow, is the daughter of the executor Ranjit Singh.
The marriage was performed during the testator 's life time and we find it hard to believe that he would not disclose even to Ranjit Singh that he had made a will appointing him as one of the executors and that Ranjit Singh 's son in law, that is to say the testator 's grandson, was the sole legatee under that will.
The will is unnatural and unfair in more than one re spect.
At the time that the will is alleged to have been made, the testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a daughter in law Joginder Kaur, being the widow of the testator 's predeceased son Gurbachan Singh who was also born of Dalip Kaur.
Gurbachan Singh and Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter Palvinder Kaur.
The will contains not even a fleeting reference either to the testator 's daughter or the widowed daughter in law or to the grand daughter Palvinder Kaur.
It is urged that all of these persons were happily placed in life and it was therefore needless for the testator to provide for them.
If that be so, it was usually unnecessary to refer to the appellant Jaswant Kaur who also, it is common ground, has been married happily.
The plaintiff Gulab Kaur has been wholly excluded as an heir of the testator for the supposed reason; that She had brought disgrace to the Sibia family and that her behaviour was such as would not even 'bear mention in the will.
Not only that no evidence was led to show any misconduct on the part of Gulab Kaur but the evidence of Jaswant Kaur (P.W.2) shows that for about 7 or 8 years prior to 1956 Gulab Kaur had lost her eyesight.
One of the issues in the suit namely, issue No. 2, arising from the original pleadings was whether the plaintiff was disentitled to maintenance for the reason that she had deserted her husband.
The judgment of the trial court shows that the defendant led no evidence in support of that issue and that during the course of arguments, the defendant 's counsel did not press the partic ular issue.
The plaintiff on the other hand led evidence in rebuttal and accepting that evidence the trial court rejected the contention that she had deserted her husband.
it seems to us difficult to believe that a person in the position of section Gobinder Singh who was possessed of a large estate, would disinherit so many of his near rela tives including his wife Gulab Kaur and shower his bounty on the grandson, to the exclusion of everyone else.
935 Quite a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the will but the circumstances enumerated above are, tin our opinion, sufficient to discard the will.
The defendant in his evidence has offered no explanation of any of these.
cir cumstances.
He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious circum stance surrounding the execution of the will and of estab lishing that the document which he propounded was the last will and testament of his grand father Gobiner Singh.
Learned counsel for ' the respondents contends that the defendant did not offer any explanation of these suspi cious circumstances because the will was not challenged in the trial court on the ground that its execution was shroud ed in suspicion.
It is impossible to accept this conten tion because even the learned District Judge who had reject ed the defendant 's application for production of the will and the consequent amendment of the written statement had observed in his order dated September 13, 1957 that it was inconceivable that the defendant did not know about the will and that the possibility of :its being forged cannot be excluded.
This itself was sufficient notice to the defendant as to the nature of the burden which he had to discharge.
Counsel for the defendant also contended that the testator must have kept the will a closely guarded secret because if the will was published, Gulab Kaur and her daughter would have created some trouble.
This argument, in the context of the various facts adverted to above, has to be rejected.
The testator might have wished to keep the will a secret from Gulab Kaur and her daughter but it is impossible to appreciate that he would frustrate the very object of making the will by suppressing it from the defend ant and from the executors, one of whom was highly placed and the other of whom is the defendant 's father in law.
Frankly, though with respect, it surprises us that the High Court should have accepted the will as genuine.
It observes: "It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will.
" We could have understood if the High Court were to say that the defendant had given a valid explanation of the suspicious circumstances surrounding the execution of the will.
But to say that there is nothing in the case to excite the court 's suspicion and to accept the will as genuine on that premise is wholly ununderstandable.
The High Court does not refer to a single circumstance out of the many that we have discussed and the operative part of the judgment just recites a few facts mechanically as if there could possibly be no answer to the validity of the will.
The High Court has not referred in its judgment even in passing to the rule as to the burden of proof which applies to testamentary proceedings.
If only it had taken the trouble of looking at the decision of this Court in Iyengar 's case, which is copiously extracted in the judg ment of the Trial Court, it would have realized what its true duty was in the case.
936 For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the trial court.
The appellant will be entitled to recover from the respondents the costs of this Court and of the High Court.
P.H.P. Appeal allowed.
| The respondents, teachers of the Junior vernacular cadre, Punjab, were promoted to the senior vernacular cadre temporarily.
After the expiry of their probationary period, they were not confirmed, but continued to work in the senior cadre and their names were dropped from the junior vernacu lar cadre.
Mean while, other teachers, junior to the re spondents in the junior cadre were offered better opportuni ties of being taken in a "selection grade".
The respondents filed a writ petition in the High Court contending that they were entitled to the opportunity of moving into the selection grade, as they were neither probationers nor confirmed members but were only officiating in the senior cadre while retaining their substantive places and liens in the junior cadre.
The High Court allowed the writ.
Dismissing the appeal the Court.
HELD: The state was unable to substantiate the submis sion that the petitioners respondents became probationers in the senior vernacular cadre.
According to the rules, their lien in the junior vernacular cadre was retained by them, and, it could not be suspended by the mere fact that they were performing the duties of teachers working in the senior vernacular cadre.
[836 D E]
|
Civil Appeal No. 1177 (NCE) of 1986.
From the Judgment and order dated 17.1.1986 of the Allahabad High Court (Election Tribunal) in Election Petition No. 54 of 1985.
R.K. Garg and Ravi Parkash Gupta for the Appellant.
Qamarrudin and Mrs. Qamarrudin for the Respondents.
The Judgment of the Court was delivered by 633 VENKATARAMIAH, J.
This appeal is filed under section 116A of the Representation of the People Act, 195 l (hereinafter referred A to as 'the Act ') by the appellant against the Judgment dated January 17, 1986 of the High Court of Allahabad in Election Petition No. 34 of 1985 dismissing the Election Petition.
The election to the Uttar Pradesh State Legislative Assembly from Constituenc No. 41 Gunnaur, Village Mirzapur, District Baduan took place in early March, 1985.
16 candidates contested at the said election.
Respondent No. I Smt.
Pushpa Devi was declared elected having secured 23006 votes.
The next highest number of votes was secured by Shri Naurangi Singh.
He secured 20735 votes.
The difference between the votes secured by Respondent No. l and the votes secured by Respondent No. 2 was in the order of 227 l votes.
Respondent No. 8, who was working as a teacher in the Babu Ram Singh Intermediate College, Baburala, Baduan was also one of the candidates in the election.
He secured 3606 votes, which were more than the difference between the votes secured by Respondent No., and by Respondent No. 2.
The appellant, who was an elector at the said election, filed the Election Petition, out of which this appeal arises, contending that Respondent No. 8, who was working as a teacher in the Babu Ram Singh Intermediate College, Baburala, Baduan, was holding an office of profit under the State Government and, therefore, the acceptance of his nomination by the Returning officer was illegal.
Since Respondent No. 8 secured 3606 votes, which were higher than the difference between the votes secured by Respondent No. I and the votes secured by Respondent No. 2, the election of Respondent No. I should be considered as having been materially affected by the wrongful acceptance of the nomination paper of Respondent No. 8 and the election of Respondent No. 1 was liable to be set aside.
The Election Petition was contested by Respondent No. 1.
It was pleaded by Respondent No. 1 that the acceptance of the nomination paper of Respondent No. 8 was not illegal since Respondent No. 8 was not holding an office of profit under the State Government and secondly even if the acceptance of the nomination paper of Respondent No. 8 was illegal, the election could not be set aside since the result of the election was not materially affected thereby.
The High Court held that the acceptance of the nomination paper of Respondent No. 8 was not illegal as Respondent No. 8 was not holding an office of profit under the State Government and it further held that even if the acceptance of the nomination paper of Respondent No. 8 was illegal, the appellant had not established that the result of the election of Respondent No. I had been materially affected on the facts and in the H 634 circumstances of the case.
The High Court accordingly dismissed the petition.
Aggrieved by the judgment of the High Court the appellant has filed this appeal.
Since it is possible to dispose of this appeal on the second ground we do not propose to express any opinion in this case on the question whether Respondent No. 8 was, in fact, holding an office of profit under the State Government or not on the date on which the nomination paper was filed or on the date of the election.
We leave the said question open.
In order to decide the second question it is necessary to set out the relevant part of section 100 of the Act which reads thus: "100.
Grounds for declaring election to be void (1) Subject to the provisions of sub section (2) if the High Court is of opinion . . . . . . . . . (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or. . " Section 100 of the Act makes a distinction between the effect of improper rejection of any nomination and the effect of the improper acceptance of any nomination on the election.
If a nomination of any person at an election has been improperly rejected the election of the returned candidate is liable to be set aside without any further proof because it is difficult to visualise the number of votes which the person whose nomination has been rejected would have secured at the election and there is every likelihood of the returned candidate not securing the highest number of votes.
It is for this reason clause (c) of section 100(1) of the Act states that if the High Court is of the opinion that any nomination has been improperly rejected it shall declare the election of the returned candidate to be void.
Sub clause (i) of clause (d) of sub section (1) of section 100 of the Act is, however, worded differently.
It says that if the High Court is of opinion that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of any nomination it 635 shall declare the election of the returned candidate as void.
Sub clause (i) of clause (d) of section 100( I) of the Act requires a petitioner in an election petition to establish two grounds in order to get the election of the returned candidate set aside, namely, (i) that there has been improper acceptance of any nomination; and (ii) that by reason of the entry of the candidate whose nomination has been improperly accepted into the contest the result of the election insofar as the returned candidate is concerned has been materially affected.
The reason for making a distinction between a case falling under clause (c) of section 100(1) of the Act and a case falling under sub clause (i) of clause (d) of section 100( I) of the Act can be explained with reference to a hypothetical case.
Let us assume that the returned candidate has secured at an election 30,000 votes and 20,000 votes have been secured by a candidate who has secured the next highest number of votes.
We shall assume that a third candidate, whose nomination paper had been improperly accepted has secured just 1000 votes.
In this case even if it is held while deciding an election petition that the nomination of the third candidate has been improperly accepted, there is no justification to set aside the election of the successful candidate because even if all the votes secured by the third candidate are added to the candidate who has secured the next highest number of votes he would be a person who has secured 21000 votes and the successful candidate would still be a person who has secured the highest number of votes at the election.
In this hypothetical case it has to be held that the result of the election has not been materially affected at all.
Such election petition has necessarily to be rejected.
This Court was called upon to decide a case similar to the present one in Vashist Narain Sharma vs Dev Chandra and others.
; In that case the returned candidate Vashist Narain Sharma had secured 12868 votes and Vireshwar Nath Rai secured the next highest number of votes, i.e.,10,996.
The difference in the number of votes secured by these two candidates was 1872.
Another candidate by name Dudh Nath at the election, whose validity was in issue in that case, had secured 1983 votes.
There were also two other candidates in the field.
One of the grounds in the election petition, out of which the above case arose, was that the election of the returned candidate was liable to be set aside since the nomination paper of Dudh Nath had been improperly accepted by the Election Commissioner.
The Court in that case held that the burden of proving that the result of the election had been materially affected on account of the improper acceptance of a nomination was on the petitioner and that even if there was wrongful acceptance of the nomination having regard to the number of votes secured by the several candidates it was not possible to hold that the 636 result of the election had been materially affected.
In Samant N. Balakrishna etc.
vs George Fernandez and Ors etc.
; , section 100( l)(d)(i)) of the Act again arose for consideration.
In that case this Court commented at pages 643 644 on the decision in Vashist Narain Sharma 's case (supra) thus: "Mr. Chari relies upon the rulings of this Court where it has been laid down how the burden of proving the effect on the election must be discharged.
He referred to the case reported in Vashist Narain Sharma vs Dev Chandra and Surendra Nath Khosla vs Dilip Singh and the later rulings of this Court in which Vashist Narain 's case has been fol.
lowed and applied.
In our opinion the matter cannot be considered on possibility.
Vashist Narain 's case insists on proof.
If the margin of votes were small something might be made of the points mentioned by Mr. Jethmalani.
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.
There is no room, there fore, for a reasonably judicial guess.
The law requires proof.
How far that proof should go or what it should contain is not provided by the Legislature.
In Vashist 's case and in Inayatullah vs Diwanchand Mahajan, the provision was held to prescribe an impossible burden.
The law has however remained as before.
we are bound by the rulings of this Court and must say that the burden has not been successfully discharged.
We cannot overlook the rulings of this Court and follow the English rulings cited to us.
" The very same question was considered by this Court in Chhedi Ram vs Jhilmit Ram and others, by a bench of which one of us (Venkataramiah, J.) was a member.
The judgment in that case was delivered by Chinnappa Reddy, J.
In that case the returned candidate Jhilmit Ram had secured 17, 822 votes and Chhedi Ram, the runner up had secured 17449 votes.
Thus the difference between the successful candidate and the candidate who secured next highest votes was 373 votes.
There were four other candidates, of whom Moti Ram secured 6710 votes.
Chhedi Ram challenged the election of Jhilmit Ram on the ground that Moti Ram was a Kahar by caste, not entitled to seek election from the reserved constituency, i.e., his nomination had been improperly accepted and the result of election was materially affected.
The High Court found that Moti Ram was a Kahar by caste 637 and not a member of the scheduled Castes.
Having arrived at the conclusion that Moti Ram 's nomination had been accepted improperly, the High Court was not prepared to set aside the election of Jhilmit Ram as it took the view that the result of the election had not been shown to have been affected in view of the improper acceptance of the nomination of Moti Ram.
The election petition in that case was, therefore, dismissed.
Chhedi Ram then preferred an appeal to this Court against the judgment of the High Court.
This Court allowed the appeal.
In the course of the judgment Chinnappa Reddy, J. Observed thus "2.
We are afraid the appeal has to be allowed.
Under section l00(1)(d) of the Representation of the People Act, 195 1, the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination.
True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election.
The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself.
On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the candidate who got the next highest number of votes.
In both these situations, the answers are obvious.
The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a large number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes.
The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only.
In this situation, the answer to the question whether the result of the 638 election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate.
If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude that the result of the election has been materially affected.
But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportinately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved.
Under the Indian Evidence Act, a fact is said to he proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact is not proved.
In the present case, the candidate whose nomination was improperly accepted had obtained 67 10 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes.
Not merely that.
Th number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number 639 Of votes secured by the successful candidate it was a little over one third.
Surely, in that situation, the result of the election may safely be said to have been affected.
" In the case before us Respondent No. I had secured 23006 votes and Respondent No. 2 had secured 20735 votes.
The margin thus was of 22371 votes.
Respondent No. 8, the validity of whose nomination was questioned, had secured 3606 votes.
It is no doubt true that if we assume that all the 3606 votes secured by Respondent No. 8 would have gone to Respondent No. 2, Respondent No. 2 would have been the successful candidate.
at the election.
Having regard to the facts of this case we feel that it is not possible to hold that the appellant in this appeal has established that the result of the election of the returned candidate had been materially affected because the difference between the votes secured by Respondent No. 1 and the votes secured by Respondent No. 2 was 2272 votes.
Respondent No. 8 had secured only about 1 7th of the number of votes polled by the Respondent No. l and there were 15 candidates (excluding respondent No. 8) contesting the election.
It is not possible to reach a finding in this case by making a judicial guess that all the 3606 voters who had voted in favour of Respondent No. 8 would have cast their votes in favour of Respondent No. 2 alone.
Even if about 1350 of them had cast their votes in favour of any of the other 14 candidates (including the returned candidate) Respondent No. 2 could not have become the candidate who had secured the highest number of votes at the election.
At this stage it is relevant to refer to the observation of Gulam Hasan, J. In Vashist Narain Sharma 's, case (supra) which run thus: "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected.
That is a matter which has to be proved and the onus of proving it lies upon the petitioner.
It will not do merely to say that all or majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case of confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him H 640 by section 100(1)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
" In the case before us we are of the view that the High Court was right in observing that the appellant or any other party had not placed satisfactory evidence to reach the conclusion that all or a sufficient number of the wasted votes which had been cast in favour of Respondent No. 8 would have gone in favour of Respondent No. 2, had Respondent No. 8 not been one of the candidates at the election.
The High Court has on the evidence before it held that "in the context particularly of the poll being heavy and the contestants being large in number 16 in all it remains unreasonable to guess that if the respondent No. 8 were excluded from the arena of contest the wasted votes would have gone to the respondent No. 2 thereby enabling him to succeed.
The burden Iying upon the petitioner remains clearly undischarged and the speculative possibility does not attain the level of proof.
" We agree with the above observation of the High Court since the appellant has not discharged the burden which clearly lay on him or proving that the result of the election had been materially affected even assuming that the nomination of Respondent No. 8 had been improperly accepted.
This appeal should, therefore, fail.
We accordingly dismiss it.
We, however, make no order as to costs.
N.P.V. Appeal dismissed.
| % A number of the princely States, situated within the territories of the present State of Orissa, were merged with effect from January 1, 1948, with the Province of orissa as it then existed.
On such merger, the High Schools within the said princely States came under the juries diction of the Province of Orissa.
The Schools belonged to two categories 'A ' type schools which were full fledged High schools sending candidates for the Matriculation examination and `B ' type schools which were incomplete schools, not sending candidates for the Matriculation examination.
On the said schools being taken over by the Province of orissa the teachers of the schools came under the control of the Government of orissa.
The orissa Government issued a letter dated 5.1.1949 to the Director of Public Instruction in connection with the subject of regulation of the services of the teachers.
The appellant was an assistant teacher in one of the 'B ' type schools on June 15, 1q953, after the commencement of the Constitution of India, and continued to work as such in the 'B ' type school till August 1, 1964, when the State Government of Orissa published a rationalisation scheme for integrating the services of the teachers in the different types of High Schools in the State.
Aggrieved by the terms of the Scheme relating to (i) the seniority of the teachers working in the 'B ' type High Schools and (ii).
The contributory Provident Fund, the appellant filed a writ petition in the High Court.
The High Court upheld the validity of the Scheme and dismissed the Petition, while recommending, however, to the Government to modify the terms relating to the Provident Fund Scheme applicable to the teachers of 'B ' type High Schools.
The appellant then moved this Court by special leave against the decision of the High Court.
Disposing of the appeal, the Court, 651 ^ HELD: It is true that till the commencement of the Constitution of India, the position of the 'B ' type High Schools and the teachers working in them was being regulated in accordance with the terms contained in the order dated 5.1.1949.
But on the commencement of the Constitution of India, all the territories which immediately before the commencement of the Constitution were either comprised in the Province of Orissa or were being administrated as if they formed part of that Province, became and constituted the State of Orissa.
The State Government was under obligation to discharge its executive functions with respect to education in respect of all the schools including 'B ' type High Schools.
A High school which once belonged to a princely state became a Government High School with effect from the commencement of the Constitution and it could not be anything else and the teachers working therein became teachers holding posts under the Government.
It is well settled that the doctrine of an "act of State" cannot be pleaded by a State as a defence against its own citizens.
An 'act of State ' is an act done in relation to a foreigner by a Sovereign power of a country.
Such an act cannot be questioned in any court of law, but such a situation would not arise between the State Government and a citizen like the appellant who joined service after the commencement of the Constitution.
The High Court was in error in upholding the plea that the order dated 5.1.1949 could not be questioned by the appellant who had joined service after the commencement of the institution.
[657A E. GH; 658A] There is also no rational basis for refusing to give the benefit of the service rendered by a teacher working in a 'B ' type High school after January 26, 1950, either for purposes of seniority or for purposes of computing the retirement benefits.
It may be open to the State Government, while integrating the services of teachers working in different kinds of institutions, to introduce a scheme of rationalisation which may have the effect of modifying the conditions of service of different groups of government servants.
But the Government cannot by a stroke of pendeny the benefit of the entire past service rendered by one group of such government servants.
The effect of the government scheme was that all the teachers who had been in Government Schools immediately prior to June 1 1964 the date of coversion of the High Schools to government schools became senior to the teachers working in the 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools.
The scheme appears to be an irrational one.
The High Court was in error in upholding the terms of the scheme in so far as the question of the seniority was concerned.
The judgment of the High Court.
in so far as the validity of the terms of the scheme, pertaining to 652 seniority of the teachers in the schools referred to in it, is concerned, is reversed.
the clause in the scheme which reads: "But for the purpose of reckoning their seniority in Government service their services will be counted from the date of conversion of the schools into Government schools" is void.
The State government is directed to treat, on and after January, 26, 1950, the service of the teachers of the 'B ' type High schools, ex District Board High Schools and ex Anchal High Schools as the service under the State Government.
It is open to the State Government to evolve a reasonable formula for integrating the cadres of these teachers with the cadres of the teachers in the High Schools which have been under the Government all along.
Before bringing about such an integration, the government may formulate reasonable principles for equating the posts in the Government High Schools with the posts in the 'B ' type High Schools, ex District Board High Schools and ex Anchal High Schools having regard to the minimum qualification for the posts, pay, responsibilities, etc.
In the light of the said principles, the government shall prepare a seniority list, whereafter it shall proceed to make promotions of the teachers to the higher cadre.
In view of the stand taken by counsel for the appellant and other teachers in 'B ' type High schools, ex District Board High Schools and the ex Anchal High schools, regarding their not insisting upon promotions with retrospective effect, etc., the State government shall promote these teachers to the higher posts as and when the vacancies arise hereafter, on the basis of their rank in the seniority list, if they are found fit for such promotion.
The government is at liberty, if it finds it convenient, to treat, as submitted by the teachers ' counsel, the two groups of teachers as belonging to separate cadres and reserve certain percentage of posts for being filled up only by the teachers of 'B ' type High Schools, ex District Board High Schools and ex Anchal High schools, as was the case in State of Punjab vs Joginder Singh, [1963 (Supp. 2) SCR 169].
The order of the High Court is modified to the above extent and the State Government shall prepare the seniority list and make promotions accordingly within six months in the light of the above observations.
[659C G; 660C H; 661A D] No opinion is expressed on the question of Contributory Provident Fund Scheme, the same having been satisfactorily settled by the state.
[661D E] Johnstone vs Pedlar, ; , referred to.
|
il Appeals Nos.
469, 470,506, 507 and 529 to 534 of 1962.
Appeals by special leave from the judgment and order dated December 18, 1961, of the Madhya Pradesh High Court in Misc.
Petition Nos. 24, 29, 42, to 45, 58, 70, 95 and 213 of 1960.
WITH Petitions Nos. 70 and 71 of 1962.
Petition under article 32 of the Constitution of India for enforcement of Fundamental rights.
Sachin Chaudhri, B. Sen, J. B. Dada chanji, O. C. Mathur and Ravinder Narain, for the appellants (in C. As.
469 and 470/62) and the Petitioners (in Petitions.
Nos. 70 and 71 of 62).
A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan, for the respondent (in C. As.
469 470, 506 and 507 of 62), Respondents Nos. 1 and 3 (in C. As.
529 to 534/62) and Respondent No. 1 (in Petn.
Nos. 70 and 71/62).
B. Sen and I. N. Shroff, for the appellants (in C. As.
506 and 507/62).
175 N. C. Chatterjee, Y. section Dharmadhikaree and M. section Gupta, for the appellants (in C. As.
529 to 534 of 62).
I. N. Shroff, for the respondents Nos. 2 and 4 (in C. As.
529 to 534 of 62).
September 24.
The judgment of the Court was delivered by GAJENDRAGADKAR, J.
These ten appeals and two writ petitions have been placed for hearing together in a group, because they raise common questions of law.
The appellants in these matters are all colliers holding mining leases under the Government of Madhya Pradesh for the extraction of coal from collieries situated in the Chhindwara District.
The respondent, Janapada Sabha, Chhindwara, has issued notices against them calling upon them to pay coal tax " 'for coal manufactured at the mines, sold for export by rail or sold otherwise than for export by rail within the jurisdiction of the original Independent Mining Board for the said area It appears that the mining area in question was within the territorial limits of the Independent Mining Local Board which had the status and powers of a District Council under the Central Provinces Local Self Government Act, 1920 (hereinafter called the Act).
The respondent Sabha is the successor of the said Mining Board and, therefore, claims to be entitled to continue the levy and recover the tax in question.
On March 12, 1935, the Mining Board exercising its powers under section 51 of the Act, resolved to levy coal tax, and accordingly, the first imposition made by it received the sanction of the local Government on December 16, 1935, as per Notification No. 8700 2253 D VIII.
This notification came 'into force from January 1, 1936.
On December 16, 1935, the local Government notified the rules for the assessment and 176 collection of the tax which it had framed in exercise of the powers conferred on it by section 79 (1), clauses (xv), (xix) and (xxx).
Rule 2 of these Rules provided that the tax shall be payable by every person, firm or company holding a mining lease for coal within the limits of the Independent Mining Local Board 's jurisdiction.
Rule 3 provided that the tax shall be levied @ three pies per ton on coal, coal dust or coke manufactured at the mines, sold for export by rail or sold otherwise than for export by rail within the territorial jurisdiction of the Independent Mining Local Board.
In 1943, the words " 'coke manufactured at the mines" were deleted from Rule 3 and the tax was confined to coal and coal dust.
The rate thus prescribed was increased from time to time.
On December 22, 1943, the rate was made 4 pies per ton; on July 29, 1946, it was made 7 Pies, per ton; and on July 1. 9, 1947, it was made 9 pies.
The Mining Board continued to recover the tax at the said rates until the Act was repealed in 1948 and in its place was enacted the Central Provinces and Berar Local Self Government Act, 1948 (No. 38 of 1948).
The respondent Sabha has now taken the place of the said Mining Board and has issued the notices against the several appellants, calling upon them to pay the coal tax for the different periods mentioned in the said notices.
The appellants in Civil Appeals Nos.
469 and 470 of 1962 are : The Amalgamated Coalfields Ltd. and The Pench Valley Coal Co. Ltd. They are companies in operated under the Indian Companies Act, 1913, andor both have Shaw Wallace & Co., Ltd., as their Managing Agents.
On August 23, 1958, notices were served on the two appellants calling upon them to pay Rs. 21,898/ 64 np and Rs. 11,838/9 np respectively as tax assessed @ 9 pies per ton from ,,January 1, 1958, to June 30, 1958: This tax was claimed in respect of coal which included coal despatched by the appellants outside the State of 177 Madhya Pradesh.
The validity of these notices was challenged by the appellants in this Court by their Writ Petition 'No. 31 of 1959.
On February 10, 1961, the said writ petition was dismissed by this Court and it was held that the notices served on them were valid (Vide The Amalgamated Coalfields Ltd. vs The Janapada Sabha, Chhindwara(1).
On September 13, 1960 and March 2, 1961, two notices of demand were served on the appellants calling upon them to pay Rs. 1,16,776/25 nP. and Rs. 65,261/19 nP. respectively in regard to the tax assessed @ nine pies per ton on all coal despatched by the appellants from their collieries for the half years ending June 30, 1958.
December 31, 1958, June 30), 1959, December 31 1959, June 30, 1960 and December 31, 1960.
The appellants challenged the validity of these notices by a Writ Petition filed by them in the High Court of Madhya Pradesh on April 1.2, 1961 (No. 95 of 1961).
Whilst the said writ petition was pending before the High Court, the appellants filed another writ Petition in the same High Court (No. 213 of 1961).
By this writ petition, the appellants challenged the validity of notices issued against them on June 9, 1959, by which coal tax was demanded from them for a period between April 1, 1951 to December 31, 1957.
This tax was levied in respect of coal despatched by the appellants outside the State of Madhya Pradesh.
The amounts demanded were Rs. 1,92,144/66 nP. and Rs. 68,319/36 nP. respectively.
These two petitions along with eight others were heard together by the High Court.
So far as the appellants ' petitions were concerned, the High Court has held that the appellants ' claims were barred by res judicata by reason of the earlier decision of this Court in the case of the Amalgamated Coalfields Ltd. (1).
The appellants then applied for and obtained special leave from (1) ; 178 this Court on April 23, 1962 and it is by special leave thus granted to them that they have come to this Court in Civil Appeals 469 & 470 of 1962.
The appellants have also filed two Writ Petitions Nos. 70 & 71/1962 under article 32 of the Constitution.
By these writ petitions, the two appellants challenged the validity of the notices served on them on Julie 9, 1959 as well as on September 13, 1960.
The appellants ' case is that these notices are illegal and without jurisdiction and so, they want them to be quashed by an appropriate writ or order issued against the respondent in that behalf.
Thus, the two appellants, the Amalgamated Coalfields Ltd., and the Pench Valley Coal Co. Ltd.,, arc concerned with the two appeals Nos 469 & 470/1962) and Writ Petitions 70 & 71/1962.
The other appeals arise from the writ petitions filed in the High Court of Madhya Pradesh by the respective appellants which were tried along with the writ petitions filed by the Amalgamated Coalfields Ltd. & Anr.
In dealing with these writ petitions, High Court has held that the decision of this Court is the case of Amalgamated Coalfields Ltd.(1) concludes the points raised by them in challenging the validity of the notices, and so, following the said decision, the High Court has dismissed all the said petitions.
The appellants applied for and obtained special leave to come to this Court against the said decisions and it is with the special leave thus granted to them that these appellants have come before us.
Civil Appeal No. 506 arises from the decision of the High Court of 'Madhya Pradesh dismissing the writ petition filed before it by the appellant, the Central Provinces Syndicate (P) Ltd.
By its writ petition the appellant had challenged the validity of the notice served by the respondent calling upon it to pay arrears of the tax amounting to Rs. 20,776/88 nP. being arrears from April 1, 1951 to June 30, 1959.
(1) ; 179 It appears that for the said period, the appellant had been taxed by the respondent, but the said tax was not imposed on coal which had been transported by the appellant outside the limits of the State of Madhya Pradesh.
The respondent now sought to reopen the assessment levied against the appellant for that period by including a claim for tax in respect of coal sold by the appellant outside the limits of the State.
The High Court has rejected the Writ Petition and that decision 'has given rise to Civil Appeal No. 506 of 1962.
Civil Appeal No. 507 of 1962 arises from a writ petition filed by the appellants M/s. Kanhan Valley Coal Co. (Private) Ltd., in the High Court of Madhya Pradesh in which the validity of the notice issued by the respondent calling upon the appellants to pay the coal tax amounting to Rs. 10,970/ as arrears from April 1, 1951 to June 30, 1959 has been challenged.
The High Court has dismissed the writ petition, and so, the appellants have come to this Court by their Appeal No. 507/1962.
Civil Appeals Nos.
529 to 534 of 1962 similarly arise out of six writ petitions filed by the appellants M/s. Newton Chickli Collieries (P) Ltd. & five others in the High Court of Madhya Pradesh challenging the validity of the notices of demand served on them to recover by way of arrears coal tax for the periods mentioned in the notices in regard to coal sent by them outside the State of Madhya Pradesh for export.
These writ petitions were dismissed by the High Court, and the appellants have, therefore, come to this Court by appeals Nos.
529 534/1962.
That, in brief, is the genesis of the ten appeals and two writ petitions which have been grouped together for hearing in this Court.
It will thus be seen that Civil Appeals Nos.
469 & 470/1962 and Writ Petitions Nos.
70 & 71/1962 raise a preliminary question about the applicability 180 of the doctrine of res judicata to writ petitions filed under article 226 or to petitions under article 32, whereas the said appeals and writ petitions as well as the other appeals raise an additional question about the validity of the notices issued against the respective appellants.
We would, therefore, deal with civil appeals Nos.
469 and 4 70/1962 and Writ Petitions Nos. 70 and 71/1962.
Our decision in these matters will govern the other appeals in this group.
The first point which falls for our decision, in these appeals is one of res judicata.
The High Court has held that the challenge made by the appellants against the validity of the demand notices issued against them by the respondent is barred by res judicata by virtue of the decision of this Court in the earlier case brought by the appellants themselves before this Court.
The Amalgamated Coalfields Ltd.(1) Before dealing with this point it is necessary to refer to the said decision.
In that case, the validity of the impugned notices was challenged on two grounds ; it was urged that the levy of the tax by the Independent Mining Board was invalid at the date of its initial imposition in 1935 and so, the respondent Sabha which was the successor of the said Mining Board could claim no authority to continue the said tax.
This contention was based on the assumption that before the power conferred by section 51 of the Act could be exercised,, the previous sanction of the Governor General had to be obtained, or that there should be fresh legislation in that behalf.
This Court held that the Act having received the assent of the Governor General, its validity cannot be challenged in view of the saving clauses in the proviso to section 80A (3) and section 84(2) of the Government of India Act, 1915.
That being so, it was not open to any party to suggest that any subsequent amendments of the Government of India Act could affect the continued validity and operation of the Act.
The second contention raised was one of construction.
It was urged (1) ; 181 that on a fair construction of section 51, the coal tax was excluded from the purview of the local authority.
The This argument was based on the opening clause of section 51 which provided that its provisions would operate subject to the provision of any law or enactment for the time being in force.
It was suggested that this clause took in the provisions of section 80A(3) of the Government of India Act read with the Scheduled Taxes Rules framed under that section, but this argument was also rejected.
It appears that at the hearing of the petition, the appellants also attempted to take an additional point against the validity of the.
impugned notices on the ground that the rate of tax which had been increased from 3 pies to 9 pies per ton was invalid.
The appellants ' case was that this increase was effected after the commencement of the Government of India Act, and so, it was invalid.
This argument was not considered by the Court, because it was not even hinted in the petition filed by the appellants and the Court thought that it would not be proper to permit the appellants to raise that point at that stage.
That is how the appellants ' challenge to the validity of the impugned notices served on them on August 23, 1958 was repelled and the writ petition filed by them in that behalf was dismissed.
It appears that the authority of the Janapada Sabha to levy the impost under s.51 of the Act was challenged on another ground in the case of Ram Krishna Ram Nath v, Janapad Sabha (1).
This time the attack against the competence of the janapad Sabha proceeded on the ground that in repealing the Act of 1920, the subsequent Act of 1948 had not provided for the continuance of the said power in the janapad Sabhas which were the successors of the Independent Mining Boards.
Section 192(c) purported to provide that all rates, taxes and cesses due to the District Council, Local Board or Independent Local Board shall be deemed to be due to the Sabha to (1) [1962] Supp. 3 S.C.R. 70. 182 whose area they pertain.
But it was obvious that this clause could apply to, and save, only rates, taxes and cesses already due; it did not authorise the imposition of fresh cesses, taxes or rates in future.
Having realised that the relevant provision did not save future imposts, an amending Act was passed in 1949 by which the said saving was extended to include the right of the janapad Sabhas to continue the levy of the impugned tax and this amendment was made retrospective f from June 11, 1948, when the parent Act had come into force.
In the case of Ram Krishna (1) the validity and effectiveness of this amendment of 1949 was challenged.
It was thus a basic challenge to the power of the janapad Sabhas to levy any impost on the ground that the subsequent amendment was invalid.
This Court repelled the said challenge and held that the retrospective operation of the amendment was valid.
According to this decision, the Provincial Legislature was competent to legislate for the continuance of the tax, provided the relevant conditions of s.143(2) of the Government of India Act 1935 were satisfied.
These conditions required that the tax should be one which was lawfully levied by a local authority for the purposes of a local area at the commencement of Part III of the Government of India Act; that the identity of the body that collects the tax, the area for whose benefit the tax is to be utilised and the purposes for which it is to be utilised continue to be the same, and that the rate of the tax is not enhanced nor is its incidence materially altered, so that, in substance, it continues to be the same tax.
Since these tests were satisfied by the impost levied by the janapad Sabha, it was held that the impost was valid and that the retrospective amendment of s.192 was effective.
The present proceedings constitute a third challenge to the validity of the notices issued by the janapad Sabha, and as we have already seen, the (1) [1962] Supp. 3 S.C.R. 70.
183 challenge made by the appellants by their writ petitions before the High Court has been repelled on the preliminary ground that it is barred by res judicata.
In that connection, the first question to consider is whether the general principle of res judicata applies to writ petitions filed under article 32 of the Constitution.
This question has been considered by a special Bench of this Court in the case of Pandit M. section M. Sharms vs Dr. Shree Krishna Sinha (1).
Chief justice Sinha, who delivered the unanimous opinion of the Court, has answered this question in the affirmative.
In that connection, the learned Chief justice has referred to an earlier decision of this court in Raj Lakshmi Dasi vs Banamali Sen, (2) where it has been laid down that the principle underlying res judicata is applicable in respect of a question which has been raised and decided after full ' contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings.
It ought to be added that the Tribunal which had tried the first dispute in that case was a Tribunal of exclusive jurisdiction.
Then the points raised on behalf of the petitioner Sharma were considered and it was noticed that, in substance, they were the same points which had been agitated before this Court on an earlier occasion and had been rejected.
"In our opinion", said the judgment, "the questions determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which as indicated above, are substantially the same.
" Thus, this decision shows that even petitions filed under article 32 are subject to the general principle of res judicata.
The question about the applicability of the doctrine of res judicata to the petitions filed under (1) (2) ; 184 article 32 came before this Court in another form in Daryao vs The State of U. P. (1), and in that case it has been held that where the petition under article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties, unless modified or reversed by appeal or other appropriate proceedings under the Constitution, and so, if the said decision was not challenged by an appropriate remedy provided by the Constitution, a writ petition filed in respect of the same matter would be deemed to be barred by res judicata.
Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under article 32 or article 226.
It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India.
It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law.
The question in the present appeals, however, is somewhat different.
The notices which are challenged by the appellants in the present proceedings are in respect of the tax levied for a period different from the period covered by the notices issued on August 23, 1958 which were the subject matter of the earlier writ proceedings (The Amalgamated Coalfields Ltd. ( 2 ) ) .
Where the liability of a tax for a particular year is considered and decided, does the decision for that particular year operate as res judicata in respect of the liability for a subsequent year ? In a sense, the liability to pay tax from year to year is a separate and distinct liability; it is based on a different cause of action from year to year, and if any points of fact or law are considered in determining the liability for a given year, they can generally be deemed to have been considered and decided in a collateral and incidental way.
The (1) ; (21 ; 185 trend 'of the recent English decisions on the whole appears to be, in the words of Lord Radcliffe, ',,that if is more in the public interest that tax and rate assessments should not be artificially encumbered with estoppels (I am not speaking, of course, of the effect of legal decisions establishing the law, which is quite a different matter), even though in the result, ' some expectations may be frustrated and some time wasted." (vide Society of Medical Officers of Health vs Hope Valuation Officer (1)).
The basis for this view is that generally, questions of liability to pay tax are determined by Tribunals with limited jurisdiction and so, it would not be inappropriate to assume that if they decide any other questions incidental to the determination of the liability for the specific period, the decisions of those incidental questions need not create a bar of res judicata while similar questions of liability for subsequent years are being examined.
In that connection, it would be interesting to refer to four English decisions.
In the case of Broken Hill Proprietary Co. Ltd. and Municipal Council of Broken Hill, (2) the question which fell for decision was how the average annual value of a mine for rating purposes had to be determined, and it was held by the Privy Council that the said value was to be ascertained by dividing the value of the output during the three years by three, not by multiplying it by 205 and dividing it by 365.
One of the points which the Privy Council had to consider was whether a contrary decision reached by the High Court of Australia between the parties as to the valuation for a previous year, operated as res judicata.
In rejecting the plea that the principle of res judicata applied, Lord Carson.
observed that ""the decision of the High Court related to a valuation and a liability to a tax in a previous year, and no doubt as regards that year, the decision could not be disputed.
The present case relates to a new question, viz., the valuation for a different year and the liability for that year.
It is not (1) , 563, (2) 186 eadem questio, and therefore, the principle of res judicata cannot apply." (p. 100).
It, however, appears that in the same year, the Privy Council came to a somewhat contrary decision in the case of Hoystead vs Commissioner of Taxation.(1) In that case, the question which arose for decision was about the deduction claimable under ther elevant provision of the Land Tax Assessment Act, 1916 (Aust.) Upon the assessment for 1919 20, the Commissioner allowed only one deduction of 5,000 lbs.
contending that the beneficiaries were not joint owners within the meaning of the Act.
The case was then stated to the full Bench which upheld the Commissioner 's view and rejected the argument that the Commissioner was estopped from coming to that conclusion in view of his decision in a previous year.
When the matter went before the Privy Council, it reversed the decision of the Full Court, because it held that the Commissioner was estopped, even though in the previous litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were, and the Privy Council thought that the matter so admitted was fundamental to the decision then given.
It would thus be seen that this decision applied the principle of res judicata even where there was no express decision on the point, but the point had been conceded in the earlier proceedings.
In 1960, the House of Lords had occasion to consider this question in the case of Society of Medical Officer of Health (2).
We have already quoted one statement of 'the law from the speech of Lord Radcliffe in that case.
In that case, the main reason given for repelling the application of the principle of res judicata in rating cases, was that the jurisdiction of the Tribunal which deals with those cases is limited, in that its function begins with and ends with deciding the assessment or liability of a person for a terminable period.
Besides, it was (1) (2) , 563.
187 held that the position of a valuation officer is that of a neutral official charged with the recurring duty of bringing into existence a valuation list, and he cannot properly be described as a party so as to make the proceedings a lis inter partes.
In coming to the conclusion that the doctrine of res judicata would not apply in such cases, Lord Radcliffe was influenced by the consideration that if decisions in rating cases are to be treated as conclusive for all time that Would be to impose a needlessly heavy burden upon the administration of rating (p.566).
This decision purported to approve of the view taken in the case of the Broken Hill Proprietary Co. Ltd.(1) and to distinguish the view taken in the Hoystead case.
(2) Lord Radcliffe had occasion to return to the same subject again in Gaffoor vs Income tax Commissioner.
(3) Speaking for the Privy Council, Lord Radcliffe considered the problem of the application of res judicata to taxation cases, examined it in detail and came to the conclusion that the said doctrine did not apply to tax cases in the sense that the decision for the levy of a tax for one year does not operate as res judicata in dealing with the question of a tax for the subsequent year.
On this occasion, emphasis was not placed so much on the limited nature of the jurisdiction of the Tribunal that deals with tax cases, but it was held that even if the matter goes to a High Court on a statement of the case, the decision of the High Court would also not create a bar of res judicata in dealing with the tax claim for a subsequent year. " 'The critical thing," said Lord Radcliffe, " 'is that the dispute which alone can be determined by any decision given in the course of these proceedings is limited to one subject only, the amount of the assessable income for the year in which the assessment is challenged.
" He, no doubt, recognised that in the process of arriving at the necessary decision, it was likely that the consideration of questions of law turning upon the construction of the ordinance or of other statutes or (1) (2) , (3) [1961] 2 W.L.R.794.
188 upon the general law, may be involved, but he thought that the decision of those questions should be treated as collateral or incidental to what is the only issue that is truly submitted to determination (pp. 800 801).
This decision would, therefore, support the appellants ' contention that the High Court was in error in dismissing their writ petitions on the preliminary ground that they were barred by res judicata.
In considering this question, it may be necessary to distinguish between decision on questions of law which directly and substantially arise in any dispute about the liability for a particular year, and questions of law which arise incidentally or in a collateral manner, as Lord Radcliffe himself has observed in the case of the Society of Medical Officers of Health, (1) that the effect of legal decisions establishing the law would be a different matter.
If, for instance, the validity of a taxing statute is impeached by an assessee who is called upon to pay a tax for a particular year and the matter is taken to the High Court or brought before this Court and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate as res judicata against the assessee for a subsequent year.
That, however, is a matter on which it is unnecessary for us to pronounce a definite opinion in the present case.
In this connection, it would be relevant to add that even if a direct decision of this Court on a point of law does not operate as res judicata in a dispute for a subsequent year, such a decision would, under article 141, have a binding effect not only on the parties to it, but also on all courts in India as a precedent in which the law is declared by this Court.
The question about the applicability of res judicata to such a decision would thus be a matter of merely academic significance.
In the present appeals, the question which arises directly for our decision is : does the principle (1) , 563.
189 of constructive res judicata apply to petitions under article 32 or article 226 where the dispute raised is in respect of a year different from the year involved in a prior dispute decided by this Court ? We have already noticed the points actually decided by this Court against the appellants on the earlier occasion (vide The Amalgamated Coalfields Ltd.(1)).
One of the points sought to be raised was in regard to the validity of the increase in the rate of tax from 3 pies to 9 pies per ton; and since this point had not been taken in the petition and relevant material was not available on record, this Court refrained from expressing any opinion on it.
The appellants contend that the order passed by this Court refusing permission to the appellants to raise this point on the earlier occasion does not mean that this Court has decided the point on the merits against the appellants; it may mean that the appellants were given liberty to raise this point later: but even otherwise, the point has not been considered and should not be held to be barred by constructive res judicata .
It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion.
It is not as if the same ground which was urged on the earlier occasion is placed before the Court in another form.
The grounds now urged are entirely distinct, and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under article 32 or article 226.
In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by section 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under article 32 or article 226.
We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impugned tax liability is for different years.
In dismissing the appellants ' petitions on the ground of res judicata, the High Court has no doubt referred to (1) ; 190 article 141 under which the law declared by this Court is binding on all Courts within the territory of India.
But when we are considering the question as to whether any law has been declared by this Court by implication, such implied declaration, though binding must be held to be subject to revision by this Court on a proper occasion where the point in question is directly and expressly raised by any party before this Court.
Therefore, we are inclined to hold that the appellants cannot be precluded from raising the new contentions on which their challenge against the validity of the notices is based.
The first.
ground urged by the appellants on the merits is that the levy authorised to be imposed by the Act and the Rules framed thereunder violates the fundamental rights guaranteed to the citizens under article 19 (1) (f) of the Constitution, and in support of this Arguments reliance is placed on the decision of this Court in Kunnathat Thathunni Moopil Nair vs The State of Kerala (1).
In that case, the impugned Act was struck down because it suffered from several serious infirmities; it was confiscatory in character and its provisions in regard to the levy of the impost were so arbitrary and unreasonable that the Court took the view that the Legislature had completely ignored the legal position that the assessment of a tax on person or property was at least of a quasi judicial character.
This conclusion was based on the examination of the relevant statutory provisions.
in the present case, we are not satisfied that this decision can assist the appellants at all, because the nature of the statutory provisions and the Rules framed under the Act in the present appeals is entirely different.
At this stage, it is necessary to refer to the relevant statutory provisions and the Rules.
Section 51 of the Act (which, in substance, corresponds to section 90 of the Act of 1948) reads thus (1) ; 191 "51.
(1) Subject to the provisions of any law or enactment for the time being in force, a District Council may, by a resolution passed by a majority of not less than two thirds of the members present at a special meeting convened for the purpose, impose any tax, toll or rate other than those specified in sections 24, 48, 49 and 50.
(2) The first imposition of any tax, toll or rate under sub section (1) shall be subject to the previous sanction of the Provincial Government.
x x x X" Sub section (3) and the proviso are not relevant for our purpose.
Then we go to section 79 which confers power on the Provincial Government to make Rules.
Section 79 (1)(xv) is relevant for our purpose.
It provides that : "The Provincial Government may make rules consistant with this Act and with reference, if necessary, to the varying circumstances of different local areas, as to the assessment and collection of the cases and rates specified in sections 48, 49 & 50 and of any tax, toll or rate imposed under section 51, as to the maximum amounts or rates at which any of them may be imposed, as to the prevention of evasion of assessment or payment thereof, as to the agency by which they shall be assessed and collected, and as to the manner in which account thereof shall be rendered by District Councils.
" In pursuance of the powers conferred on the local Government by section 79, rules have been framed on December 16, 1935.
Rules 3 to 10 deal with the question of the impost of tax and provide how decisions made in that behalf by appropriate authorities 192 become final.
Rule 3 prescribed the rate at 3 pies per ton, Rule 4 provides that the figures reported by the concessionaires and the Railway companies half yearly to the Dy.
Commissioner, shall be the basis for the assessment of the tax.
Under Rule 5, every mining lessee has to submit a statement half yearly.
On receipt of the statement, the assessment has to be made by the Chairman of the Independent Mining Local Board under Rule 6.
A notice of demand follows under rule 7.
Fifteen days ' period is given for filing objections under Rule 8.
Rule 9 provides for the Consideration and disposal of the objections, and Rule 10 lays down that if no objection is filed, the Chairman 's assessment shall be final, if any objection is received, the Independent Mining Local Board 's decision shall be final and shall be communicated to the assessee as soon as possible.
It would thus be seen that the scheme of these Rules provides ample opportunity to the assessees to object to the notice of demand served on them and in fact, the demand notices are substantially based on the figures supplied by the railway companies and the concessionaires and the statements submitted by the assessees themselves.
Therefore, it would be idle to suggest that the impost of the tax authorised by the relevant statutory provisions and the Rules is a capricious administrative or executive affair and so, should be held to violate article 19(1)(f) of the Constitution.
Then it is urged that the demand of the tax @ 9 'es per ton is invalid, because it is inconsistent with Rule 3 which has prescribed the maximum rate permissible to be levied against the assessees.
We have already noticed that section 79(1)(XV) authorised the making of a rule as to the maximum amounts or rates at which any of the articles can be taxed.
This was introduced by an amendment made in 1933 by C.P. Act VII of 1933, and so, the argument is that Rule 3 which provides that the tax shall be levied @ 3 pies per ton must be deemed to pro 193 vide for the maximum rate which can be levied and that is 3 pies per ton and no more.
This argument is no doubt well founded., because Rule 3 will have to be read in the light of the power conferred on the local Government by section 79(XV) and that would mean that the rate of 3 pies per ton has been prescribed by the Rule of the maximum rate permissible.
But this argument ignores the fact that this Rule has been subsequently deleted by a notification on September 6, 1943 published in the Government Gazette on September 10, 1943.
When this notification was cited before us, the appellants conceded that the argument based on the construction of Rule 3 was not available to them.
Therefore, the contention that Rule 3 prohibits the levy at a rate higher than 3 pies cannot succeed since the Rule itself has been subsequently deleted and was not a part of the Rules at the relevant time when the impugned notices were issued.
It is then argued that the impost of the tax at the rate of 9 pies per ton is not valid, because it does not comply with the requirements of section 51(2) of the Act, and that raises the question of the construction of the said section.
Section 51(1) authorises the imposition of the tax, provided, of course, the procedure prescribed by it and the requirements laid down by it are satisfied.
Sub Section (2) then lays down that the first imposition of any tax shall be subject to the previous sanction of the Provincial Government.
The appellants contend that in the context, the "first im position" means not only the first imposition in the sense of an initial imposition, but it includes every fresh imposition levied at an increased rate.
On the other hand, the respondent Sabha contends that the first imposition means only the initial levy or impost and cannot take in subsequent imposts or levies. 'In this connection, it is relevant to remember that sub section (2) was added by the same Amending Act by which section 79(XV) was amended, and 194 so, it would not be unreasonable to assume that when the legislature gave power to the local Government to prescribe by rules the maximum rates permissible to be levied, it introduced sub section (2) in section 51 because it was thought necessary that whenever the rates were changed, the imposition of the tax at the increased rates should receive the previous sanction of the Government.
If the respondent 's construction is accepted, it would mean that the respondent should obtain the previous sanction of the Government at the initial levy and thereafter may go on increasing the rate of the levy to any extent without securing the sanction of the Government in that behalf.
Now that Rule 3 has been deleted and no maximum has been or can be prescribed by the Rules, it would be unreasonable to hold that the respondent is given an unfettered and unguided authority to levy the impost in question at any rate it likes.
Since no ceiling has been placed by the Rules in that behalf, it would, we think be fair to hold that if the rates are increased and levy is sought to be imposed on the altered rates, the imposition of the levy at these altered rates should be deemed to be included in the express on "first imposition" under section 51(2).
We are, therefore, inclined to accept the appellants ' construction of section 51(2).
That being so, it is necessary to enquire whether the imposition of the tax @ 9 pies has received the previous sanction of the local Government.
During the course of his arguments, Mr. Sastri for the respondent attempted to suggest that sanction had been obtained for the increase in the rates from time to time and a typed summary of the notifications issued in that behalf was supplied to us at the time of arguments.
This summary refers to the three increments made in 1943, 1946 and 1947 respectively to which we have already referred.
The summary read as if the increments had been sanctioned by the State Government.
But Mr. Sachin Choudhury for the appellants contended that the 195 summary supplied by the respondent was incomplete and inaccurate and that the examination of the Gazette in which the notifications were published, would show that the amendments in the rates had been made not with the previous sanction of the Government, but by the Mining Local Board itself.
Two of these notifications were then produced before us by the respondent, and they supported the conten tion made by Mr. Choudhury.
Therefore, the argument that the imposition @ 9 pies per ton has received the sanction of the Government must fail, and so, the impugned notices which seek to recover the tax from the appellants @ 9 pies per ton must be held to be invalid The respondent is entitled to levy tax only @ 3 pies per ton because that levy has received the sanction of the Government, but if the respondent intends to increase the rate of the said tax, it must follow the procedure prescribed by s.51(2), provided of course, it is open to the respondent to increase the said tax.
There is yet another point on which the appellants are entitled to succeed, and that has reference to the fact that the respondent is seeking to reopen some of the assessments made by it against the appellants.
The argument is that once an assessment is made for a specific period, it becomes final and it is not open to the respondent to demand additional amount by way of tax in respect of the said period.
The genesis of the tax is somewhat interesting.
It appears that roads were constructed by the Independent Mining Local Board at enormous cost at the request of the Mining interests and even debt had to be incurred by the Board for completing the work of the construction of roads.
Since the mining companies received substantial benefit from these roads, the Legislature thought of levying a tax on coal, and that is the origin of the tax.
When the first notification was issued on December 16, 1935 it authorised and sanctioned the imposition by the Independent 196 Mining Local Board at Chhindwara in the Chhindwara District "of a tax at 3 pies per ton on coal, coal dust or coke, manufactured at the mines, sold for export by rail or sold otherwise than for export by rail, within the jurisdiction of the Independent Mining Local Board.
" This tax was recovered by the Board and thereafter by the respondent in respect of coal whether sold inside the district of Chhindwara or sold outside the district of Chhindwara or even outside the State of Madhya Pradesh.
In other words, the total coal produced by each mining lease holder substantially came to be taxed.
But after the Constitution came into force, doubts arose as to whether article 286 of the Constitution did not preclude the respondent from recovering tax in respect of coal exported out of the State of Madhya Pradesh, and in view of the advice given to the respondent by the Government of Madhya Pradesh, the respondent did not collect the tax in respect of coal which was exported by rail outside the State of Madhya Pradesh from about 1952.
The respondent wanted to consult legal opinion on this point, but the State Government refused permission to the respondent to incur expenditure in that behalf.
Subsequently however, this question came to be decided by the High Court of Madhya Pradesh in a writ petition filed by M/s. Newton Chickli Collieries (Pvt.
) Ltd. (No. 265 of 1957).
The High Court held that the tax levied by the janapada Sabhas under s.51 of the Act did not amount to a sales tax nor to an excise duty and so, the respondent thought that it could levy tax even on coal exported by rail outside the State of Madhya Pradesh.
In fact after this judgment was pronounced by the High Court on August 6, 1958, the Provincial Government withdrew its instructions to the respondent not to levy tax on exported coal.
That is how the respondent has issued notices against the appellants in respect of coal exported by rail out of the State of Madhya Pradesh in regard to the years for which assessment has already been levied against the 197 appellants for the coal not so exported, and the contention of the appellants is that this reopening of the assessment is not permissible under the Rules.
This contention appears to be well founded.
We have already seen the scheme of the Rules and we have noticed that Rule 10 provides that if no objection is filed, the Chairman 's assessment shall be final and if an objection is received, the decision of the Mining Board would be final.
In other words, the scheme clearly provides that at the end of each six monthly period, the tax has to be assessed, notices to be issued to the assessee, his objections to be considered and the tax to be ultimately determined in the light of the decision on the said objections; and under Rule 10, the two decisions specified therein become final.
It may be that the Rules do not prescribe any limitation within which these steps have to be taken by the respondent for each period, but that is another matter.
In view of the provisions of Rule 10, it is difficult to hold that the respondent is entitled to reopen assessments already made and rendered final under the said Rule.
There is no other provision for reopening assessment as we have under sections 34 & 35 of the Indian Income Tax Act, and so,.
the respondent is not justified in issuing notices for the years which arc covered by assessment orders already passed.
The finality provided for by Rule 10 will work as much against the respondent as against the assessees.
In support of the appeals, another argument was sought to be raised against the increase of the rates.
It was urged that the tax is in the nature of an excise duty or a sales tax and, therefore, any increase in the said tax beyond the limit of 3 pies the continuance of which has been saved by the provisions of article 143 of the Government of India Act, 1935 and article 277 of the Constitution will be invalid.
This argument is based on the terms used 198 in the notification of December 16, 1935.
Since coal is described as manufactured at the mines, the argument is that it is in the nature of an excise duty and since the notification also refers to coal sold for export by rail or sold otherwise than for export by rail, it is ' argued that it is a sales tax.
On the other hand, the respondent contends that it is neither a sales tax nor an excise duty and as such, the rate can be increased subject, of course, to the requirements of section 51 (2) of the Act.
It appears that by notification issued on September 6, 1943, the preamble of the Rules was modified by substituting for the words " 'coal, coal dust or coke" by "coal and dust coal" and by deleting the words " 'manufactured at the mines".
Curiously enough, these amendments have not been made in the original notification itself.
We have already noticed that this latter notification deleted Rule 3.
Some arguments were urged before us by learned counsel on both sides as to the effect of this notification which modified the preamble to the Rules.
We do not, however, think it necessary to consider these arguments in the present appeals because of our conclusion that the impugned notices levying the tax @ 9 pies per ton are invalid for two reasons: the increase in the rates has not been sanctioned by the State Government under section 51 (2) and an attempt to recover at the increased rate the tax for the years already covered by assessment orders passed in that behalf, is barred by Rule 10.
The result is, the appeals and the writ petitions are allowed and an appropriate direction or order is issued restraining the respondent from recovering the tax at a rate higher than 3 pies per ton and also restraining the respondent from recovering any additional tax in respect of the years for which tax has already been assessed against the appellants.
The same will be the order in the other companion appeals.
The 199 appellants will be entitled to their costs, but one set of bearing fees will be taxed.
Appeals and writ petitions allowed.
| The Government of Jammu and Kashmir on the basis of the report of the commission of enquiry set up by it demoted the respondent who had been suspended earlier.
The respondent moved the Jammu and Kashmir High Court under article 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a writ, inter alia, questioning the validity of the order suspending and demoting him, alleging violation of rules of natural justice by the commission of enquiry and breach of statutes and rules of service.
Articles 226 and 311(2) of the Constitution of India bad not been applied to the State of Jammu 970 and Kashmir.
The High Court acting under article 32(2A) set aside the orders suspending and demoting the respondent.
Held, that the High Court had no powers to act under article 32(2A) of the Constitution of India as the writ petition did not disclose a violation of any fundamental right.
Held, further, that the breach of a law by the ' Government, if any, did not amount to a denial of the equal protection of the laws, as it had not ever been alleged by the respondent that the benefit of that law had been designedly denied only to him.
|
Appeal No. 354 of 1957.
Appeal from the judgment and decree dated October 7, 1955, of the Patna High Court in Misc.
Judicial Case No. 422 of 1954.
L. K. Jha, D. P. Singh., R. K. Garg, M. K. Ramamurthi and section C. Agarwala, for the appellants.
B. K. P. Sinha and A. G. Ratnaparkhi, for respondent.
September 22.
The Judgment of the Court was delivered by DAS GUPTA, J.
This appeal by the State of Bihar challenges the correctness of an order made by the High Court at Patna in an application by the respondent under article 226 of the constitution.
The respondent was inducted as a tenant oil a tract of land measuring 245.69 acres in village Singpur by the then proprietor in November 1945, and continued to remain in possession after the Zemindari interest of the proprietor became vested in the State of Bihar in consequence of a notification under the Bihar Land Reforms Act (Bihar Act XXX of 1952) on the 30th December, 1952.
In 1945 this area was forest land.
On September 15, 1946, a notification was published under section 14 of the Bihar Private Forest Act, 1946 declaring the Government 's intention of constituting the forest a private protected forest.
By the same notification the Governor further ordered that until the publication of a notification under a. 30 of the Act all the rights to out, collect and remove trees or any class of trees in or from the forest shall cease to exist subject to conditions and specifications specified in the Second Schedule.
The result of this notification was that immediately on its publication in the Government Gazette the respondent 's right to cut, collect and remove trees 729 ceased so long as this forest continued to be a private forest.
On the 6th April, 1948, a notification under the proviso to section 30 of the Bihar Private Forest Act, was published.
After the forest land became vested in the State on the 30th December, 1952, there was a notification on January 22, 1953, which both parties agree, was in substance under the proviso to section 29 of the .
It is the common case of both the parties that in consequence of this notification the forests in Singpur Village became a protected forest.
On May 29, 1953, a further notification under section 30 of, the was made prohibiting the breaking up or clearing the ,land of this and certain other "protected forests" for cultivation.
As local employees of the Forest Department acting under the Divisional Forest Officer, Gaya, started interfering with the agricultural operations carried on behalf of the petitioner apparently on the strength of this notification of May 29, 1953, the respondent sought the per mission of the Collector of Gaya to start reclamation and cultivation of lands.
On April 22, 1954 the Collector of Gaya gave the petitioner permission "to go ahead with the work of reclamation and cultivation in this area.
" The Forest Officer however disregarded the Collector '& orders and made the petitioner to stop: reclamation.
On being approached by the appellant the Collector called upon the Forest Officer to furnish an explanation as to why he had flouted deliberately the Collector 's orders.
Ultimately, the Bihar Government sent a telegram to the Collector, Gaya, on June 10, 1954 desiring that the order issued by the Collector on April 22, permitting the respondent "to go ahead with the reclamation should be withdrawn pending the decision of the Government in the matter".
The Collector forwarded a copy of this telegram to the respondent for information and necessary action on June 11, 1954.
730 It does not appear that any further order has been made by Government in the matter.
On August 2, 1954 the respondent made his application to the High Court of Judicature at Patna praying that an appropriate writ be issued for cancellation by the Government of Bihar of the directions given on June 10, 1954 to the Collector and for restraining the Government of Bihar and the Forest Officer from interfering with the petitioner 's possession over this land in village Singpur.
The petitioner 's case was that the forest having become a protected forest under Chapter IV of the the Collector was the proper and competent authority to give permission to clear or break up for cultivation, land in this forest under Rule 8 of the rules made by the Government of Bihar in exercise of the power conferred by section 32 of the and that neither the Forest Officer nor the Government of Bihar itself could in law interfere with what he was doing on the strength of that permission.
In opposing the petition the State of Bihar contended that the Collector 's order was of no avail in the face of rule 4 of the rules made by the Government of Bihar under section 32 which provides that " 'no person shall out, convert, or remove from the said forest or otherwise deal in trees etc., of the forest" except in accordance with Rules I, II and III.
At the hearing of the petition it was further argued on behalf on the State that the right of the petitioner to the land in dispute had been extinguished under section 19 of the Bihar Act IX of 1948, on the publication of a notification by the Government of Bihar under the proviso to section 30 of that Act.
The High Court rejected this argu ment, being of the opinion that extinction could take place only when the final notification under section 30 was published and as this final notification was not published section 19 had no application 731 to the case.
The High Court also held that in a case where a Collector grants permission under Rule 8 of the 1 Bihar Protected Forest Rules the Divisional Forest Officer had no power to interfere by virtue of Rules 1,to 4 of the same Rules.
Accordingly the High Court allowed the petition and made an order quashing the State Government 's order conveyed in their telegram of the 10th June and the order of the Forest Officer dated the let May, by which this Officer had prohibited reclamation of the disputed land by the petitioner.
In this Court, Mr. Jha raised both the points on which the petition was resisted before the High Court, viz., (1) that the petitioner 's right to the land had ceased under section 19 of the Bihar Private Forests Act and (2) that, the order passed by the Forest Officer on the basis: of Rule 4 of the Bihar Protected Forests Rules should prevail over the permission granted by the Collector under r. 8.
Mr. Jha 's first contention on the first point was that when a notification is made under the proviso to section 30, no further notification under section 30 need be made at all.
In our opinion, there is no force in this contention.
The provisions of the Bihar Private Forests Act, 1947 in respect of private Protected Forests are contained in Chapter II of the Act.
The scheme of these provisions is that the State Government on being satisfied that it is necessary in the public interest to apply the ' provisions of the chapter to any private forest, may constitute such forest a protected.
forest in the manner laid down; the first step that has to be taken is the issue of a notification under section 14 declaring that it is proposed to constitute a forest a private protected forest and calling for objections ' of all landlords whose interests are 'likely to be, affected.
The hearing of objections is provided for in section 15, sub section 3 of which section further provides that if no objection is presented or when objection is so ' presented and 732 finally disposed of the Government may issue a notification declaring its decision to constitute the area a private forest and appointing an officer "to enquire into and determine the existence, nature and extent of any rights other than landlord 's rights, alleged to exist in favour of any person in or over any land in the forest".
Section 16 provides that on the issue of such a notification under sub section 3 of s.15 the Forest Settlement Officer shall publish a proclamation fixing a period of not less than three months from the date of such proclamation for claims to be made by all persons as regards rights other than landlord 's rights.
Section 17 empowers the Forest Settlement Officer to enquire into all claims preferred in response to the notification and also into the existence of any rights mentioned in sub s.3 of section 15 and not claimed under a. 16.
Section 22 of this Chapter deals with the procedures for dealing with claims of forest contractors and grantees.
Section 23 provides that in the case of claim to a right in or over any land other than a right of way or right of pasture or a right to forest produce or water course the Forest Settlement Officer shall pass an order admitting or rejecting the same in whole or in part subject to the provisions of sections 25 and 26.
Section 27 gives a right of appeal to any person who has made a claim under section 16 or section 22 against the order passed by the Forest Settlement Officer under as. 22, 23, 24 or 26.
Section 30 provides for the final action to be taken by the Government in the matter of constituting a private protected forest.
The main portion of the section is in these words: "Where the following events have occurred, namely, (a) the period fixed under section 16 for preferring claims has elapsed and all claims, if any, made under sections 16 and 22 have been disposed of by the forest settlement officer, and 733 (b) if any such claim has been made, the period limited by section 27 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer, the State Government shall publish a notification in the Official Gazette specifying.
definitely according to boundary marks erected or otherwise,.
the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest, from the date fixed by the notification and from the date so fixed such forest shall be deemed to be a private protected forest".
It is followed by a proviso in the following words: "Provided that, if in the case of any forest in respect of which a notification under section 14 has issued, the State Government consider that the inquiries, procedure and appeals referred to in this Chapter will occupy such length of time as to cause undue delay in the forest being declared a private protected forest, such delay, in the opinion of the State Government being prejudicial to the public interest, the State Government may, pending the completion of the said enquiries, procedure and appeals, declare by a notifica tion containing the particulars specified in this section, such forest to be a private forest".
It is abundantly clear that the notification under the proviso is not intended to amount to a final constitution of the private forest as a private protected forest.
The notification under the proviso is to be made only ,pending the completion of the said enquiries procedure and appeals".
Quite clearly, these enquiries, procedure and appeals are not stopped the declaration under the proviso.
They have to 734 be completed and it is only after their completion that a notification ban be made by the Government under the main part of the section.
, On a reasonable reading of the section it is therefore abundantly clear that even where the: Government thinks fit to make a declaration under the proviso, this will have effect only so long as the period fixed under section 16 for preferring, claims (i) has not expired;, (ii) claims under ss.16 and 22 have not, been disposed of, (iii) the periods limited by section 27 for appealing from the orders passed in respect of those claims have not elapsed; and (iv) all appeals preferred against such orders have been disposed of.
Turning now to section 19 of this Chapter we find it laying down that "rights (other than landlord 's rights) in respect of which no claim has been preferred under section 16 and of the existence of which no knowledge has been acquired by enquiry under section 17, shall be extinguished, unless before the noti fication under section 30 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under section 16.
" The appellant 's argument is that the words "notification under section 30 is published" includes a notification made under the proviso to that section and that consequently when a notification under the proviso to section 30 has been published all rights other than landlords rights, in respect of which no claim has been preferred and of the existence of which no knowledge has been acquired by an enquiry under section 17, shall be extinguished.
This argument is in our opinion wholly unacceptable.
Considered in the background of the provisions in the Act for claims to be made under section 16, for enquiry into these by the Forest Officer and thereafter for appeals from the decision of the Forest Officer, after the completion of all of which only 'the final notification constituting the private forest a private protected 'forest can be 735 made, it is clear that rights "other than landlord 's rights" in respect of which no claim has been preferred under a. 16 or which have not been disclosed by enquiry under section 17 were intended by the legislature to be extinguished only after the final notification is made.
It is to be noticed that three months ' time from the date of the proclamation under section 16 is to be allowed for making claims.
The enquiry under section 17 can start only after these claims have been made and some more time must elapse before an enquiry can be completed into the existence of rights which have not been claimed under section 16.
A notification under the proviso of section 30 can however be made at any time after the notification under section 14 has issued.
It is meaningless to speak of rights in respect of which no claim has been preferred under s.16 and of the existence of which no knowledge has been acquired by an enquiry under section 17, before the period for the enquiry under section 17 has expired.
Again, there will be no extinction of rights.
under section 19, if the person claiming the rights, satisfies the Forest Settlement Officer that he hid sufficient cause for not preferring the claim within the period fixed under section 16.
The question of thus satisfying the Forest Settlement Officer can clearly not arise before the period fixed under section 16 has expired.
All this clearly shows that the extinction of rights under section 19 can take place only after the final notification under section 30 has been published.
It is necessary to consider next the apparent conflict between the powers of the Officers of the Forest Department under rr. 1 to 4 and the powers of the Collector under r. 8 of the Protected Forest Rules.
Under r. 1 persons who are bona fide residents of Khasmahal lands may cut, convert and remove to their homes for their own domestic use certain trees but the Forest Officer can in his discretion withdraw this privilege Certain other trees as specified in the Rule may 736 be out by such bona fide residents with the previous permission of the Forest Officer.
Under r. 2 the Forest Officer may by an order in writing authorise in certain circumstances villagers of adjacent villages also to cut and remove trees mentioned in r. 1.
Rule 3 provides that the Divisional Forest Officer may grant license to any inhabitant of a town or village in the vicinity of a forest to take trees, timber, or other produce for his own use to any person whatsoever authorising him to fell or remove trees for the purpose of trade on payment of fees at current rates as may be sanctioned by the Chief Conservator of Forests.
Rule 4 on which special reliance is placed on behalf of the State is in these words : "No person shall cut, convert or remove from the said forest or otherwise deal with any trees, timber or other forest produce of the said forest. . except as provided in Rules 1, II and III.
Rule 8 under which the Collector gave permission runs thus : "No land in the said forest shall be cleared or broken for cultivation or any other purpose without the written permission of the Collector".
There is an apparent conflict here between the provisions of r. 4 and r. 8 ; for, while under r. 4 no cutting, conversion or removal of trees can be made except under license issued under r. 3 or permission granted by the Forest Officer under r. 2 or under the provisions of r. 1, all this can be set at naught if a written permission is granted by the Collector for clearing or breaking up the land for cultivation or any other purpose necessarily involving the cutting and removal of trees.
On behalf of the appellant State Mr ' Jha argued that r. 8 has no operation so long as trees are standing and it is only if trees have been cut or removed under the provisions of rr. 1, 2 and 3 and only stumps of those trees are standing that the Collector can give permission for clearing the forest land or breaking it up for cultivation.
We are unable to persuade ourselves that in making 737 these rules the Government intended to give such limited authority only to the Collector.
It is obvious that while Rules 1, 2, 3 and 4 were made under clauses a, b, c and d of section 32, Rule 8 has been made under clause g of section 32 which is for the definite matter of "clearing and breaking up of land for cultivation or any other purpose" in a protected forest.
The reasonable way of reading Rules 1 to 4 and Rule 8 appears to us to be that Rules 1 to 4 apply to the cutting or removal of trees where in spite of such cutting the forest would continue to be a forest; but cutting of trees which is necessary for clearing the land for cultivation or any other purpose is not controlled by Rules 1, 2, 3 or 4 but only by Rule 8.
That seems to us to be the only way of harmonious construction of Rules 4 and 8 and that must, in our opinion, have been intended by the rule making authority.
In the present case therefore when the tenant on the land asked for permission to clear the land for cultivation and it was this clearing which involved the cutting and removal of trees Rules 1 to 4 had no application and Rule 8 under which the Collector acted applied.
It may be mentioned here that though Rule 8 is in the negative form, it is what has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for cultivation or any other purpose with the written permission of the Collector and on the other hand that without such permission no such clearing or breaking up for cultivation or any other purpose shall take place.
The permission given in the present case by the Collector was therefore in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission.
The last argument advanced by Mr. Jha is that the prohibition by the State Government of clearing or breaking up for cultivation or for any other purpose of any land in a protected forest by the notification dated May 29, 1953, under section 30 of 738 the India Forest Act, 1927, must prevail over the permission, given by the Collector.
It is to be noticed that whereas section 30 empowers the State Government inter alia to prohibit such breaking up or clearing for cultivation of any land in a protected forest, section 32 empowers the State Government to make rules to regulate inter alia "the clearing and breaking of land for cultivation or any other purpose" in a protected forest.
Even if the legislature had said nothing else in this matter, it would have been plausible to argue that the prohibition under the notification would yield before any permission given under the Rules under a. 32.
All doubts are however set at rest by section 34 of the Act which runs thus : "Nothing in this Chapter shall be deemed to prohibit any act done with the permission in writing of the Forest Officer, or in accordance with rules made under section 32, or except as regards any portion of a forest closed under section 30, or as regards any rights the exercise of which has been suspended under section 33, in the exercise of any right recorded under section 29".
It follows clearly and necessarily from section 34 that the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in accordance with Rule 8 of the Rules made under section 32.
All the contentions raised in the appeal therefore fail.
We are of opinion that there is no legal authority for the State Government to interfere with the clearing or cultivation of land by the respondent which is proposed to be done in accordance with the written permission granted by the Collector under Rule 8 of the Protected Forest Rules, 1953.
It appears that through some oversight the High Court ordered the issue of a writ of certiorari, though a writ in the nature of mandamus was 739 prayed for.
It is clear that the appropriate writ in the circumstances of the present case is a writ in the nature of mandamus and we modify the order made by the High Court to this extent that a writ in the nature of mandamus be issued directing the appellant Government to cancel its order on the Collector made on June 10, 1954 and restraining the Government and the Forest Officer from inter fearing with the petitioner 's possession over 245.69 acres of land in village Singpur which he possesses as tenant.
The appeal is dismissed with costs.
Appeal dismissed.
| The appellants and two others were tried by the Court of session sitting with a jury for rioting and causing fatal injuries to certain persons.
The jury brought a unanimous verdict of guilty against the appellants.
The Sessions Judge accepted the verdict and sentenced them subject to confirmation by the High Court to suffer the penalty of death.
The reference for confirmation of death sentence and the appeal filed by the appellants against the order of conviction and sentence were heard by the High Court which held that the verdict of the Jury was vitiated on account of misdirection on material questions by the Sessions Judge, and thus disregarded the verdict and proceeded to consider the evidence independently of the verdict and after an elaborate examination of the evidence found the appellants guilty of the offences punishable under section 302 read with 8. 34 of the Indian Penal Code and confirmed the sentence of death.
It was contended that (I) the High Court was not competent to appraise the evidence after discarding the verdict of the jury and to confirm the sentence of death after modifying the order of conviction, (2) where the High Court had held that the verdict was vitiated, on account of misdirection or misunderstanding of law and had set the verdict aside, then with the disappearance of the verdict the order of sentence also dissppeared and it was not open to the High Court to confirm the sentence and the High Court was bound to order a re trial and (3) that the accused were prejudiced when under section 342 of the Code of Criminal Procedure, they were asked complex questions which could not be understood by them. ^ Held, that section 423 of the Code of Criminal Procedure applies to all appeals before the High Court whether from a trial by jury or otherwise and when the High Court finds that the verdict of the jury is vitiated on account of some error of law or misdirection it has full power to deal with the appeal in the manner specified in section 423 of the Code and for that purpose it may appraise the evidence to decide what course it 50 will follow, and was not bound in exercising powers under section 423 to order a retrial; it could exercise any of the powers under section 423(1)(h).
Held further, that the powers under sections 374(1) and 376 of the Code are manifestly of wide amplitude and exercise thereof is not restricted by the provisions of section 418(1) and section 423 of the Code.
Irrespective of whether the accused who is sentenced to death prefers an appeal, the High Court is bound to consider the evidence and arrive at an independent conclusion as to the guilt or innocence of the accused and this the High Court must do even if the trial of the accused was held by jury.
In a case where the death sentence is imposed no sanctity attaches to the verdict of the jury.
The verdict is not binding if the High Court holds on the evidence that the order of conviction is not warranted.
On a reference under section 374 duty is imposed upon the High Court to satisfy itself that the conviction of the accused is justified on the evidence, and that the sentence of death in the circumstances of the case is the only appropriate sentence.
When dealing with a reference under section 374 of the Code the High Court was competent to order a retrial but is not bound to do so in every case tried with jury when the verdict of the jury is found to be vitiated because of error of law or misdirection.
The right of trial by jury is an important right conferred upon accused persons in the trial of certain serious offences.
The question whether the accused having had the benefit of a trial by jury should because of misdirection be ordered to be retried, or his case be considered on the evidence by the appellate could, is one of discretion and not of right.
Held, also, that the failure to comply with the provisions of section 342 of the Code is an irregularity and unless injustice is shown to have resulted therefrom a mere irregularity is by itself not sufficient to justify an order of retrial.
The appellate court must always consider whether by reason of failure to comply with a procedural provision, which does not affect the jurisdiction of the court, the accused have been materially prejudiced.
Abdul Rahim v, King Emperor (1946) L. R. 73 I. A. 77 and Ajmer Singh vs State of Punjab ; , referred to.
|
iminal Appeal No. 67 of 1971.
Appeal by special leave from the judgment & Order dated the 17th July, 1970 of the Gujarat High Court in Crl.
A. Nos. 287 and 128 of 1969.
R. H. Dhebar and R. N. Sachthey, for the appellant.
A. section Qureshi, Vinal Deve and Kailash Mehta, for the respondents.
The Judgment of the Court was delivered by UNTWALIA, J.
There is a locality known as Nani Malokoad in the town of Kaloy, District Mehsena, Gujarat.
In this locality is a road (lane) running north to south.
Bai Fatima, respondent No. 1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of Allarakha Hussemkhan.
He had a younger brother named Gulabkhan Husseinkhan.
The victim of the occurrence is the said Gulabkhan.
Both the brothers had their houses adjacent to each other in this lane facing east.
The northern one was in occupation of and belonged to the deceased and the southern one was of Allarakha.
There are a number of other houses situated around the houses of the two brothers.
One such house is of Sardarkhan Muradkhan facing west abutting the road, two houses north of the house of the deceased.
Jamiyatkhan is the son of Sardarkhan, father in law of the deceased Gulabkhan.
In the month of June, 1968 a complaint. was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha, husband of respondent no.1 was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality.
That had caused friction between the families of the two brothers.
On 27.6.1968 according to the prosecution story there were two incidents in the Angana i.e. space on the road in front of the houses of the parties .one was at 5.30 p.m. and the other at 6.30 p.m.
The, prosecution case is that a she goat of Gulabkhan strayed in the house of Fatima. 'She began giving blows to the goat.
There, were altercations between the members of the families of the, two brothers.
Res pondent no.2.
who is a married daughter of respondent no.1 and her son Liyakat who was 15 years old on the date of occurrence were also present at the time of this quarrel.
They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi a neighbourer and a close relation of Nannubibi Respondent no.1 is said to have come out with a stick from her house, and went to Gulabkhan to strike him.
One Allarakha Rehman a close neighbour came there, caught hold of the stick, quietened respondent No. 1 and sent her back to her house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angana of 995 Jamiyatkhan son of Sardarkhan, father in law of Gulabkhan.
Respondent No. 1 about an hour later went with a stick in her hand and hurled a blow on Gulabkhan.
Nannubibi intervened and got the blow on her right hand finger.
Gulabkhan directed respondent no.1 to go back to her house by gestures of his hand and he also proceeded and pushed her towards her house.
When Gulabkhan reached the Angana of his house, respondent no.1 is said to have put her leg across his legs with the result that he fell down on his back.
Respondent no.2 caught hold of the hands of Gulabkhan.
Respondent no.1 sat on his legs and squeezed his testicles and pulled them.
The boy Liyakat is said to have bitten the deceased on the left shoulder.
Gulabkhan thereafter was made to recline on a cot.
Eventually he.
died of the shock due to the pressing of his private parts by respondent No. 1.
Information was sent to the Police Station.
A complaint of Nannubibi was recorded at about 10.30 p.m.
Liyakat was sent for trial before the Juvenile Court.
Respondent nos.
1 and 2 were tried by the Sessions Judge, Mehsana.
The learned Sessions Judge held the prosecution story to be proved beyond reasonable doubt in all material particulars.
Finding that the injury caused to Gulabkhan in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted respondent no.1 under section 304 Part I of the Indian Penal Code and sentenced her to undergo rigorous imprisonment for 7 years.
She was further convicted under section 323 and was given a concurrent sentence for 3 months under this count.
Respondent no.2 was convicted of an offence under section 323 read with section 114 of the Penal Code and was sentenced to undergo rigorous imprisonment for 3 months.
The respondents filed an appeal in the Gujarat High Court from the order of conviction recorded against them and the State went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respondent no.2 The State appeal was dismissed by the High Court and that of the respondents allowed.
The State came to this Court and obtained special leave from the judgment of acquittal recorded by the High Court in the respondents appeal.
The dismissal of the State appeal by the High Court is final.
The three eye witnesses to the occurrence are P.W.3 Nannubibi, P.W.4 Noorbibi and P.W.6 Jenatbibi.
The latter two are neighbourers and related to Nannubibi.
The Trial Judge believed their evidence.
He also believed the evidence of P.W.7 Gulamanabi Shermohmad a close neighbour of the parties to whom an oral dying declaration is said to have been made by Gulabkhan before his death.
It may be stated here that P.W.8 Rasulbhai was sitting in the Bazar at some distance from the place of occurrence in the evening of the 27th June, 1968.
He got the information at about 9.45 p.m. about the death of Gulabkhan.
He rushed to the Police Station and merely informed about his death.
It is also necessary to note here that respondent no.1 had received some injuries on her person in either of the incidents which took place 996 on the evening of 27th June, 1968.
Prosecution did not explain the injuries on her person but the Trial Judge inferred that they must have been caused in the first incident which took place at 5.30 p.m. and not in the second which was the subject matter of the charge against the respondents.
The High Court has held in favour of the prosecution on the main part of the occurrence, namely, squeezing of the testicles of the deceased by respondent no.1 as a result of which he died.
Yet it has disbelieved the prosecution case in regard to some other aspects.
It has not accepted the prosecution story that there were two incidents in the evening.
Nor has it accepted the version that shortly after the first incident Gulabkhan and Nannubibi had gone to the Angana of Jamiyatkhan.
The, story of falling down of the deceased by the tripping of his legs by respondent no.1 has been discarded by the High Court.
So also the evidence of P.W.7 Gulamnabi.
Even after believing the main part of the occurrence the High Court has exonerated respondent No. 1 of the charges levelled against her and consequently respondent no.2 also on the ground that she must have done so in exercise of her right of private defence in as much as she must have squeezed testicles of the deceased when he was showering blows with a stick on respondent No. 1 in order to protect herself.
In our opinion there are two many conjectures, surmises and contradictions in the judgment of the High Court.
The respondents bad not examined any witness to give any counter version of the occurrence or to justify the assault on testicles of the deceased which resulted in ' his death.
The High Court has said in its judgment : (1) "There is also no doubt that since some days prior to the date of the incident the relations between the deceased and the family of accused no.1 were not cordial." (2) "There is no doubt that a quarrel did arise on that day" (meaning thereby the date of occurrence "between the deceased and accused No. 1 in respect of a goat." (3) "It is very reasonably clear that the squeezing of the testicles of the deceased was in all probability the act of accused no.1" (4) "There is further no doubt that the deceased did die on account of squeezing of his testicles in the evening that day at round about 8.30 p.m." On the findings aforesaid if the claim of right or private defence put forward on behalf of respondent no.1 was untenable as we shall show hereinafter it was wholly so, then it is plain that the High Court ought not to have interferred with the order of conviction recorded by the Trial Court.
Even in face of the said findings the High Court criticized the prosecution case as regards some details of the occurrence or the ,incidents and rejected a good portion of it.
We shall briefly show that the said rejection by the High Court was wholly unjustified.
997 There were two incidents according to the prosecution case which happened in the evening at an interval of about an hour.
High Court says it was not so and says so without any basis.
The prosecution did not stand to gain anything by splitting up the evening incident in two parts.
Even in the First Information Report, Ext.32 recorded at 10.30 p.m. in the night the two incidents were separately narrated.
There was absolutely no reason for the High Court to interfere with the findings of the Trial Court in that regard.
The High Court does not accept the prosecution story that deceased Gulabkhan had gone to the `Angana of Jamiyatkhan and respondent No. 1 went there as an aggressor with a stick in her hand.
This story has been discarded on the ground that it is not mentioned in the First Information Report nor in the statements of the other two witnesses before the police.
We may observe again that the prosecution did not stand to gain anything by unnecessarily or falsely introducing the story of Gulabkhan 's going to the Angana of his father in law.
The main occurrence happened in the Angana of Gulabkhan.
The places are so very near that the story of Gulabkhan going to the Angana of his father in law was not an important one to be remembered by the witnesses to be recited before the police.
It mattered little whether respondent no.1 went as an aggressor to the Angana of the deceased or a bit further North to the Angana of Jamiyatkhan.
High Court also discarded the story of the tripping of the legs of Gulabkhan because it is not mentioned in the First Information Report.
But then it ought to hive been noticed that no such contradiction was to be found in the evidence of P.Ws 4 and 6 in Court and their statements before the police.
It must, therefore.
be presumed that they had given out the tripping story before the police.
The High Court has not thought it safe to rely upon the evidence of the three eye witnesses none of whom was found to be disinterested in the prosecution.
The comment is that Allarakba Rehman and Mansabu who lived in the house opposite to the deceased have not been examined by the prosecution.
According to the prosecution, case the said Allarakha had merely quietened respondent No. 1 in the first incident and Mansabu came after the second incident was over.
In material particulars we find the evidence of the eye witnesses very convincing and natural.
In our opinion the High Court was not justified in thinking that it was not safe to rely on their evidence wholly and specially when the main part of the occurrence which fastened the guilt on respondent no.1 was not disbelieved.
Absence of any details in the statement recorded at the police station on the basis of the information given by P.W. 8 Rasulbhai unnecessarilly led the High Court to remark that no one knew upto 10.00 on as to how Gulabkhan died.
This contradicts the earlier findings of the High Court that he died as a result of the squeezing of his testicles by respondent no.1 Rasulbhai, according to his evidence did not get the details of the occurrence and so did not give any to the police.
998 The High Court has given 3 or 4 reasons for discarding the evidence of P.W.7 Gulamnabi to whom the oral dying declaration is said to have been made by the deceased.
The first reason given by the High Court is that when this witness went near Gulabkhan the three women who claimed to have witnessed the occurrence were sitting near him; none of them related the story to Gulamnabi.
he put a question to Gulabkhan who being in a position to give the answer gave it, it was not necessary for him to talk to the women thereafter.
Gulamnabi was the person who had gone to call Dr. Rao to examine Gulabkhan.
Dr. Rao came at 8.30 p.m. and declared him to be dead.
It was not necessary for Gulamnubi to relate the details of the occurrence to Dr. Rao as he himself had not witnessed it Another reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reason for the death of Gulabkhan.
Having accepted the prosecution story about the cause of his death it was unnecessary to dilate upon the matter any further.
The High Court has not disbelieved the lodging of the complaint before the police on the statement of Nannubibi at 10.00 p.m.
The last reason given is the non examination of Dr. Rao by the prosecution.
His evidence was of no use to it and the comment of the High Court is not, therefore, justified.
We have unhesitatingly come to the conclusion that the Trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents and the occurrence in question forming part of the second incident.
The High Court differed from the view of the Trial Judge on flimsy and unsustainable grounds.
Now we come to deal with the question of right of private defence.
It is no doubt true that the prosecution did not explain the injuries on the person of respondent no.1.
P.W.5 Dr. section C. Masalia who had examined the injuries on the side of the prosecution also examined ' Fatima, respondent no.1 when she was sent to him by the police.
Fatima Bibi had lodged a complaint before, the police which was; found to be a non cognizable offence at about 8.00 p.m. on 27 6 1968.
That is Ext 44.
In this complaint she stated that her young one of the goat had gone in the Angana of Gulabkhan.
Three persons named ' in the complaint were Gulabkhan, Bai bibi, mother in law of Gulabkhan and Nannubibi, his wife.
The two ladies caught hold of her Odhana and began to give her blows.
of kicks and fists Gulabkhan gave stick blows on the right hand and so she fell down on the ground and began to shout.
The injuries found on the person of Fatima Bibi were 5 in number.
Three contusions on the right forearm, one contusion on posteric parietal part of right side of scalp and one contusion on scapular part of right side of back.
The injuries were all of minor character.
In her statement under section 342 of the Code of Criminal Procedure, 1898 respondent No. 1 stated almost the same story and added that Gulabkhan was drunk while he was abusing her.
Neither in Ext.44 nor in the statement under section 342 there was a whisper by by respondent no.1 of her having squeezed the testicles and the private part of Gulabkhan.
Nothing was stated to give any inkling of her having squeezed the testicles of Gulabkhan 999 in exercise of her right of private defence to protect her from further assault.
Nor was any evidence adduced in Court to give any counter version of the occurrence.
No foundation was laid to enable the court to acquit the respondents granting them a right of private defence.
It did require a pure conjecture and imagination to hold the respondents not guilty by extending to them the right of private defence.
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow : (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
Question is in which category the present case falls ? In Munhi Ram and others vs Delhi Administration(1) Hegde, J delivering the judgment of this Court has said at page 458 "It is true that appellants in their statement under section 342 Cr.
P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence.
It is well settled that even if an accused does not plead self defence, it is open to the Court to consider such a plea if the same arises from the material on record see In Re jogali Bhaige Naiks and another A.I,R.
The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
" In the instant case not only the plea of private defence was not taken by the respondents in their statement under section 342 but no basis for that plea was laid in the cross examination of the prosecution witneses or by adducing any defence evidence.
In our opinion the burden of establishing that plea was not discharged in any manner by the respondents even applying the test of preponderance of probabilities in favour of that plea.
There is absolutely no material in the records of this case to lead to any such conclusion.
We do not think that the Trial Judge was right in assuming that respondent No. 1 must have received the injuries in the first incident.
It may well be that she received the injuries in the second incident.
Since prosecution did not come forward to show in what manner she received these (1) 1000 injuries, assumption can be made to the farthest extent in favour of the respondents that respondent no.1 received the injuries with a stick, may be at the hands of Gulabkhan or any other person on his side.
But surely the assumption could not be stretched to the extent it has been done by the High Court.
The High Court is not right in saying that by the tripping of the legs Gulabkhan would have fallen on his face and not on his back.
A man may fall on back or on face depending upon the side and the angle of the tripping.
The other error committed by the High Court is when it says :, "It appears to us to be more probable that while the quarrel was going on in the Angana of the deceased and the deceased was delivering blows of stick on the accused No. 1, she squeezedhis testicles in order to liberate herself from his attack.
It appears that she did so while the deceased was standing and giving blows on her." The deceased was wearing a pant and it is impossible to imagine that the, squeezing of the testicles could be done by respondent No. 1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standing position.
In that position he could have at once.
moved back and liberated himself.
The extent of squeezing done in this case was possible only if respondent No. 1 could sit on his legs after he bad fallen down at his back.
This lends further support to the prosecution story that respondent No. 2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent No. 1 on his legs.
In our opinion, therefore, there was absolutely no basis or material in the records of this case to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence.
Even going to the maximum in favour of the respondents that respondent no.1 got the blows with a stick at the hands of Gulabkhan and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death.
The counter ,attack could in no sense be an attack in exercise of the right of private defence.
In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased before P.W. Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No. 1.
The prosecution case is not shaken at all on that account.
1n our judgment this is a case which falls in the third category 1001 as enumerated above.
In agreement with the Trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt.
For the reasons stated above, we allow this appeal, set aside the order of the High Court and restore that of the Trial Court as against respondent No. 1 as respects her convictions and sentences and as against respondent No. 2 only in regard to her conviction.
It is no use sending the young girl back to jail for a few months.
While maintaining her conviction under section 323/114 of the Penal Code, we reduce her sentence to the period already undergone.
P. B. R. Appeal allowed.
| Section 7 of the Bonus Act provides as to how the direct tax payable by an employer is to be calculated for the purpose of computing the available surplus.
Clause (e) of section 7 enacts that no account shall be taken of any 'rebate ' or 'relief ' or deduction in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act for the development of any industry.
in the case of an industrial company, which is not a company in which public ,arc substantially interested, the Finance Act.
1966 fixed the rate of income tax at 55% on so much of the total income as did not exceed Rs. ten lakhs, on the balance, if any, of the total income 60% and 65% in the case of any other ,company.
In a dispute between its employees and the appellant, which is an industrial company the latter contended that for the purpose of computing the available surplus it was entitled to deduct direct tax at 65% and not 55% which was only a confessional levy amounting to a 'relief ' for the purpose of development.
The Tribunal accepted the contention of the appellant.
The High Court allowed the respondent 's writ petition under article 227 of the Constitution holding that the company being an industrial company could not claim deduction at a rate higher than 55% in calculating the available surplus.
On appeal it was contended that the 10% concession in the rate was given to industrial companies with a view to promote development of industry and as such must be deemed to be a 'relief ' or 'rebate ' in be payment of direct tax contemplated by section 7(e) of the Bonus Act.
Reliance for this had been placed on the speech of the Finance Minister on the budget for the year 1966 67.
Dismissing the appeal, HELD : (1) The company being an industrial company with total income not exceeding rupees ten lakhs the rate of tax under paragraph 1(A)(2)(i) of the Finance Act.
1966 applicable to it was 55% and not 65% of the total income.
[544H 545A] (2) The 'rebate or relief ' in the payment of any direct tax, in order to fall within the purview of section 7(e) of Bonus Act.
must be a rebate or relief "allowed under any law for the time being in force relating.
to direct taxes or under the relevant Finance Act.
for the development of any industry" which is one of the conditions to be satisfied.
In the present case it did not satisfy this condition.
The Finance Act, 1966 did not say that this difference of 10% in the rate of tax applicable to an industrial company and any other company is to be deemed to be a rebate or relief for the development of industry.
No, has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.
[545F H] 3 (a) It was not permissible to use the speech of the Finance Minister to construe the clear language of the statute.
[545C D] (b) As a general principle of interpretation, where the words of a statute are ,plain, precise and unambiguous the intention of the Legislature has to be gathered from the language of the statute itself and no external evidence such as Parliamentary debate , Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more 543 than one meaning or shades of meaning that external evidence as to the evils.
if any.
which the statute was intended to remedy.
or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertain ing the object which the Legislature had in view in using the words in question.
[545D F]
|
Civil Appeal No. 1611 of 1971.
Appeal by special leave from the Judgment and order dated 29 70 of the Judicial Commissioner 's Court Tripura, Agartala in Civil Misc.
1st Appeal No. 4 of 1964.
section V. Gupte, D. N. Mukherjee and G. section Chatterjee, for the appellant.
P. K. Chatterjee and Rathin Das, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
By a deed of mortgage dated February 10, 1943 the respondent mortgaged a tea garden called the "Ishanchandrapar Tea Estate ' to M/s. Das Bank Ltd. On January 19, 1950 the Bank instituted Mortgage Suit No. 2/1950 against 'the respondent on the original Side of the Tripura High Court, for recovering the amount due under the mortgage.
On reorganisation of the Judicial Administration in Tripura, the suit was transferred to the court of the District Judge, Agartala.
On January 20, 1950 the Bank applied for the appointment of a Receiver.
On the District.
Judge directing that the Bank should nominate a Receiver in terms of clause 12 of the mortgage deed, first the Secretary of the Bank and later another employee called Adhir Ranjan Dutta was appointed as the Receiver subject to his furnishing security in the sum of Rs. 50,000.
The Receiver took possession of the estate on 22nd January but since the security was not furnished, the court directed on an application of the respondent that the Receiver should furnish the requisite security within the time allowed to him.
On February 26 1950 the tea garden was damaged by a fire which destroyed over 3,000 tea saplings.
On 28th February, the respondent moved an application asking for damages from the Receiver 358 on the ground that the fire had occurred Due to his negligence.
The respondent also renewed his request that the Receiver be asked to furnish security.
On August 26, 1950 the appellant M/s. Howrah Insurance Co. Ltd. executed a surety bond in the sum of Rs. 50,000 in favour of Shri R. M. Goswami, District Judge, Agartala, his successors successors in office and assigns.
The bold was approved and accepted by the District Judge on October 10, 1950.
By virtue of the powers conferred by the Tripura (Courts) order of 1950 which came into, force on December 31, 1950 the District Judge transferred the mortgage suit to the court of the Subordinate Judge, Agartala.
The transferee court was created under the order of 1 950.
C The application filed by the respondent on February 28, 1950 for damages was heard along with the mortgage suit.
The learned Subordinate Judge decreed the suit on May 31, 1956, but he also allowed the respondent 's application for damages to the extent of Rs. 32,525.
He directed that the Receiver should pay the amount within two months, failing which the amount should be recovered from the security of Rs. 50,000.
Civil Miscellaneous First Appeal No. 22 of 1956 filed by the Receiver against that order was dismissed for default by the Judicial commissioner, Tripura on December 18, 1959.
But, he allowed the respondent 's cross objections and enhanced the damages to Rs. 4],525.
On October 4, 1961 respondent filed in the court of the Subordinate Judge, Execution Petition No. 39 of 1961 against the Receiver and the appellant praying that execution do issue, against the appellant as directed by the Court.
The appellant filed this objections to that petition but the learned Judge rejected the objections and directed that the damages awarded to the respondent be recovered from the appellant.
The appellant filed an appeal against that order but it was dismissed by the learned Judicial Commissioner on June 29. 1970.
This appeal by special leave is directed against that judgment.
Learned counsel appearing on behalf of the appellant has raised two contentions (l) The Subordinate Judge who tried the suit is incompetent to enforce the surety bond executed by the appellant as he is neither the successor nor the successor in office nor the assign of the District Judge; and (2) Under the terms of the bond, the appellant is not answerable for the loss caused to the tea garden by fire.
Both of these contentions turn on the terms of the surety bond and it is therefore necessary to have a look at that bond.
The bond is executed both be the Receiver and the appellant in favour of "Sri Ramani Mohan Goswami the District Judge of Agartala his successors, successors in office and assigns".
By the bond, the executants bound themselves jointly and severally in the whole of the amount of Rs. 50,000 up to the District Judge.
Agartala, his successors, 359 successors in office and assigns.
The bond, though executed on August 26, 1950, relates back to January 22, 1950 being the date when the Receiver took possession of the property.
It is urged that the bond can be enforced only by or at the instance af the District Judge, Agartala, or his successors, successors in office of assigns and the Subordinate Judge, Agartala not being either of these, it is incompetent for him to enforce the bond.
We see no substances in this contention.
The Subordinate Judge of Agartala may not be the successors in office of the District Judge because "successor in office" would mean successor of the District Judge in the post or office of the District Judge.
But the Subordinate Judge, Agartala is, for the purposes of the present proceedings, a successor of the District Judge who was seized of the suit and who transferred it to the Subordinate Judge under the Tripura (Courts) order of 1950.
The surety bond was executed in and for the purposes of the particular proceedings which were pending before the District Judge, in order that the bond should be enforceable at the instance of the presiding officer of the court.
"Successor", therefore, must in the context mean the court which for the time being is seized of the proceedings.
Under section 150 of the Code of Civil Procedure, save as otherwise provided, where the business of any Court is transferred to any other Court, the transferee Court has the same powers and is entitled to perform the same duties as those respectively conferred and imposed by the Code upon the transferor Court.
The surety bond was a part of the proceedings pending before the District Judge and on the transfer of the Suit the entire proceedings, including the bond.
stood validly transferred to the Court of the Subordinate Judge.
Thus, by virtue of section 150, the Subordinate Judge was entitled to exercise the same powers in the matter of the enforcement of the bond as the District Judge himself.
Section 145(c) of the Code of Civil Procedure provides, to the extent material, that where any person has become liable as a surety for the fulfilment of any condition imposed on any person under an order of the Court in any suit or in any proceeding J consequent thereon, the decree or order may be executed against the surety to the extent to which he has rendered himself personally liable, in the manner provided for the execution of decrees.
By the surety bond, the appellant rendered itself liable as a surety for the fulfilment of the conditions imposed on the Receiver under the orders passed by the court.
Therefore, the order for the recovery of damages obtained by the respondent against the Receiver can be executed against the appellant to the extent to which it rendered itself personally liable under the terms of the bond.
There is no substance in the second contention either.
Under the bond, the appellant rendered itself liable "in respect of any loss or.
damage occasioned by any act or default of the Receiver in relation to his duties as such Receiver as aforesaid".
The fire having been caused due to the Receiver 's negligence in the performance of his duties the appellant is liable to make good the loss caused to the tea garden by the 360 fire.
Learned counsel for the appellant however urged that the appointment of the Receiver was limited to the stock in trade, machinery and movables in the tea garden and to the factory premises and since the Receiver owed no obligation in relation to the tea garden, the appellant would not be liable for the loss caused thereto by the fire.
Reliance is placed in support of this argument on the words "as aforesaid" which qualify the words "in relation to his duties".
The surety bond has, undoubtedly, to be construed strictly but it is impossible to accept the contention that the Receiver owed no duty or obligation in respect of the tea garden.
He was put in possession of the tea garden in his capacity as a Receiver and indeed parties had made contentions from time to time as to whether the tea garden was managed by the Receiver economically and efficiently.
The surety bond would therefore cover the loss occasioned to the tea garden due to the Receiver 's default.
It is significant that though the bond was executed six months after the tea garden was damaged by the fire it was given retrospective operation with effect from January 22, 1950 being the date on which the Receiver had taken possession of the mortgaged property including the tea garden.
For these reasons we confirm the judgment of the learned Judicial Commissioner and dismiss this appeal with costs.
V.M.K. Appeal dismissed.
| An inspector of the Delhi Electric Supply Undertaking demanded a bribe for giving the complainant a power connection for his factory.
Information having been given to the anti corruption police a trap was set.
The inspector did not turn up at the appointed time to receive the money, but the appellant, a permanent labourer working under him, came to the complainant 's factory, told him that he had been sent by the Inspector, and that the money should be given to him. 'The complainant, at first, insisted that the inspector himself should come but later gave him the money.
The money was recovered from the appellant and the inspector and the appellant were charged with offences under the Prevention of Corruption Act.
The trial court acquitted the inspector but convicted the appellant under section S(2) read with section 5(1)(d) of the Act, and under section 161 I.P.C., with the aid of the presumption under section 4(1) of the Act.
The conviction was confirmed by the High Court.
Allowing the appeal to this Court, ^ HELD : ( I ) The question whether a government servant receiving money had the requisite incriminatory motive is one of fact.
[353H, 354A] (2) one of the essential ingredients of the offence under section 161, I.P.C., is that the gratification must have been received by the accused as a motive or reward for committing an act or omission in connection with his official functions.
Even if the government servant was incapable of showing any favour or rendering any service in connection with his official duties, he may be guilty; but, the existence of an understanding that the bribe was given in consideration of some official act or conduct is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward as mentioned in section 161, I.P.C. [353GH] (3 ) The appellant being a mere labourer was incapable of showing any favour or rendering any service to the complainant in connection with his official duties.
It had not been shown by the prosecution that he was in any way officially concerned with the installation of poles or the giving of electric connection; nor was it shown that the appellant made any representation, claim or promise, that he would either himself or through his inspector get an official act done for the complainant.
Or that the appellant had demanded bribe from the complainant.
[353A C, F] In the absence of any such circumstances the conduct of the appellant was not incompatible with the role of an innocent carrier of money without the requisite mens rea.
[353E] (4) The charge under section 5(1)(d) also is unsustainable because, it could not be reasonably said that the appellant obtained the money by using corrupt or illegal means or otherwise abusing his official position, as a public servant (5) Section 4(1) of the Prevention of Corruption Act Provides that in the trial of an offence punishable under section 161 or 165, I.P.C., or under cls.
(a) or (b) of 5 5(1) read with sub section
5(2) of the Act, if the prosecution proves that the accused had accepted or obtained a gratification other than legal remuneration the court has to presume that the gratification was accepted or obtained by the accused as a motive or reward as mentioned in section 161, I.P.C. [351 H, 52B] 349 (6) (a) The presumption, however, is not absolute and is rebuttable.
The quantum and nature of proof required to displace the presumption, varies according to the circumstances of each case.
Such proof may partake of the shape of defence evidence adduced by the accused or, it may consist of circumstances appearing in the prosecution evidence itself as a result of cross examination or otherwise.
While the mere explanation given by the accused in his examination under section 342, Cr. P.C., may not b enough the burden on him to negate the presumption may stand discharged, if the effect of the material brought on record, in its totality renders the existence of the fact to be presumed improbable.
The accused may, therefore, rebut the presumption by showing a more preponderance of probability in his favour and it is not necessary for him to establish his case beyond reasonable doubt.
[352 CF]] Mahesh Prasad Gupta vs State of Rajasthan, ; followed. (b) Further, the sole purpose of the presumption under section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offence under section 5(1) and (2) of the Act and section 161, I.P.C. The presumption, therefore, can be used only in furtherance of the prosecution case and not in derogation of it.
[352F G] (c) In the present case.
the statutory presumption being antithetical to the prosecution story, namely, that it was the inspector who demanded the bribe for showing a favour and that the payment was intended for him, could not be availed of by the Prosecution against the appellant.
[354 CD] (7) Nor can the appellant be held guilty of abetting the alleged attempt made by the inspector to obtain illegal gratification.
Intention to aid the conn mission of the crime is the gist of the offence of abetment, and such intention on the part of the appellant is lacking in this case.
It has not been shown that the appellant was present any occasion when the inspector demanded the bribe.
[354 D G] (8) Moreover, the principal accused had been acquitted.
The prosecution having failed to prove that the money had been paid to the appellant pursuant to the demand for a bribe by the inspector, the court cannot make out a new cause for the prosecution and hold that the amount had been.
received by the appellant on his own or for some person other than the inspector.
[355 B, D]
|
Appeal No. 254 of 1962.
572 Appeal by special leave from the Award dated May 1, 1961, of the Industrial Tribunal (111), U.P. at Allahabad in Reference No. 69 of 1959.
G.S. Pathak, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
B. P. Maheshwari, for the respondents.
1962, August 3 The Judgment of the court was delivered by MUDHOLKAR, J.
The only point for consideration in this appeal by special leave from an award of the Industrial Tribunal at Allahabad is whether the "crushing season" of 1958 59 must be deemed to have ended on March 12, 1959 when the actual crushing of sugar cane stopped or on March 16, 1959 when all ancillary operations in the factory came to an end and the entire machinery was at a standstill.
According to the appellants the "crushing season" came to an end on the latter date while according to the respondents who are the employees of the factory it came to an end on the former date.
The importance of determining the date on which the season terminated arises out of the admitted position that only those seasonal workers who are borne on the muster roll of the factory on the day next to the date on which the crushing season ended would be entitled to three days ' clos ure holidays.
It is the case of the respondents that the appellants employ about 1,600 seasonal workers and about 650 permanent workers.
It is common ground that the crushing process terminated on March 12, 1959, and on that day about 1,000 of the 1,600 seasonal workers left for their homes by the evening after receiving all their dues.
The remaining seasonal workers continued to work in the factory till March 16, 1959, and, therefore, under 573 a term of an award of the Industrial Tribunal in reference No. 33 of 53 and dated April 15, 1953, they are entitled to three days ' closure holidays.
The case of the appellants, however, is that the crushing season must be regarded as having ended on March 16, 1959 which was the last day on which the factory was worked and that only those seasonal workers who were borne on the muster roll of the factory on March 17, 1959 would be entitled to three days ' closure holidays.
The 600 seasonal workers who worked till the evening of March 16, 1959, would therefore, according to them not be entitled to closure holidays.
During arguments Mr. Pathak also suggested that the fact that between March 12 and March 16,1959, 600 seasonal workers continued to work in the factory has not been established in this case.
Taking up the last point it is sufficient to point out that the evidence of W. W. 1, B. section Chauhan, who is a member of the executive of the U. P. Trade Union Congress, Kanpur, shows that the seasonal workers other than those who left on the evening of March 12, 1959, were borne on the muster roll of the appellants on March 13, 1959.
His evidence on the point has not been challenged in the cross examination.
Nor have the appellants examined any witness for the purpose of showing how many seasonal workers were borne on the muster roll on March 13, 1959.
The only witness examined by them, Shri K. K. Sinha, who is working as Manufacturing Chemist, has no knowledge about the matter because, as admitted by him in his cross examination, he was not working in the mills in the 1958 59 crushing season.
Since the total number of seasonal workers was 1,600 and nearly a thousand had left on March 12, 1959 the number of those, who continued to work till March 16, 1959 must be six hundred.
We must, therefore.
proceed on the basis that the names of about 600 574 seasonal workers continued to be borne on the muster roll of the appellants on March 13, 1959.
What has to be considered then is what was the date on which the crushing season of 1958 59 ended.
It seems to us clear that the crushing season must be deemed ' to have ended on the date on which the crushing operations in the factory came to an end and not on the date on which the manu facturing processes in the factory came to an end.
We must give to the expression crushing season" its ordinary meaning, unless it is shown that in.
the industry it has acquired some other meaning There was no evidence before the Tribunal to the effect that crushing season" meant the period during which the factory was actually working and not merely the period during which the crushing operations were being carried on.
Clause (3), of the Award of 1953 runs as follows:"All permanent workers and such seasonal employees as are on the factory 's roll on the day following the close of the crushing season will be entitled to the clos ure holidays.
" There is nothing in the Award to indicate that according to the Tribunal "crushing season" meant anything else than the period during which Crushing operations were carried on.
Since, as already pointed out the operations came to an end on March 12,1959 the crushing season must be held to have ended on that day.
Those seasonal workers who were borne on the muster roll on March 13, 1959 would be entitled to, three days, closure holidays.
Agreeing with the Tribunal we therefore, uphold the Award and dismiss the appeal with costs.
Appeal dismissed.
| The appellants employed about 1,600 seasonal workers and about 650 permanent workers.
The cane crushing process terminated on March 1,2, 1959, and on that day about 1,000 of the 1,600 seasonal workers left for their homes by the evening after receiving their dues.
The remaining seasonal workers continued to work in the factory till March 16, 1959.
Under the term of a previous award, they were entitled to three days ' closure holidays.
According to the Appellant the crushing season must be regarded as having ended on ' March 16, 1959, which was the last day on which the factory was worked and that only those seasonal workers who were borne on the muster roll of the factory on March 17, 1959, would be entitled to three days ' closure holidays.
The point for consideration was whether the "Crushing season" of 1958 59 must be deemed to have ended on March 12, 1959, when the actual crushing of sugar cane stopped, or on March 16, 1959.
when all ancillary operations in the factory came to an end and the entire machinery was at a stand still.
Held, that the expression "Crushing Season" must be given its ordinary meaning unless it is shown that in the industry in question it has acquired some other meaning.
There was no evidence, before the tribunal to the effect that "crushing season" meant the period during which the factory was actually working and not merely the period during which the crushing operations were being carried on.
Since the operations came to an end on March 12, 1959, the crushing must be held to have ended on that day, and, therefore, the seasonal workers borne on the muster roll on March 13, 1959, were entitled to three days ' closure holidays.
|
ivil Appeal No. 21 of 1955.
Appeal under Article 133(1)(c) of the Constitution of India against the Judgment and Order dated the 12th January 1954 of the Pepsu High Court in Civil Misc.
No. 182 of 1953.
M. C. Setalvad, Attorney General of India, Veda Vyas and Jagannath Kaushal, (Naunit Lal, with them),for the appellant.
The respondents did not appear.
September 15.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant was a candidate for election to the Legislative Assembly of the State of PEPSU from the Dhuri Constituency, and having secured the largest number of votes was declared duly elected.
The first respondent who is one of the electors in the Constituency filed the petition out of which the present appeal arises, for setting aside the election on the grounds, inter alia, (1) that the nomination of one Mali Singh had been wrongly rejected by the returning officer, and (2) that the ap pellant was guilty of the corrupt practice of bribery.
The Tribunal held that both these grounds were made out, and accordingly set aside the election.
It further recorded a finding in terms of section 99 (1) (a) of the Representation of the People Act No. XLIII of 1951 that the appellant was proved to have committed the corrupt practice of bribery as mentioned in section 123(1) of the Act.
The Appellant thereupon filed in the High Court of Patiala and East Punjab States 450 Union an application under Article 227 attacking the finding of the Tribunal that he was guilty of bribery.
The order of the Tribunal in so far as it set aside his election was not challenged.
By order dated 12 1 1954 the High Court upheld the findings of the Tribunal, and dismissed the application, and by order dated 7 6 1954 granted a certificate for appeal to this Court under Article 133(1)(c).
That is how the appeal comes before us.
On behalf of the appellant, the learned AttorneyGeneral raised two contentions: (1) The finding that the appellant was guilty of bribery was reached in disregard of the mandatory provisions of section 83, and that it was besides open to other legal objections; and (2) the finding recorded under section 99 of the Act was bad, because no notice was given to the appellant, and no enquiry held as required by the proviso to section 99.
This point was not taken in ' the application under Article 227, and was sought to be raised at the time of the argument in the High Court; but the learned Judges declined to entertain it.
(1) On the first question, the complaint of the appellant is that in the election petition the allegations relating to bribery were vague and wanting in particulars, and that the petition should accordingly have been dismissed under sections 83 and 85 of the Act; that the charge that was sought to be proved at the hearing was at variance with the charge as alleged in the petition, and that the Tribunal had erred in giving a finding of bribery on the basis not of the allegations in the petition but of the evidence adduced at the trial.
The allegations in the petition relating to this charge are as follows: "The sweepers of Small Town Committee, Dhuri were each granted good work allowance at Rs. 5 p.m. for three months only during Election days, simply because they happened to be voters in the said Constituency, vide letter No. ST/1(4)/52/20702 dated 7th December, 1951.
All this was done to induce these sweepers to vote for the respondent No. 1, The allowance was against the Rules", 460 The reply of the appellant to this charge was as follows: "The sweepers of Small Town Committee represented to me in writing that their pays should be increased, and they also quoted the pays that the employees of other Small Town Committees and Municipal Committees were getting.
The representation was forwarded to the Secretariat.
The Secretariat examined it on merits, passed legal orders.
Such concessions were also shown to other employees of the various Small Town Committees and Municipal Committees in Pepsu before and after this case.
This was an official act done in the routine and not to induce the sweepers to vote for respondent No. 1".
On these averments, the following issue was framed: "5.
Whether the sweepers of Small Town Committee, Dhuri, were granted good work allowance at Rs. 5 p.m. for three months only during the election days in order to induce them to vote for the Respondent No. 1?" At the trial, the petitioner examined the Darogba of the Small Town Committee (P.W. 28), and five sweepers, P.Ws. 12, 13, 14, 39 and 40, and their evidence was that sometime in November 1951 the appellant came to Dhuri, enquired about the number of sweepers in the service of the Committee, and offered to raise their pay if they would vote for him, that the sweepers thereupon held a meeting and considered the suggestion of the appellant, and then decided to vote for him, if the pay was increased.
It must be stated that the appellant was then Minister for Health, and was in charge of Local Administration.
On 28 11 1951 he passed an order on a memorial sent by the sweepers that their pay would be increased by Rs. 5 per mensem.
Objection to the order was taken by the Department, and thereupon, the appellant passed the modified order dated 7 12 1951 granting good work allowance for a period of three months from December 1951 to February 1952.
The Tribunal accepted the evidence on the side of the petitioner that the appellant offered to increase the salary of the sweepers in 1951, and held that the order dated 461 7 12 1951, granting good work allowance for the election period was the outcome of the bargain come to in November 1951, and that the charge of bribery had been established.
It is contended for the appellant that in the petition there was no mention of the bargain on which the finding of bribery by the Tribunal was based, that the charge in the petition related only to the order dated 7 12 1951, and that accordingly it was not open to the petitioner to travel beyond the petition and adduce evidence in proof of a bargain which had not been pleaded.
This is to put too technical and narrow a construction on the averments.
The charge in the petition was not merely that the appellant had passed the order dated 7 12 1951 but that he had passed it with a view to induce the sweepers to vote for him.
That clearly raised the question as to the circumstances under which the order came to be passed, whether it was in the course of official routine as the appellant pleaded, or under circumstances which were calculated to influence the voters.
Issue 5 put the matter beyond doubt, when it pointedly raised the question whether the grant was "for three months only during the election days in order to induce them (the sweepers) to vote for the respondent No. I".
Under the circumstances, the complaint that the evidence and the finding as to the bargain went beyond the pleadings and should be ignored appears to be without any substance.
It may be that the allegations in the petition are not as full as they might have been; but if the appellant was really embarrassed by the vagueness of the charge, it was open to him to have called for particulars; but he did not do so.
At the trial, the petitioner first adduced evidence, and his witnesses spoke to the bargain in November, 1951.
It is stated on behalf of the appellant that he objected to the reception of the evidence on the question of bargain, as it was not pleaded.
But this is denied by the petitioner in his affidavit filed in the High Court dated 3 12 1953.
Even apart from this, the witnesses on behalf of the petitioner gave evidence on this point on the 8th and 11th 462 November, 15th and 16th December, 1952, and on the 2nd February, 1953.
Then the appellant entered on his defence.
On 26 2 1951 he examined R.W. 4, a member of the Small Town Committee, to rebut the evidence on the side of the petitioner, and himself went into the box and deposed to the circumstances under which the order came to be passed.
Having regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced by the alleged defect in the pleadings.
The contention that is urged for him is that the petition should have been dismissed under section 83 for want of particulars.
This was rightly rejected by the High Court as without force, and we are in agreement with it.
It is next contended that there is no evidence or finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in section 79(2) at the time when the bargain was made.
But the allegation in the petition is clear that the order dated 7 12 1951 was made with a view "to induce the sweepers to vote for the appellant".
The reply of the appellant to this was that the order was made in the course of official routine and "not to induce the sweepers to vote" for him.
Far from there being any specific denial that the sweepers were electors, the reply of the appellant proceeds on the basis that they were entitle to vote.
This objection was not raised before the Tribunal, and, as pointed out by the High Court, P.W. 12 does say in his evidence that he is a voter.
This contention must accordingly be overruled.
Nor is there any substance in the contention that there is no proof that the appellant was a candidate at the time of 'the bargain.
this again is an objection which was not taken before the Tribunal, and on the evidence of the witnesses examined on the side of the petitioner which was accepted by the Tribunal, the appellant would be a prospective candidate as defined in section 79(b) of the Act.
The finding that the appellant is guilty of bribery is therefore not open to attack.
(2) It is next contended that the order of the 463 Tribunal in so far as it recorded a finding that the ap pellant had committed the corrupt practice specified in section 123(1) is bad, as no notice was given to him as required by the proviso to section 99 and no opportunity to show cause against it.
Section 99 runs as follows: "99.
(1) At the time of making an order under section 98 the Tribunal shall also make an order(a) whether any charge is made in the petition of any corrupt or illegal practice having been committed at the election, recording (i) a finding whether any corrupt or illegal practice has or has not been proved to have been committed by, or with the connivance of, any candidate or his agent at the election, and the nature of that corrupt or illegal practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice, together with any such recommendations as the Tribunal may think proper to make for the exemption of any persons from any disq ualifications which they may have incurred in this connection under sections 141 to 143.
Provided that no person shall be named in the order under sub clause (ii) of clause (a) unless(a) he has been given notice to appear before the Tribunal and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the Tribunal, and has given evidence against him, of calling evidence in his defence and of being heard The point for decision is whether it was obligatory on the part of the Tribunal to issue notice under the above proviso to parties to the election petition before recording a finding under section 99(1)(a).
The contention of the appellant is that under section 99 (1) (a) the Tribunal has to record the names of all persons 59 464 who are proved to have been guilty of corrupt or illegal practice, that that would include both parties to the petition as well as non parties, that the proviso requires that notice should be given to all persons who are to be named under section 99 (1) (a), subclause (ii), and that the appellant was accordingly entitled to fresh notice under the proviso.
It is argued that if the language of the enactment is interpreted in its literal and grammatical sense, there could be no escape from the conclusion that parties to the petition are also entitled to notice under the proviso.
But it is a rule of interpretation wellestablished that, "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence".
(Maxwell 's Interpretation of Statutes, 10th Edition, page 229).
Reading the proviso along with clause (b) thereto, and construing it in its set ting in the section, we are of opinion that notwithstanding the wideness of the language used, the proviso contemplates notice only to persons who are not parties to the petition.
The object of giving notice to a person under the proviso is obviously to give him an opportunity to be heard before a finding is given under section 99 (1) (a) (i) that he has committed a corrupt or illegal practice.
This clearly appears from clause (b) of the proviso, which enacts that the person to whom notice is to be given should have an opportunity of crossexamining witnesses who had been examined before and given evidence against him, of calling his own evidence and of being heard.
This is in accordance with the rule of natural justice which requires that no one should be condemned without being given an opportunity to be heard.
The reason of the rule, therefore, requires that notice should be given to persons who had had no previous opportunity in respect of the matters mentioned in sub clause (b) to the pro 465 viso.
Such for example would be witnesses, and possibly agents of the parties, as observed in Nyalchand Virchand vs Election Tribunal(1), though it is not necessary to decide that point, but it cannot refer to parties to the petition who have had every opportunity of taking part in the trial and presenting their case.
Where an election petition is founded on a charge of corrupt practice on the part of the candidate, that becomes the subject matter of enquiry in the petition itself.
, If at the trial the Tribunal came to the conelusion that the charge had been proved, then it has to hold under section 100(2) (b) that the election is void, and pass an order to that effect under section 98 (d).
Section 99 (1) enacts that the finding of corrupt practice under section 99 (1) (a) (i) or naming a person under section 99 (1) (a) (ii) should be at the time of making an order under section 98.
If the contention of the appellant is to be accepted, then the result will be that even though there was a full trial of the charges set out in the petition, if the Tribunal is disposed to bold them proved it has first to give notice of the finding which it proposes to give, to the parties, and hold a fresh trial of the very matters that had been already tried.
That is an extraordinary result, for which it is difficult to discover any reason or justification.
It was argued by the learned Attorney "General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the instance of an accused in a warrant case being given a further opportunity to recall and cross examine prosecution witnesses after charge is framed, and of a civil servant being given an opportunity under Article 311 to show cause against the action proposed to be taken against him.
In a warrant case, the accused is not bound to crossexamine the prosecution witnesses before charge is framed, and in the case of civil servants, the decision that they are entitled to a second opportunity was based on the peculiar language of sections 240(2) and (3) of the Government of India Act, 1935, and Article 311 of the Constitution.
They are (1) [1953] 8 Election Law Reports 417, 421, 466 exceptional cases, and do not furnish any safe or useful guidance in the interpretation of section 99.
The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in section 99 (1) (a) (ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any disqualifications which may have been incurred under sections 141 to 143.
The argument is that the disqualifications mentioned in section 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken under section 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.
The fallacy in this argument is in thinking that notice to a person is requisite for making a recommendation under section 99(1) (a) (ii).
Section 99(1) (a) (ii) deals with two distinct matters naming persons who are proved to have been guilty of corrupt and illegal practices, and recommending whether there should be any exemption in respect of the disqualifications mentioned in sections 141 to 143, and the proviso, properly construed, requires notice only in the former case and not the latter.
It will be noticed that while in cases falling within sections 139 and 140 the disqualification is automatic and immutable, in cases falling within sections 141 to 143 the Election Commission has power to grant exemption under section 144 of the Act.
It is to guide the Commission in exercising its powers under section 144, that the Tribunal is directed in section 99 (1) (a) (ii) to make any recommendations with reference thereto.
The jurisdiction of the Tribunal in respect of this matter is purely advisory.
There is nothing to prevent the Commission from taking up the question of exemption under section 144 suo motu, even though the 467 Tribunal has made no recommendation.
Indeed, there is nothing to prevent the person adversely affected from applying directly to the Commission for exemption.
While, therefore, there is compelling reason why a person should have an opportunity of showing cause before he is named, there is none such when the question is one of recommendation.
As we construe the proviso, it confers no right on any person, party or stranger, to be heard on the question whether he should be recommended for exemption from the disqualifications under sections 141 to 143.
The provision for exemption in section 99 (1) (a) (ii) therefore does not lend any support to the contention of the appellant that notice should be given to parties to the petition under the proviso before they are named.
Reliance was also placed by the appellant on the decision of the Election Tribunal in Kesho Ram vs Hazura Singh(1), wherein it was held by a majority that notice under the proviso to section 99 should be given to the parties to the petition also.
For the reasons given above, we do not agree with the decision of the majority.
Our conclusion is that while the persons to be named under section 99(1)(a)(ii) would include both parties to the petition as well as non parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial, and that, therefore, whether notice should issue under the proviso will depend on whether the person had an opportunity to cross examine witnesses who had given evidence against him and to adduce his own evidence.
This conclusion is in accord with the law in England.
Under section 140 sub clause (1) of the Representation of the People Act, 1949, an election Court has to state in its report the names of all persons who are found guilty of corrupt and illegal practice but "in the case of some one who is not a party to the petition nor a candidate on behalf of whom the seat or office is claimed by the petition", the court has to issue notice to him, give him an opportunity of being (1) (1953] 8 Election Law Reports 320.
468 heard by himself, and calling evidence in his defence.
It was sugested for the appellant that the law as enacted in section 99 makes a deliberate departure from that under section 140(1) of the English Act.
The difference in the wording between the two sections is due to the difference in the arrangement of the topics of the two statutes, and there is no reason to hold that with reference to the substance of the matter, there was any intention to depart from the English law on the subject; nor is there any reason therefor.
In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein.
He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to section 99 before recording a finding under section 99 (1) (a) (ii).
Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing that the reliefs which could be claimed in the election petition under section 84 are those mentioned in section 98, and that action under section 99 (1) (a) is to be taken at the time when the order under section 98 is pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to section 99(1) (a) as well.
This reasoning will not apply to persons who are not parties to the petition, and a notice to them will, be necessary under the proviso, before they axe named.
In the result, all the contentions urged in support of the appeal fail, which must accordingly be rejected.
As the respondent has not appeared to contest the appeal, there will be no order as to costs.
| Where the respondent in an election petition contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars which it was open to him to do and was not found to have been misled or in any way prejudiced in his defence, it was not open to him to contend that the petition was liable to be dismissed for non compliance with the provisions of section 83 of the Act.
Clauses (a) and (b) of the proviso to section 99 of the Representation of the People Act read together leave no scope for doubt that clause (a) contemplates notice only to such persons as were not parties to the election petition and it is, therefore, not obligatory on the Tribunal under cl.
(a) to issue notices on such persons as were parties in order that it may name them for disqualification under sub clause (ii) of section 99(1)(a) of the Act.
Clause (b) to the proviso obviously has the effect of excluding such persons as have already had the opportunity of cross examining witnesses, calling evidence and of being heard, which the clause seeks to afford.
The Indian and the English Law on the matter are substantially the same.
Kesho Ram vs Hazura Singh, [1953] 8 Election Law Reports 320, overruled.
The jurisdiction that sub clause (ii) of section 99(1)(a) of the Act confers on the Tribunal for making recommendation for exemption 458 from disqualifications mentioned in sections 141 to 143 is purely advisory.
Where it omits to do so, aggrieved parties have access to the Election Commission which under section 144 has the power to act suo motu.
No person, be he a party or a stranger, has a right to be heard by the Tribunal on the question of such exemption and, therefore, no question of any service of notice under the proviso in this regard can arise.
Even supposing that the proviso requires notice on a party to the election petition, the notice to him of the election petition itself can be treated as a notice under the proviso.
|
Appeals Nos. 2136 and 2295 of 1966.
Appeals from the judgment and order dated February 2, 1965 of the Bombay High Court, Nagpur Bench in Special Civil Applications Nos. 246 of 1964 and 84 of 1963 respectively.
G. B. Pai, P. C. Bhartari, J. B. Dadachanji, 0.
C. Mathur and Ravinder Narain, for the appellant (in C.A. No. 2136 of 1966).
section V. Gupte, C. N. Nagle and A. G. Ratnaparkhi, for the appellant (in C.A. No. 2295 of 1966).
M. C. Bhandare, F. P. Sathe, Praveen Pareek, Vineet Kumar and Indira Jai Singh, for respondents Nos.
131 to 142, 144 to 478, 480 to 488, 490 and 492 (in C.A. No. 2136 of 1966).
The Judgment of the Court was delivered by Mitter, J.
The main question in these two appeals by certi ficate is, whether the Labour Court bad jurisdiction to entertain the application for lay off compensation under section 33 C(2) of the Industrial Disputes Act.
The appellant in the first appeal is a 582 limited company which is now under liquidation while the appellant in the second is a partnership firm, the respondents in the two appeals being the Labour Court and different groups of workmen.
The facts are as follows.
In Hinganghat there was a textile mill known as R. B. Bansilal Abirchand Mills which used to employ about 1000 men.
The mill was owned by the firm, the appellant in the Second appeal.
A fire broke out in the mill on March 27, 1959 doing appreciable damage to some of the machines.
The employers put up a notice under their Standing Order No. 19 on March 28, 1959 to the effect that the fire of the previous night had caused heavy loss and extensive damage to the departments rendering the mill 's working impracticable until necessary repairs and adjustments were carried out.
The employees were however to note that the folding and workshop departments would continue to work as usual and notice of resumption of mill 's working would be posted after necessary adjustment and repairs were carried out.
This was followed by a second notice issued on April 2, 1959 to the effect that the pre liminary survey of the fire have in conjunction with the insurance companies had shown that over 60 per cent of the machines in the carding.
fly frame and Ring frame departments had been damaged and that the damage to the bulk of these machines was such that they might require complete replacement.
It was further announced that in the circumstances the Management had no alternative but to declare stoppage of work of all the productive departments of the mills.
Although it is not possible to be precise as to the extent of the damage caused, a fair idea of it can be had from a letter of Hukumchand Insurance Company Ltd. dated August 28, 1959 stating that the loss to buildings, machinery and accessories had been determined at Rs. 22,624/ by the surveyors.
It appears that on 27th April 1960 the representatives of the insurance companies had agreed to re assessment increasing the figure for repairs to Rs. 37,420/ .
The third notice put up by the firm on April 29, 1960 gave no indication of the date of completion of the repairs.
On September 13, 1960 the firm notified that the departments of the mills which had remained unproductive since 28th March, 1959 were expected to commence working on or about 30th September, 1960.
The firm did not however work the mills in terms of the last notice but transferred the same to the company which had been incorporated on 8th December, 1959.
It appears that the consideration for the transfer was Rs. 34,75,000/ made up of 583 Rs. 11,50,000/ being the value of the immovable properties and Rs. 23,25,000/ being the value of movable properties.
Compared to the second figure, the damage to the machinery as assessed by the insurance companies is insignificant.
The first notice of 28th March, 1959 brings out the fact that the work in the mill as a whole was not.
brought to a stand still and that it was to continue as usual in the folding and workshop departments.
According to the second notice, the preliminary survey had shown that over 60 per cent of the machines in only three departments, namely, carding, fly frame and ring frame, had been damaged and that complete replacement of some of the above might be necessary.
The notices do )not make out the case that the damage was such that it was not possible to run the mills it all.
Towards the end of 1961 and the be inning of 1962, respon dents 2 to 346 in Civil Appeal No. 2295 of 1966 presented applications under section 33 C(2) of the Industrial Disputes Act to the Labour Court at Nagpur claiming to have been laid off from 28th March 1959 to 30th September, 1960.
The appellants in the second appeal filed a written statement before the Labour Court contending inter alia that the Labour Court had no jurisdiction under section 33 C(2) and that the parties had to work out their rights within the four corners of the State Act i.e. the C.P. and Berar Industrial Disputes Settlement Act, 1947.
By order dated 30th November, 1962 the preliminary objection as to jurisdiction of the employers was rejected by the Labour Court.
On this, the appellants preferred an application under article 226 of the Constitution of India before, the Bombay High Court.
By a common judgment rendered on 25th August, 1962 the High Court rejected the contentions of the appellants that the claim under the Industrial Disputes Act was not maintainable because of the operation of the State Act and further held that the Labour Court was competent to adjudicate on the merits of the claim of the workers even where the employer disputed not only the jurisdiction of the said court but also disputed that there was any lay off as claimed and that the applicants were not workmen within the meaning of the Act.
The appellants who were petitioners before the High, Court did not proceed further in the matter by applying for a certificate that the case was fit for appeal to this Court.
By order dated November 30, 1962 the Labour Court dismissed as barred by the principles of res judicata 125 applications of some of the workers who had previously applied to the Labour Court at Bombay and whose applications had been subsequently dismissed by the Labour Judge, Bombay on the ground of lack of jurisdiction under section 33 C of the Industrial Disputes Act.
The claim dismissed related to the period between March 28, 1959 and May 584 2, 1960.
The Labour Court allowed the claims relating to the period from May 3, 1960 to September 30, 1960 and ordered the issue of certificates of recovery under section 33 C of the Act.
Respondents 2 to 493 in Appeal No. 2136/1966 filed appli cations under section 33 C in the Labour Court at Nagpur claiming lay off compensation for the period 28th March, 1959 to September 30, 1960.
The Labour Court held by order dated February 29, 1964 that there had been a lay off within the meaning of section 2(kkk) of the Industrial Disputes Act and that the employees were entitled to compensation for the full period of 18 months but workers who were "badli" workers were not entitled to such compensation.
The appellants in both the appeals preferred writ petitions before the High Court of Bombay for quashing the order of the Labour Court.
The two writ petitions were disposed of by the High Court by a common judgment on February 2, 1965.
Before the High Court four main points were raised, namely 1.
Whether having regard to the circumstances and the established facts there had been a lay off within the meaning of the expression in section 2(kkk) ? 2.
If there had been a lay off, whether compensation under section 25 C read with section 25 E of the Act was payable to the workers, also whether the workers were not entitled to compensation because of non fulfilment of conditions prescribed in section 25 E ? 3.
Whether badli workers were entitled to lay oil ' compen sation? and 4.
Whether the quantum of compensation would be governed by the first proviso to section 25 C or whether section 25 C(ii) would be applicable entitling the workers to compensation for the full period of the lay off i.e. 28 3 59 to 30 9 1960 ? On the first question the High Court held that "by every indication and circumstance and by express declaration of its management it was a running industry", meaning thereby that there was no closure.
On the second question, the High Court held that the Labour Court should have considered whether the workmen had proved that they had presented themselves for work or not in terms of section 25 E to be able to claim compensation under section 25 C, excepting with regard to three workmen who cave clear evidence on the point.
It also held that badli labour were not entitled to lay off compensation.
It turned down the contention that compensation was claimable only in terms of the Standing Orders of the Mill.
In the result the High Court remanded the 585 matters 'back to the Labour Court for recording fresh evidence on behalf of both the parties on the following issue : Do the applicants prove that they presented themselves for work at the appointed time at least once a day within the meaning of section 25 E(ii)? On the applications of the appellants, the High Court granted certificates under article 133(1) (a) of the Constitution.
Before us learned counsel for the respondents Mr. Bhandare sought to resist the main contention of the appellants by urging that the decision of the High Court in 1962 operated as res judicata in the present appeals.
He said that it was open to the appellants to challenge the conclusion of the High Court arrived at in 1962 by moving the High Court by an application for the issue of a certificate of fitness for appeal to this Court and in the event of refusal thereof, to ask for special leave of this Court.
In the absence of such applications the determination of the High Court in 1962 had become final and the question as to jurisdiction could not be canvassed again.
We do not think it necessary to go into this question as the matter can be disposed of even on the basis that it is open to the appellants to raise the question of jurisdiction before this Court although the point was not expressly taken in the grounds for leave to appeal to this Court before the High Court.
The substantial point of Mr. Gupte appearing for one set of appellants was that it being the case of the employers that there had been a closure of the mills the dispute could not be adjudicated upon by a Labour Court and was entertainable only by an Industrial Tribunal under the provisions of section 10(1) (d) of the Act.
Mr. Gupte drew our attention to various sections of the Act in support of his contention that an "industrial dispute meant primarily a dispute or difference between employers on the one hand and employees on the other connected with the employment or non employment or the terms of employment etc.
of any person.
He urged that the basic underlying idea was that to be an industrial dispute the dispute had to be one which affected the employee,; , is a class as pitted against their employers.
He argued that individual workman could only approach the Labour Court for lay off compensation when prima facie there was no question of closure of the industry by the employers and drew our attention to the definition of 'lay off ' ins.2(kkk).
According to him in a situation like the present where the inability on the part of the employer to give employment was not limited to a handful of persons but extended to the employees wholesale arising out of a calamity it could not be said that there had been a lay off of the employees.
Although the word 'closure ' is not defined in the Act, counsel 586 argued that the expression would aptly describe the condition prevailing in the mills as a result of the fire on March 27, 1959.
We find ourselves unable to accept Mr. Gupte 's contention.
We may in this connection refer to the relevant provisions in the Act.
The authorities under the Act are specified in different sections of Chapter II containing sections 3 to 9.
Under section 7 it is open to the appropriate Government by notification in the Official Gazette constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matters specified in the Second Schedule and for performing such other functions as may be assigned to them under the Act.
Under section 7 A the appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule.
In the Second Schedule are set forth certain matters in items 1 to 5 which are within the jurisdiction of a Labour Court and item 6 gives the Labour Court jurisdiction to deal with "all matters other than those specified in the Third Schedule".
The Third Schedule contains 11 items of which item 10 reads : "Retrenchment of workmen and closure of establishment".
Lay off is not expressly covered by either of the two Schedules.
It would therefore be a matter covered by the Second Schedule tinder item 6 thereof.
section 10 (1) (c) enables the appropriate Government when it is of opinion that an industrial dispute exists or is apprehended inter alia, to refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule to a Labour Court for adjudication.
So far as an Industrial Tribunal is concerned,, the appropriate Government may under section 10(1)(d) make reference to it not only in cases covered by the Second Schedule but also those included in the Third Schedule except that when the dispute relates to any matter in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it thinks fit, make a reference to a Labour Court tinder cl.
According to Mr. Gupte, Chapter V A of the Act introduced in the year 1953 providing for claims being preferred by individual workmen to compensation could only be resorted to when the dispute was such as would not call for a reference under section 10 (1) (d).
He urged further that it being open to the Central Government to amend the Second and the Third Schedules by issue of notification under section 40 of the Act, so long as the said Schedules stood unaltered, it should be presumed that the legislature did not intend a Labour Court to exercise its jurisdiction in cases where there was 587 a serious question of closure of an establishment put forward by the employers.
All this, argued counsel, went to show that if the essential nature of the dispute was a difference between the employer on the one hand and a very large body of workmen on the other, the employer making an assertion involving a matter covered by the Third Schedule to the Act, it would not be open to the workmen to prefer claims individually under section 33 C.
The ambit of section 33 C has been examined by this Court on a number of occasions and reference may usefully be made to some of the authorities in this connection to find out whether the Labour Court was within its jurisdiction to entertain the applications which were followed by the writ petitions to the Bombay High Court.
in Central Bank of India Ltd. vs P. section Rajagopalan(1) the legislative history of section 33 C was gone into at length and the conclusion of this Court on the scope thereof was as follows (see p. 150) "The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so inserted section 33 A in the Act in 1950 and added section 33 C in 1956.
These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to section 10(1) of the Act, or without having to depend upon their Union to espouse their cause.
Therefore, in construing section 33 C we have to bear in mind two relevant considerations.
The construction should not be so broad as to bring within the scope of section 33 C cases which would fall under section 10(1).
Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under section 10(1).
These disputes cannot be brought within the purview of section 33 C. Similarly, having regard to the fact that the policy of the Legislature in enacting section 33 C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen.
" Turning down the contention put forward on behalf of the em ployers there that computation under section 33 C(2) would only be (1) ; 588 possible where the right of the workman to receive the benefit was not disputed, it was said : "The claim under section 33 C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry might be held to 'be incidental to the main determination which has been assigned to the Labour Court by sub section
As Maxwell has observed " where an Act confers jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its executions" Accordingly it was held that section 33 C(2) took "within the purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers".
Following the above decision, it was held in Mining Engineer vs Rameshwar(1) that sub section
(2) of section 33 C was not confined to cases arising under an award, settlement or even under the provisions of Chapter V A of the Act and the benefit provided in the bonus scheme under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 would be covered by sub section
Section 25 C provides for the measures of compensation to be awarded in cases of lay off of workers.
section 25 F of the Act however provides inter alia that no compensation shall be paid to a workman who has been laid off if he does not present himself for work at the establishment at the appointed time during the normal working hours at least once a day.
The claim to compensation of every workman who is laid off is one which arises under the statute itself and section 25 C provides for a benefit to the workman which is capable of being computed in terms of money under section 33 C(2) of the Act.
The scheme of the Act being to enable a workman to approach a Labour Court (oil computation of the compensation claimed by him in terms of section 25 C of the Act he is not concerned to see whether other co workers will or will not adopt the same course.
The fact that a number of workers make claims of identical nature i.e. to compensation for lay off, arising out of the same set of facts and circumstances cannot make any difference to the individual workman who prefers the claim.
The mere fact that a large number of persons makes a claim of the same nature against the employer, does not change (1) [1968] 1 S.C.R. 140.
589 the nature of the dispute, so as to take it out of the pale of section 7 of the Act and render the dispute one which can only be dealt with by an Industrial Tribunal to which reference can be made by the appropriate, Government.
Reference was however made to the decision of U.P. Electric Supply Co. vs R. K. Shukla(1) in aid of the contention for the appellants that if the dispute touches a matter in the Third Schedule the Labour Court will not have jurisdiction to.
deal with it.
In this case the State Electricity Board, U.P. took over the undertaking of the company from September 16, 1964 in exercise of power under sec.
6 of the and under the provisions of the appellants ' licences.
As a result thereof, the company ceased to carry on the business of generation and distri bution of electricity thereafter.
On September 16, 1964 the Board issued letters of appointment to the employees of the appellant in the posts and positions which they had previously held.
According to the respondents they were not given credit for their past services with the company.
All the workmen of the two undertakings were taken over in the employment of the Board with effect from September 17, 1964.
443 workmen employed in the Allahabad undertaking filed applications before the Labour Court under section 6 H(2) of the U.P. for payment of retrenchment compensation and salary in lieu of notice.
The orders for payment of retrenchment compensation were resisted by the company inter alia on the ground that the workmen were )not in fact retrenched and in any event since they were admitted to the service of the Board on terms not less favorable than those enjoyed before, the company was under no liability to pay retrenchment compensation and the Labour Court was incompetent to entertain and decide the applications for awarding such compensation.
On the above facts the Court in the appeal by special leave observed "the Company had expressly raised a contention that they had not retrenched the workmen and that the workmen had voluntarily abandoned the Company 's service by seeking employment with the Board even before the Company closed its working.
" Reliance was however placed on certain passages in the judgment at p. 513 and at p. 517 which according to counsel for the appellants went to show that when the factum of retrenchment is questioned, there is a dispute which is 'exclusively within the competence of the Industrial Tribunal.
These observation cannot be considered binding on us as all the aspects were not placed before the Court then.
Reference was also made to the case of Ramakrishna Ramanath vs Presiding Officer, Nagpur(2).
In that case the appellant bad (1) [1970] 1 S C.R. 507.
7 L643 Sup.
CI/72 (2) 590 issued a notice in writing on the 1st July 1958 following the issue of a notification by the Government of Bombay under section 5 (2) read with section 5(1) of the to the effect that it had been forced to close its factory as from the 1st of July 1958 by the action of the Bombay Government in issuing the said notification inasmuch as minimum rates of wages made payable as from 1st July, 1958 were so excessive and unworkable that it was impossible for any employer to give effect to them and the notification had made the working of the business a financial impossibility.
The workers were also informed that the closure of the business would continue as long as the notification dated 11th June, 1958 continued in force.
The Government of Bombay withdrew the notification after some time and the appellants started to work the factory from 10th August, 1958 taking in all employees who were there before 1st July.
The respondent No. 2 put in an application before the Presiding, Officer, Labour Court Nagpur on 5th November, 1963 claiming Rs. 334.80 on account of retrenchment compensation and one month 's pay in lieu of notice.
The appellant put in its written statement, inter alia, contending that the said respondent was not an employee but an independent contractor and that there had been no closure of the business to attract section 25 FFF of the Act and that in any event the dispute could not be referred to a Labour Court.
In the appeal by special leave to this Court it was contended, inter alia, (a) that the dispute did not fall within the jurisdiction of the Labour Court but within that of an Industrial Tribunal, (b) that there was really, no closure of the appellant 's business but only a lock out or a temporary stoppage of work not attracting the operation of section 25 FFF and (c) that in order that the respondent could claim.
the benefit of 25 F it was obligatory on her to show that she had worked for 240 days in each year of service for which the claim was made.
This Court found that the appellant had not taken the plea in its written statement and that there had been a lay off or a lock out and that it had only submitted that the closure in accordance with the notice did not fall within the scope of section 25 FFF of the Act.
By issues 6 and 7 the appellant raised questions as to whether the closure had resulted in the retrenchment of the applicant and whether the closure was beyond the control of the employer.
No dispute was raised about the factum of closure.
Strangely enough it was urged before this Court that "there could be no closure because the appellant was ,merely protesting against irresponsible action of the Government action and had no intention to close the business permanently.
" The Court found that the question of lock out was not mooted when the issues were settled nor had any plea been taken that there had been a temporary cessation of work under Standing Order No. 11.
In our view, the observations in this case do not help the appellants before us.
591 In Sawatram Mills vs Baliram(1) the claim of the workmen for lay off during a certain period before the Second Labour Court Bombay was resisted inter alia on the ground that the said court had no jurisdiction as the dispute fell to be tried under the C.P. and Berar Industrial Disputes (Settlement) Act, 1947, and, secondly, the application under section 33 C was incompetent because it was not a claim for money due and calculations had to be made for ascertaining the sum due.
On a construction of the sections of the industrial Disputes Act this Court held that : "Compensation for lay off could only be determined under Chapter V A of the and the workmen were entitled under section 3 3 C (1) to go before the Second Labour Court to realise moneys due from their employers under Chapter V A." The Court also negatived the contention that the did not apply but the C.P. and Berar Industrial Disputes (Settlement) Act did as the State Act made no mention of lay ,off or compensation for lay off.
The other argument was rejected following the judgment in Kays Construction Co. (P) Ltd. vs State of U.P. & ors.
In substance the point urged by the appellants was that if a claim is made on the basis of a lay off and the employer contends that there was no lay off but closure, it is not open to a labour court to entertain an application under section 33 C(2).
The more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous application , before the Labour Court for computation of benefit in terms of money.
As has been said already, the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay off.
If it took the view that there was a lay off without any closure of the business it would be acting within its jurisdiction ' if it awarded compensation in terms of the provisions of Chapter V A.
In our opinion the High Court 's conclusion that "In fact the business of this Company was continuing.
They in fact continued to employ several employees.
their notices say that some portions of the mills would continue to work" was unexceptionable.
The notices which we have referred to can only lead to the above conclusion.
The Labour Court 's jurisdiction could not be ousted by a mere plea denying the workman 's claim to the computation of ,lie benefit in terms of money: the (1) [1966] I S.C.R, 764.
(2) ; 592 Labour Court had to go into the question and determine whether, on the facts, it had jurisdiction to make the computation.
It could not however give itself jurisdiction by a wrong decision on the jurisdiction plea.
Appearing for the appellant in Civil Appeal No. 2136/66 Mr. Pai contended that his clients ' liability would only commence after the 1st October, 1960 when it started to run the mill.
This point had not been canvassed before the High Court and consequently we cannot entertain it.
In the second case Mr. Gupte argued that although his client did not raise the question of liability before, there was no question of any concession and he should be allowed to contest his liability on the basis of the application preferred for urging additional grounds before this Court.
As this point was not urged in the court below this application must be refused.
The last point urged was that in view of Standing Orders 19 and 21 the quantum of compensation had to be scaled down or measured in terms of the Standing Order 19 the employer could, in the event of fire, breakdown of machinery etc.
stop any machine or machines or department or departments wholly or partially or the whole or a part of the establishment for any period, without notice and without compensation in lieu of notice.
Under Standing Order 21, any operative played off under Standing Order 19 was not to be considered as dismissed from service but as temporarily unemployed and was not to be entitled to wages ' during such unemployment except to the extent mentioned in Standing Order No. 19.
The High Court rightly turned down the contention in view of section 25 J of the Act under which the provisions of Chapter V A are to have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the .
These appeals were originally heard by a Bench of five, Judges including section C. Roy, J. who expired a few days back.
The above judgment was concurred in by our late colleague.
We however gave a further hearing to the parties at which nothing was addressed to us to make us change our opinion already formed.
In the result, the appeals fail and are dismissed with costs.
One set of hearing fee.
S.C. Appeals dismissed.
| A textile mill in Madhya Pradesh employed about a thousand workers.
The mill was owned by a firm, the appellant in the Second Appeal.
A fire broke out in the Mill doing appreciable damage to some of the machines.
From a letter of the Insurance company, the extent of the damage caused, was ascertained to be about Rs. 37,420/ .
In terms of the last notice given by the employers the mills did not commence work but instead, the management transferred the mills to the company which had been incorporated on 8th December 1959.
From the facts it was clear, that the damage to the machinery was insignificant as against the total assets transferred to the company and the damage was not such that it was not possible to run the mills at all.
Respondents 2 to 346 in the Second Appeal applied under section 33C(2) of the Industrial Disputes Act to the Labour Court claiming lay off compensation for the period they remained idle.
The Labour Court held that there had been a lay off within the meaning of section 2(K KK) of Industrial Disputes Act and except 'badli ' workers the employees were entitled to compensation for the full period of 18 months.
The appellants in both the appeals, filed writ petitions before the High Court for quashing the order of the Labour Court and the High Court raised several issues and ultimately remanded the matters back to the Labour Court for recording fresh evidence as to whether the applicants presented themselves for work at the appointed time at least once a day within the meaning of section 25E(ii).
On the application of the appellants the High Court granted certificates under article 133 (1) (a) of the Constitution.
The point urged by the appellants was that if a claim is made on the basis of a lay off and the employer contends that there was no lay off but closure it is open to a labour court to entertain an application under section 33C(2).
It is more so when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the labour court for computation of benefit in terms of money.
Dismissing the appeals, HELD : (i) From the facts and circumstances of the Case, it was clear that the business of the company was continuing.
They, in fact, continued to employ several employees and their notices say that some portion of the mills would continue to work.
The Labour Court 's jurisdiction could not be ousted by a mere plea denying the workmen 's claim to the computation of benefit in terms of money.
The Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay off.
If it took the view that there was a lay off, it would be acting within its jurisdiction if it awarded compensation in terms of the provisions in Ch.
The High Court is right in upholding the decision of the Court.
[591 E H] 581 (ii) Section 33C(2) takes within the purview, rases of workmen who claim that the benefits to which they were entitled should be computed in terms of money, even though the right to the benefit on which their claim is based, is disputed by their employers.
In other words, the Labour Court may enquire into all such acts or disputes which are incidental to the main dispute, [588 C D] (iii) Section 25C provides for the measure of compensation to be awarded in cases of lay off of workers.
The claim to compensation of every workman who is laid off is one which arises under the statute itself and section 25C, provides for a benefit to the workman which is capable of being computed in terms of money under section 33C(2), of the Act.
The scheme of the Act is that an individual workman can approach a labour court for computation of compensation in terms of section 25C of the Act and he is not concerned to see whether other co workers will adopt the same course or not.
The fact that a number of workers make claims of identical nature cannot make any difference to the individual workman who prefers the claim, The mere fact that a large number of persons makes a claim, of the same nature against the employer does not change the nature of the dispute so as to take it out of the pale of section 7 of the Act and render the dispute one which can only be dealt with by an industrial tribunal.
[588 E H] Central Bank of India Ltd. vs P. section Rajagopalan, ; , followed.
, Mining Engineer vs Rameshwar, [1968] 1 S.C.R. 140, U.P. Electric Supply Co. vs R. K. Shukla, ; , Ramkrishna Ramnath vs Presiding Officer, Nagpur, and Sawatram Mills vs Baliram, [1966] 1 S.C.R. 764, referred to and distinguished.
|
Appeal No. 342 of 1972.
Appeal by special leave from the judgment and order dated the 16th September, 1972 of the High Court of Bombay in Civil Revision No. 263 of 1967.
F. section Nariman, Additional Solicitor General of India, P. C. Bhartari, B. R. Zaiwala and B. section Bhesania, for the appellant.
Anil B. Divan, K. section Cooper, Vasant C. Kotwal, section C. Agarwal and P. D. Sharma, for the respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
A small cause involving a petty claim of Rs. 1147.42 has sailed slowly into the Supreme Court by special leave.
Both sides The Bombay Port Trust, appellant, and the New Great Insurance Co. (a nationalised institution), the contesting respondent agree before us that while there is only a short point of law in the case, a large section of the business community, as well as the Port Trust, are affected by the ambiguity of the legal situation and an early pronouncement by this Court on the law of limitation applicable to consignee 's actions for short delivery by the Port Trust is necessary.
Is the period so brief as six months in terms of section 87 of the Bombay Port Trust Act, 1879 (hereinafter called the Act), and if so, does time begin to run within around a week of the landing of the goods (suggested by section 6lA) of the Act ? Or, alternatively, does the longer spell allowed by the avail the plaintiff and the terminus a quo start only when the owner has been finally refused delivery ? Although the Court in this case is enquiring whether the little delay alleged legally disentitles the plaintiff to claim the value of the lost goods, it is a bathetic sidelight that the judicial process has limped along for 15 years to decide in this small, single point commercial cause, whether a little over seven months to come to court was too late.
Pope Paul in opening the judicial year of the Second Roman Rota pontificated that delay in dispensing justice is 'in itself an act of injustice '.
Systemic slow motion in this area must claim the nation 's 399 immediate attention towards basic reformation of the traditional structure and procedure if the Indian Judicature is to sustain the litigative credibility of the community.
Indeed, even about British Justice Lord Devlin 's observations serve as warning for our court system : "If our business.
methods were as antiquated, as our legal methods, we would be a bankrupt country.
" The problem that falls for resolution by this Court turns on the subtle semantics alternatively spun by counsel on both sides out of the words "any thing done, or purporting to have been 'done, in pursuance of this Act, .
after six months from.
the accrual of the cause of such suit.
True to Anglo Indian forensic tradition, a profusion of precedential erudition has been placed for our consideration in the able submissions of the learned advocates on both sides.
Intricacy and refinement have marked the arguments and meticulous judicial attention is necessitated to discover from the tangled skein of case law the pertinent principle that accords with the intendment of the statute, the language used, the commonsense and justice of the situation.
A relevant diary of facts and dates will help focus attention on the primary legal question.
The first plaintiff became entitled to claim a consignment of 53 bundles of mild steel plates despatched by a Japanese exporter to be delivered at the port of Bombay.
The goods were discharged in the docks into the custody of the.
Bombay Port Trust (the defendant, and now the appellant) on September 12, 1959.
The goods had been insured and the second plaintiff is the insurer.
Within a week, that is, on September 19,1959, delivery of the goods was applied for and was given but of only 52 bundles.
A week thereafter, the first plaintiff demanded the missing bundle, but was tenta lisingly put off from time to time by the defendant by letters of September 29, October 10, and December 4, 1959 assuring that a search was in progress to trace the goods.
It is important at this stage to notice that the plaintiff 's letter of September 26, 1959 sought "information regarding the whereabouts of the above bundle so as to enable us to clear the same at an early date".
The broad implication is that at that time the first plaintiff had.
no idea where the missing bundle was in the vessel or the port.
It is not unreasonable to infer that he did not then know, for sure, whether the undelivered item had been landed from the ship at all.
None of the three, letters by the defendant stated firmly that it had been discharged into the port, and it is quite on the cards that part of the total consignment had not been discharged into the port, in these any thing may happen days of expect the unexpected.
Significantly ' the first plaintiff inquired of the Indian Maritime Enterprises, the agents of the Japanese vessel, whether the entire consignment of 53 bundles bad been duly landed.
The reply received by the first plaintiff is meaningful in that the Indian Maritime Enterprises in there letter dated November 7, 1959, told the first plaintiff that all the 53 bundles had been duly unloaded.
It inevitably follows that the earliest date when we can attribute to the plaintiff clear knowledge of the port authorities having come into possession of the missing bundle was November 7, 1959.
of course, 400 the inquiry Section of the Alexandra Dock of the defendant indifferently informed the first plaintiff even on December 4, 1959 that the missing bundle was still under search and a definite reply regarding the out turn of that item could be given only later when loading sheets were fully checked.
However, the first plaintiff by letter dated December 5, 1959 wrote to the port authorities that he had been informed by the agents of the vessel (The Indian Maritime Enterprises) that the entire 53 bundles had been landed and desired "to please let us know immediately whether the bundle has been landed; if landed let the, information regarding the whereabouts and, if not, kindly confirm the short landings".
Apparently, this was to make assurance doubly sure which could be gained only when the defendant 's officials also confirmed it.
Counsel for the plaintiffs, with sweet reasonableness, urges that the interested ipse dixit of the agents of the vessel may not by itself be sufficient to impute clear knowledge of the discharge from the ship into the port of goods of which the Port Trust dis claimed knowledge of whereabouts.
Long later, on January 22, 1960, the Port Trust informed the first plaintiff "that the bundle under reference had been out turned as landed but missing".
Within a week thereafter, the first plaintiff asked for a non delivery certificate so that he could claim from the insurers the value of the article lost.
Such a certificate was issued on March 1, 1960 and on May 12, 1960 a statutory notice under section 87 of the Act was issued, followed on June 18, 1960 by the suit for the missing bundle or its value by way of damages.
The deadly defence put forward by the defendant and reiterated before us with great plausibility, was that the suit being governed by section 87 of the Act and the cause of action having been born on and limitation commenced to run from around September 19, 1959, the claim was stale, being well beyond six months and the statutory notice of a month super added.
The second plaintiff, insurer, having paid the value of the lost articles to the first plaintiff got itself subrogated to the latter 's right, and they together laid the suit before the Court of Small Causes.
That Court held on the merits that the defendant had been negligent in bestowing the basic care which as statutory bailee it was bound to take, and on the preliminary plea of bar of limitation repelled it, taking the view that non delivery of a consignment could not attract the shorter period prescribed in section 87 of the Act.
The decrees passed was, however, set aside by the Full Court in appeal which held the claim to fall within the ambit of the lesser limitation laid down by the Act, and so beyond time.
The teetering course of the case brought success to the plaintiffs in the High Court when a single Judge upset the finding on limitation and directed disposal of the appeal on the merits.
The last lap of the litigation has spurred them to this Court where learned counsel have addressed arguments principally on two facets of the plea of limitation.
The primary question is whether the present suit is one 'for any thing done, or purporting to have been done, in pursuance of this Act '.
The action is for non delivery of one out of 53 bundles.
plaintiffs ' counsel argues that an omission to do cannot be 'an act done 401 or purporting to have been done '.
Again, the failure to do what the Act mandates the Port Trust to do, viz., to deliver consignments to owners, cannot be 'in pursuance of this Act '.
How can the statute direct non delivery and how can the Port officials reasonably conceive that not delivering the goods committed to their charge is in pursuance of statutory duty? The perverse verdict would then be reached that violation of a law is fulfilment thereof.
Embellished by numerous rulings, Shri Cooper strove to convince us of the substance of the further link in the chain of his case that the cause of action for recovery of the value of the lost article could not spring to life before the knowledge of the landing and loss was brought home to the plaintiff.
How can a party, other than one with uncanny powers of extra sensory perception, sue for recovery from a bailee of compensation for loss of goods at a time when he is ignorant of the key fact that they have come into the latter 's, hands and have been lost? In short, for a cause of action for non delivery by the bailee to materialise, scienter that there has been delivery to the bailee and that it has since become non deliverable while in his custody, is a sine qua non.
Otherwise, suits for loss of goods would be some sort of a blind man 's buff game.
The Additional Solicitor General, armed with many decisions, Indian and English, parried the thrust by urging the rival position that an act includes an omission in circumstances like the present, that an official may contravene the duty laid under an Act and may yet purport to act under it, so much so delivery of 52 out of 53 bundles, impliedly omitting to deliver one item, is in pursuance of the statutory scheme of accepting the cargo discharged from the vessel, warehousing them and making them available for delivery to consignees.
In his submission, to dissect the integral course of statutory performance and to pick out a minor component of 'commission ' as constituting the infringement of the owner 's right which has given rise to the cause of action, is to misread the purpose and to re write the effect of section 87 and similar provisions in many statutes calculated to protect public officer and institutions on a special basis He further contends that even if, theoretically speaking, knowledge of the landing of the goods may be an ingredient of the cause of action, correspondence between the bailee and the owner regarding search for the landed goods is no ground to postpone the accrual of the right to sue, and When in a large consignment the bulk of it is delivered on a certain date the few undelivered items should also be reasonably presumed as having been landed and ready to be handed over, thus bringing into being, on such short delivery, the 'cause ' to sue.
Likewise, when the rules specify a week of the landing (vide section 61A) within which the owner is expected to take charge of the goods and the Port Trust is absolved from liability thereafter that is indication of the reasonable limit of time for delivery.
Limitation begins to run when the goods should reasonably have been delivered, ignoring operations for tracing the missing goods.
The absurd result would otherwise be that the right to sue would flicker fitfully as the search for the last bundle is protracting and the Port Trust can indefinitely put off a claimant 's suit by persisting in vain searches for the pilfered article and sending soothing 402 letters that efforts trace are 'in progress. ' And more sinister is the possibility of owners of considerable consignments, by oblique methods, getting letters of promise of search despatched by Port officials and thus postpone the time for taking delivery, thereby saving immensely on warehousing charges which are heavy in big cities.
Corruption spreads where such legal construction protects.
The proponents of both views have cited rulings in support but the sound approach of studying for oneself the sense of section 87 prompts us to set it out together with other cognate sections, get the hang of the statutory scheme and read the plain meaning of the notice and limitation provisions.
"section 87.
No suit or other proceeding shall be commenced against any person for any thing done, or purporting to have been done, in pursuance of this Act, without giving to such person one month 's previous notice in writing of the intended suit or other proceeding, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding. " "section 61A(1).
The Board shall, immediately upon the landing of any goods, take charge thereof, except as may be otherwise provided in the bye laws, and store such as are liable in their opinion to suffer from exposure in any shed or warehouse belonging to the Board.
(2) If any owner, without any default on the part of the Board, fails to remove any goods other than those stored in the warehouses appointed by the Board for the storage of duty paid goods or in warehouses appointed under section 15, or licenced under section 16 of the , from the premises of the Board within seven clear days from the date on which such goods shall have been landed, such goods shall remain on the premises of the Board at the sole risk and expense of the owner and the Board shall thereupon be discharged from all liability theretofore incurred by them in respect of such goods. ' "61B. The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of this Act and subject also in the case of goods received for carriage by railways to the provisions of the Indian Railways Act, 1890 be that of a bailee under section 151, 152 and 161 of the , omitting the words "in the absence of any special last mentioned Act.
" Let us interpret and apply.
Non delivery of an article is an omission, not an act and, in any case.
not one in pursuance of the Act, because the statute does ,not direct the Port Trust not to deliver the goods received from the 403 ships that Call at the port.
This view has found favour with the High Court.
With due difference to the learned judge, we think this approach to be too literal, narrow and impractical." 'For, inaction has a positive side as where a driver refuses to move his vehicle from the middle of tile road or even an operator declines to stop an engine or a surgeon omits to take out a swab ' of cotton after the operation.
Omission has an activist, facet "like commission, more so when there is a duty not to omit.
Again, where a course of conduct is enjoined by a law, the whole process pursuant to that obligation is an act done or purporting to be done under that Act although the components of that comprehensive act may consist of commissions and omissions.
A policeman acts or purports to act not only when he uses his lathi but also when he omits to open the lock up to set the arrested free or omits to produce him before a Magistrate.
The ostensible basis of 'the whole conduct colours both doings and defaults and the use of the words ' purporting to have been done".
in their natural sweep, cover the commission omission Complex.
A, cognate point arises as to whether you can attribute the neglect to comply with a law as something done in pursuance of that law.
Here again the fallacy is obvious.
If under colour of office.
clothed with the rules of authority, a person indulges in conduct not falling under the law he is not acting in accordance with the sanction of the statute or in bona fide execution of authority but ostensibly under the cloak of statute.
It is the apparel that oft proclaims the man and whether anything is done under, in pursuance of or under colour of a law.
merely means that the act is done in apparent, though not real, cover of the statute.
Broadly understood, can the official when challenged fall back, in justification, on his official trappings? A revenue officer distraining goods wrongfully or a municipal officer receiving license fee from a non licensee is violating the law but purports to act under, it.
On the other hand, a police officer who collects water cess or a municipal officer who takes another into custody, is not by any stretch of language acting in pursuance of or under the relevant Act that gives him power.
And certainly not an act of taking bribe or committing rape.
Such is the sense of the words we are called upon to construe.
The true meaning of such and similar words used in like statutes has been set out In, Halsbury correctly and concisely : "An act may be done in Pursuance of or in the execution of the powers granted by a statue, although that act is prohibited by the statute.
A person acting under statutory powers may erroneously exceed the powers given, or inadequately discharge the duties imposed, by a statute, vet if he acts bona fide in order to execute such powers Pr to discharge such duties.
he is considered as acting in pursuance of the statute.
Where a statute imposes a duty, the omissions to do something that ought to be done in order completely to Perform the duty, on the continuing to leave any such duty unpe rformed, amounts to an act done or 404 intended to be done, within the meaning of a statute which provides a special period of limitation for such an act." (3rd edn., vol.
24, pp.189 190).
A selective reference to the rulings cited at the bar may now be made.
although in this blurred area conflicting pronouncements have made for confusion, a systematised presentation will yield the clear inference we have reached without reference to the citations.
In one of the earliest cases under the Highway Act, the defendant.
surveyor of the perish of T., was charged with failure to remove the gravel from the highway which obstructed and caused nuisance to the public and overturned the plaintiff 's carriage.
It was proved that the defended was guilty of want to care in leaving the gravel there, and the questions arose whether under section 109 of the Highway Act he was entitled to notice.
Lord Denman, C.J., disposed of the matter tersely : "It is clear that the defendant is charged with a tort committed in the course of his official duty,; he is charged, as surveyor.
with the positive act of leaving the gravel on 'the road, where it had been improperly placed, for, an unreasonable time On that simple ground, I think it clear that he was entitled to notice.
" Patterson J. considered the same point a little more at length taking the, view ". that the charge is not one of mere omissions, but of actually continuing the nuisance.
That is a charge of doing something wrong, of keeping the gravel in an improper place.
an act continued until the concurrence of the mischief.
Is it then an act done in pursuance of the statute ? It is not denied that the heap of gravel was put there in pursuance of the statute , it could not be spread at the same moment; the question then would arise, whether the length of time during which it was kept in a heap was reasonable or not.
The continuing, therefore, was a thing done in pursuance of the statute. ' Wightman J. struck a similar note.
The learned Judge observed "The defendant is liable only by virtue of his office.
lie is charged with ' permitting an obstruction to remain, of which permission he is guilty in his character of an officer described in the Act of Parliament.
He is, therefore, under sev 109, entitled to a notice, in order to enable him to tender amends." This decision rendered around 130 years ago has a modern freshness and it is remarkable that the language of the statute construed by the Judges there has a likeness to the one we are concerned with here, namely, "anything done in pursuance of or under the authority" of statute.
405 Still earlier rulings may be referred to; for instance Palmer V. Tile Grana Junction Railway Company(1) where the same point was ruled.
but where Baron Parke said : "If the action was brought against the railway company for the omission of some duty imposed upon them by the Act.
this notice would be required.
" In another old decision, Poulsum vs Thirst(2) the construction of the expression, acts "done or intended to be done under the powers of the Metropolitan Board of Works, and fell for decision.
Byles, J. relied on Newton vs Ellia(3) where also a similar set of words had to be interpreted and "omitted to be done" was absent.
In the case decided by Byles, J., the defendant stopped up the sewer, and neglected to drain it, thereby causing injury. 'The learned Judge belt] that the defendant 's conduct must be looked at as a whole, and that he was entitled to notice of action.
The other two Judges took the same view.
Newton vs Ellis(4) decided in 1855 under section 139 of the Public Health Act, 1848, for injury caused by digging a hole on the road without placing a light or signal there, turned on the need for notice before summons.
Earlier cases like Davis vs Curling(5) were referred to and the conclusion reached that though the gravamen of the charge against the defendant was the omission to place a light in the spot of danger it attracted the formula "anything done or intended to be done under the provisions of this Act" comparable to the phraseology of the Act which came under the judicial lens in.
Davis vs Curling 'things done in pursuance of or under the authority ' of the Act.
Coleridge, J. observed with felicitous precisions "This is not a case of not doing; t e defendant does something, omitting to secure protection for the public.
He is not sued for not putting up a light, but for the complex act.
" Erle J. likewise said ".Here the cause of action is the making the hole, compounded with the not putting up a light.
When these are blended, the result is no more than if two positive acts were committed, such as digging the hole and throwing out the dirt; the two would make up one act.
" Are we not concerned with a blended brew of act and omission, a complex act, a compound act of delivery cum non delivery, pursuant to the statute without which the vinculum juris between the Board and the plaintiff did not exist? Jolliffee vs The Wallasey Local Board(6) is a leading case, rightly pressed for acceptance of its ratio by the, learned Solicitor General.
Kesting, J., after finding for the plaintiff on negligence, focussed atten (1) ; (3) ; ; (5) 8 Q. D. 286.
(2) (1867) 2 L. R. 449.
(4) ; (6) (1873) L. R. 62.
406 tion on the nature of the Act and the need for notice.
He observed "As a matter of fact, therefore I come to the conclusion that the defendants were guilty of the negligence complained of, and that negligence was the cause of the accident; and, as matter of law, I hold that negligence to give the plaintiffs a cause of action against the local board.
But, assuming that to be so, then comes the further question, whether the defendants are not absolved from liability in this action, by reason of the absence of a notice of action.
For myself, I must express my regret that this case should be decided upon such a point; but my opinion is that the defendants were entitled to notice.
This question depends upon the construction of the several Acts of Parliament which have been placed before us." "Now the local board was originally constituted under the Public Health Act, 1848; and it is not denied that, for anything done or intended to be done under that Act, they would be entitled to a notice of action under section 139." "That.
however, does not dispose of the matter; a further question arises, viz., whether the acts complained of here are acts which could be done by the local board under the provisions of the Act of Parliament, so as to entitle them to a notice of action." "It has been suggested that protection is not intended to be given by clauses of this description in cases of nonfeasance.
so, is clear, from the cases of Davis vs Curling, Newton vs Ellis, Wilson vs Mayor, & C., of Halifax, and Salmes vs Judge, all of which seem to me to establish that a case of what appears to be nonfeasance may be within the protection of the Act.
" Brett, J, expressed himself equally unminicingly: "Now. two objections were urged by Mr. Aspinnal.
In the first place, he says the thing complained of here is a mere nonfeasance, and therefore not "an act done.
" If I rightly understand the judgments in former cases, the rule is this,where a man is sued in tort for the breach of some positive duty imposed upon him by an Act of Parliament, or for the omission to perform some such duty, either may be an act done or intended to be done under the authority of the Act, and if so done or intended to; be done, the defendant is entitled to a notice of action." "In Wilson vs Mayor, & c. of Halifax(1), Kelly, C.B., states the proposition in those terms: It has been urged on the part of the plaintiff that the charge against the defendants is not of any act done or intended to be done, but of an omission to erect or cause to be erected a fence between the foot path and the goit, and that the omission to do an act is not (1) Law Rep. 407 an act done or intended to be (lone, ' Some authorities have been cited on both sides: but we think that, whatever may be the construction which might be put upon the words of the statute if the question arose in this case for the first time, it is now settled by authority that an omission to do something that ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of.
Parliament, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done, within the meaning of these clauses requiring notice of action for the protection of public bodies acting in the discharge of public duties under Acts of Parliament." "It would seem from these authorities that, where the plaintiff is suing in tort, nonfeasance is to be considered as " an act done," within.
such clauses as these." Mr. Cooper tried to distinguish Jolliffee 's case but having given our close attention to the matter we decline to jettison this weighty judgment.
Jolliffee 's case was followed by the Privy Council in Queen vs Williams(1).
The Judicial Committee took the view that "an omission to do something which ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to "an act done or intended to be ' done" within the meaning of a clause requiring a notice of action." A case which went up to the Privy Council from India under the Calcutta Port Act, 1890, was decided on similar lines by the Judicial Committee in Commissioner for the Port of Calcutta vs Corporation of Calcutta(2).
Lord Alness observed "Reliance was placed by the respondents on the case of the Bradford Corporation vs Myers [(1916) I. A.C. 242].
Now, inasmuch as that case related to the construction of the Public Authorities Protection Act (1893), which contains language not to be found in the Indian statute, and which omits language to be found in the latter, manifestly the decision falls to be handled with c are.
In particular, the English Act does not contain the word is "purporting or professing" to act in pursuance of the statute.
Their Lordships regard these words as of pivotal importance.
Their presence in the statute appears to postulate that work which is not done in pursuance of the statute may nevertheless be accorded its protection if the work professes or purports to ' be done in pursuance of the statute.
The English Act was properly treated by the, House in the Bradford case as one from which the words "profession or purporting" were omitted, and the observations of the House must, of course, be construed secundum subjectam materiem." (2) [1937] 64IA 363; 371.
(1) (1884) 9 L. R. 41 8. 408 In a different context though, the Privy Council had to deal with a similar provision, namely, section 197 of the Criminal Procedure Code, in the well known case of Gill vs The King(1).
Lord Simonds, speaking for the Board, explained the position of law thus : "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.
Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act.
The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.
" It may be mentioned even here that the Judicial Committee had distinguished Bradford Corporation vs Myers(2) on which considerable reliance was placed by Shri Cooper and also in several decisions which took the opposite point of view.
We need make no comments on that decision except to state that for exceedingly excellent reasons the Judicial Committee has put that ruling out of the way.
Shri Cooper brought to our notice the circumstance that Public Authorities Protection Act, 1893, brought in 'neglect and default ', which became necessary only because "any act done in pursuance. of any Act of Parliament." would not otherwise comprehend omissions and defaults.
We are not impressed with this submission and decline to speculate why a change of language was made if the law packed "omission" into "act".
Gill vs The King (supra), just referred to, affirms the careful analysis of the authorities by Varadachariar, J., in Hori Ram Singh vs The Crown(3) and also the ratio in Huntley 's (4) case.
In Hori Ram 's case, which related to the construction of section 197 of the Criminal Procedure Code and section 270(1) of the Government of India Act, Varadachariar, J., brought out the true meaning of the words "act done or purporting to be done in the execution of his duty".
The learned Judge observed : "Apart from the principle that, for the purposes of the criminal law, acts and illegal omissions stand very much on the same footing, the conduct of the appellant in maintaining the accounts, which it was his duty to keep, has to be dealt with as a whole and the particular omission cannot of itself be treated as an offence except as a step in the appellant 's conduct in relation to the maintenance of the register which it was his duty correctly to maintain." Stress was laid rightly by the learned Judge on the relevance of public interest in protecting a public servant and in restrictions being placed on an aggrieved citizen seeking redress in a court of law, to point out (1) [1948] 75 I. A. 41; 59 60.
(3) (2) (4) 409 that acts which have no reference to official duty should not come within the protective umbrella of these statutory provisions.
The learned Judge insisted that "an act is not less one done or purporting to be done in execution of a duty because the officer concerned does it negligently." The true test, if we may say so with great respect, is whether the conduct of the public servant or public body, viewed as a whole, including as it may 'omissions ' also, be attributed to the exercise of office.
Sri Cooper reinforced his contrary argument by reliance on the case of Revati Mohan Das vs Jatindra Mohan Ghosh(1) which dealt with section 80 of the Civil Procedure Code.
That decision, however, is distinguishable and relates to an optional act or omission of a public officer where it could not be designated that the failure to pay the debt by a manager was an 'illegal omission ' constituting an 'act ' under section 3 of the General Clauses Act.
A decision of the Calcutta High Court (Commissioner for the Court of Calcutta vs Abdul Rahim Osman & Co.(2), turning on the construction of a similar provision (section 142 of the Calcutta Port Act) covers the various decisions, Indian and English, and after pointed reference to Amrik Singh 's case reaches the conclusion : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
" The Bench proceeded to set out the following propositions which meet with our approval: (a) I order to apply the bar under sec.
142 of the Calcutta Port Act, it is first to be determined whether the act which is complained of in the suit in question can be said to come within the scope of the official duty of the person or persons who are sought to be made liable.
This question can be answered in the affirmative where there is a reasonable connection between the act and the discharge of the official duty.
(b) Once the scope of the official duty is determined, sec.
142 will protect the defendants not only from a claim based on breach of the duty but also from a claim based upon an omission to perform such duty.
(c) The protection of sec.
142 cannot be held to be confined to acts done in the exercise of a statutory power but also extends to acts done within the scope, of an official duty.
" The case dealt with was also one of short delivery and consequent loss of a part of the goods, and the suit was dismissed for being beyond the short period of limitation prescribed under the special Act.
Again, in District Board of Manbhum vs Shyamapada Sarkar(3) the Bihar Local Self Government Act containing a provision analogous to (1) [1934] 61 I. A. 171.
(2) 68 Cal.
Weekly Notes 814.
(3) A. I. R. 1955 Pat.
410 what we are, concerned with here was construed by a bench of that Court reading the words "anything done under this Act" to include "anything Omitted to be done under the Act", and further that anything done tinder this Act ' necessarily and logically embraces anything wrongfully done or wrongfully omitted to be done.
In Gorakh Fulji Mahala vs State(1), Chandrachud, J., as he then was, made an elaborate study of a comparable provision in the Bombay Police Act (section 161) and followed the Federal Court decisions already referred to by us, as well as this Court 's decision in Shreekantiah Ramayya kunipalli vs State of Bombay(2).
The learned Judge summed up the law thus "The decisions cited above have uniformly taken the view that in an act cannot be said to be done under colour of office or under colour of duty or in the Purported execution of official duties unless there is a reasonable connection between the act and the office.
A view has also been taken in these decisions that one of the tests for determining whether an act has been done in the purported discharge of official duties is whether the public servant can defend his act by reference, to the nature of the duties of his office if he is challenged while doing the act.
" A few more decisions, apart from what has already been referred to by us, specifically dealing with similar causes of action under similar statutes, viz., the Calcutta Port Act and the Madras Port Trust Act, have discussed the problem before us.
In Madras Port vs Home Insurance Co. (3), a Division Bench of the Madras High Court adopted the wider view and held "The services which the Board has to perform and could perform statutorily under the statutory powers and duties cannot be dissociated from its omissions and failures in relation to the goods.
Any action Which is called for will properly be covered by the Words 'anything done or purporting to be done in pursuance of this Act.
Under the Madras General Clauses Act, 1891 words which refer to.
the acts done extend also to illegal omissions.
" Natesan, J., relied on Calcutta Port Commissioner vs Corporation of Calcutta(4), where the Judicial Committee had stressed the ampler sense of 'purporting or professing to act in pursuance of the statute ' and observed "Their Lordships regard these words as of pivotal importance.
Their presence in the statute appears to postulate that work which it hot done in pursuance, of the statute may nevertheless be accorded its protection, if the work professes or purports to be done in pursuance of the statute." (1) I. L. R. (3) A. I. R. ; 57 58.
(2) ; (4) A. I. R. 411 The whole issue is clinched in our view by the final pronouncement of this Court in Public Prosecutor Madras ;vs R. Raju(1).
the, interpretation of s.40(2) of the Central Excis ' and Salt Act, 1944 and the antithesis argued between 'act ' and 'omission ' provoked a panoramic survey of the Indian statute book.
Reference was made to Pritam Singh 's (2) case where absence from duty at the time of the roll call was held to be something done under the provisions of the Police Act.
Maulad Ahmadabad 'S(3), case Was relied an as fortifying this view, for there too a Head Constable who made false entries in a General Diary of the Police Station *as held entitled to.invoke the 3 months limitation under section 42 of the Police Act since the act complained of was the non discharge of duty in keeping a regular diary.
Even filing false returns by a sales tax assessee was held in Sitaram vs State of Madhya Pradesh(4) as an act done under the Berar Sales Tax Act whereunder a prosecution for such an.
act had to be brought in three months.
The ratio decidendi is set out by Ray, J. (as he then was) thus : "25.
These decisions in the light of the definition of the word 'act ' in the General Clauses Act establish that non compliance with the provisions of the statute by omitting to do *hat the act enjoins will be anything done or ordered to be, done under the Act.
The complaint against the respondents was that they wanted to evade payment of duty.
Evasion was by using and affixing cut and torn banderols.
Books of accounts were not correctly maintained There was shortage of banderol in stock.
Unbanderolled matche 's were found.
These are all infraction of the provisions in respect of things done or ordered to be done under the Act.
In Amalgamated Electricity Co. vs Municipal Committee, Ajmer [(1969) 1 S.C.R. 430] the meaning of 'omission ' of a statutory duty was explained by this Court.
Hegde, J., speaking for the Court said "The omission in question must have a positive content in it.
In other words, the non discharge of that duty must amount to An illegality".
The positive aspect of omission in the present case in evasion of payment of duty.
The provisions of the Act require proper affixing of banderols.
Cut or turn banderols were used.
Unban dderolled match boxes were found.
These proisions about use of banderols are for collection and payment of excise duty.
The respondents did not pay the lawful dues which are acts to be done or ordered to be done under the Act.
" We readily concede that it is oversimplfication to state that no court has taken the contrary view, both on the question of act not including an omission and action contrary to the behest of the statute not being done pursuant to or under the statute.
An exhaustive consideration of these twin propositions is found in Zila Parishad vs Shanti Devi(5).
(1) A. I. R. (2) ; (3) [1963] Supp, 2 section C. A. 38.
(4) [1962] Supp. 3 section C. R. 21.
(5) ; 412 Seemingly substantial support for Shri Cooper 's contention is derived from observations in State of Gujarat vs Kansara Manilal Bhikhala(1), where, rejecting a plea of protection under section 117 of the , by an occupier of a factory who had violated the duties cast on him, Hidayatullah, J. (as he then was) observed "But the critical words are "any thing done or intended to he done" under the Act.
The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions, It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it.
Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act.
It is not sufficient to say that the act was honest.
That would bring it only within the words "good faith".
It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done.
There must be a compliance or an intended compliance with a provision of the Act, before the protection can be claimed.
The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise.
In this connection it is necessary to point out, as was done in the Nagpur case above referred to, that the occupier and manager are exempted from liability in certain cases mentioned in section 101.
Where an occupier or a manager is charged with an offence he is entitled to make a complaint in his own turn against any person When acctual the actual offender and on proof of the commission of the offence by such person the occupier or the manager is absolved from liability.
This shows that compliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility.
Such a provision largely excludes the operation of section 117 in respect of per sons guilty of a breach of the provisions of the Act.
It is not necessary that mens rea must always be established as has been said in some of the cases above referred to.
The responsibility exists without a guilty mind.
An adequate safeguard, however, exists in section 1 0 1 analysed above and the occupier and manager can save themselves if they prove that they are not the real offenders but who, in fact is".
It is obvious that this ruling can hardly help, once we understand the setting and the scheme, of the statute and the purpose 'of protection of workers ensured by casting an absolute obligation on occupiers to observe certain conditions.
The context is the thing and not verbal similitude.
In a recent ruling of this Court in Khandu Sonu Dhobi vs State of Maharashtra(2), Khanna, J., while repelling a plea of immunity from (1) (2) ; 413 prosecution put forward by the accused on the score of limitation and the case being "in respect of anything done or intended to be done under this Act" (The Bombay Land Improvement Scheme Act, 1942) said: "This contention, in our opinion, is devoid of force.
Subsection (2) refers to suit or prosecution against a public servant or person duly authorised under the Act in respect of anything done or intended to be done under the Bombay Land Improvement Schemes Act.
It cannot be said that the acts of the accused appellants in preparing false documents and in committing criminal breach of trust in respect of the amount of Rs. 309.07 as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act.
Sub section (2) of section 23 deals with anything done or intended to be done under.
the above mentioned Act by a public servant or a person duly authorised under the Act.
It has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with duties of carrying out improvement schemes under the above mentioned Act.
The impugned acts of the appellants in the present case were not in discharge of their duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties.
Not only they did no rectification work for the Bundh which was a part of the improvement scheme, they also misappropriated the amount which had been entrusted to them for the purpose of rectification.
" How slippery and specious law and logic can be unless the Court is vigilant is evident from this kind of defence Here is a case not of performing or omitting to perform an official act in the course of which an offence is committed.
On the contrary, an independent excursion into crime using the opportunity of office without any nexus with discharge of official function is what we have, in that case.
The Court significantly highlights the fact that 'not only they did no rectification work for the Bundh they also misappropriated the amount entrusted to them for the purpose of rectification. ' We hope no policeman can shelter himself after a rape of an arrested *Oman or shooting of his own wife on the pretext of acting under the Police Act.
Immunity cannot be confused with toxicity disastrous in law as in medicine.
Nor can functions of office be equated with opportunities of office, without being guilty of obtuseness.
This chapter of our discussion yields the conclusion that an act includes an omission (regardless of the General Clauses Act, which does not apply to antecedent statutes) not under all circumstances but in legislations like the Act we are construing.
Again, what is done under purported exercise of statutory functions, even if in excess of or contrary to its provisions, is done pursuant to or under the Act so long as there is a legitimate link between the offending act and the official role.
Judged thus the defence by the Board fills the bill.
The Scheme of the statute is simple.
When cargo ships call at the port, the Board constituted under the Act shall take charge of the goods landed from the vessel and store them properly (section 61 (A)( 1) ).
The 14 L954SupCI/74 414 Board cannot keep goods indefinitely, hard pressed as any modern port is for space and facing as it does intractable problems of protection of goods.
When the goods have landed the owner has to be on the alert and get ready to remove them within 7 days, after which the statutory bailee, the Board, is discharged from liability subject, of course, to any default on the part of the Board in the matter of making the goods deliverable (section 61A(2)).
The span of statutory custody of the Board is short but during that time its obligations are those of a bailee under sections 151, 152 and 161 of the , omitting the words "in the absence of any special contract" in section 152 of the Contract Act (section 61B).
If the person entitled to the goods defaults in removing them within one month of the Board coming into custody, special powers of disposal by public auction are given by section 64A.
The Act charges, the Port authorities with a wealth of functions and duties and necessarily legal proceedings follow upon the defects, defaults and other consequences of abuse of power.
Even so, a public body undertaking work of the sort which a Port carries out will be exposed to an explosive amount of litigation and the Board as well as its officers will be burdened by suits, and prosecutions on top of the pressure of handling goods worth crores daily.
Public bodies and officers will suffer irremediably in such vulnerable circumstances unless actions are brought when evidence is fresh and before delinquency fades; and so it makes sense to provide, as in many other cases of public institutions and servants, a reasonably short period of time within which the legal proceedings should be started.
This is nothing unusual in the jurisprudence of India or England and is constitutionally sound.
Section 87 is illumined by the protective purpose which will be ill served if the shield of a short limitation operates in cases of misfeasance and malfeasance but not nonfeasance.
The object, stripped of legalese and viewed through the glasses of simple sense, is that remedial process against official action showing up as wrong doing or non doing which inflicts injury on a citizen should not be delayed too long to obliterate the probative material for honest defence.
The dichotomy between act and omission, however, logical or legal, has no relevance in this context.
So the intendment of the statute certainly takes in its broad embrace all official action, positive and negative, which is the operative cause of the grievance.
Although the Act, in the present case, uses only the expression 'act ' and omits 'neg lect or default or omission, the meaning does not suffer and if other statutes have used all these words it is more the draftsman 's anxiety to avoid taking risks in court, not an addition to the semantic scope of the word 'act '.
Of course, this is the compulsion of the statutory context and it may well be that other enactments, dealing with different subject matter, may exclude from an 'act ' an 'omission '.
This possibility is reduced a great deal by the definition of 'act ' in the various General Clauses Acts, as including 'illegal omissions '.
The leading ,case of Jolliffee vs The Wallesey Local Board(1) decided nearly a century ago has stood the test of time and still cunent coin, and (1) (1873) 9 L. R. 62.
415 Stroud (Stroud 's Judicial Dictionary; 3rd edn.
Vol. 1; page 877) has extracted its ratio thus : "An omission to do something which ought to be done in order to complete performance of a duty imposed upon a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to "an act done or intended to be done" within the meaning of a clause requiring a notice of action (Joliffe vs Wallesey, L.R. 9 C.P. 62).
" We regret the prolixity of the judgment because we appreciate brevity but it is the judicial price or tribute to the learning and length of the arguments presenting a panoramic view of Anglo Indian judicial thought for which we are obliged to both counsel.
Indeed, the plethora of rulings cited has been skipped here and there by a process of calculated ricochet, without omitting the more salient cases.
And we are re assured, at the end of this pilgrimage through precedents, that the soundness of the view we have taken is attested by pronouncements of vigorous judges twice three score and ten years ago, in words which 'age cannot wither nor custom stale '.
Law is a practical instrument, a working tool in a workaday world and where, as here, the effected fraction of the community is the common official.
the commercial man and ordinary folk, the wiser rule of construction follows commonsense, not casuistry, context, not strictness and not subtle nuance but plain sense.
The logical conclusion of the legal study is that the short delivery of one bundle or rather the act of under delivery in purported discharge of the bailee 's obligation under section 61B of the Act is covered by section 87 and the truncated limitation prescribed thereunder will apply.
Of course, the statutory notice under section 83 is a condition precedent to, although not a constituent of, the cause of action And there is some authority for the position that the period of one month may also be tacked on under section 15(2) of the .
In the view we take on the ultimate issue this question is immaterial.
Even so, the decisive date on which the decree turns and time runs has to be settled.
if the applies, the suit, by any reckoning, is not barred but since it does not apply the critical issue is as to when time begins to run.
Brushing aside technicalities and guided by the analogy of article 120 of the , we think it night to ]told that the cause of action for short delivery comes into being only when the consignee comes to know that the bailment has come into existence.
You cannot claim delivery from a statutory bailee till you know of the bailment, which under the Act arises only on the vessel discharging the goods into the port certainly not before.
In this species of actions, the right to sue postulates knowledge of the right.
Till then it is embryonic, unborn.
A vital point, then, is as to when the first plaintiff came to know of the goods in question having landed.
The defendant says that when the bulk of the consignment is delivered 'on a Particular date, it must be presumed, unless a contrary inference on special circumstances is made out, that the undelivered Dart was deliverable on that date so 416 much so that limitation began to run from then on.
Any further representation by the bailee that he was trying to trace the missing bundle would not affect the cause of action and therefore the commencement of limitation.
How can a claim be barred without being born ? 'When, then, did the right to sue arise ? It depends on what right was infringed or duty breached.
Which leads us to the enquiry as to what is the statutory responsibility cast on the Board and what is the violation alleged to create the 'cause ' of action.
The bundle of facts constitutive of the right to sue certainly includes the breach of bailee 's duties.
Section 61B of the Act saddles the Board with the, obligations of a bailee under sections 151, 152 and 161 of the Contract Act in regard to loss, destruction or deterioration of goods of which it takes charge.
The degree of care is fixed by section 151 the absolvatory circumstances are indicated by section 152 and the responsibility for loss is fastened by section 162 if, by the fault of the bailee, the goods are not delivered or tendered at the proper time to the bailor.
The proper time for delivery is as soon as the time for which the goods were bailed has expired or the purpose of the bailment has been accomplished Sec. 160, although not in terms woven into the Port Trust Act, is impliedly incorporated, because section 161 inevitably brings it into play.
Even so, when does the time for which the goods are bailed expire ? The answer is, according to the Solicitor General, when the week after landing of the goods expires if section 61A(2) betokens anything on this point.
He urges that when the bulk of a consignment is delivered by the bailee the time for delivery of the short delivered part must be reasonably held to have come.
Finally, he submits that the time consumed by search for the landedgoods cannot be added for fixing the terminus a quo of limitation.
Assuming for arguments sake all these in favour of the appellant, one critical issue claims precedence over them.
When does the statutory bailment take place and can the time for delivery to the owner of the goods arise before he knows or at least has good grounds to know that the bailment has in law come into being ? The owner must ordinarily take delivery in a week 's time after landing since thereafter the Board will cease to be liable for loss, etc., save, of course, when the latter defaults in giving delivery as for instance the goods are irremovably located or, physical obstruction to removal is offered by striking workers or natural calamities.
Here the 7 days ended on September 19, 1959 when actually 52 out of the 53 bundles were delivered.
And if the due date for delivery of the missing bundle had arisen then the suit is admittedly time barred.
However, the learned Solicitor General rightly agrees that 7 days of unloading is no rigid, wooden event to ignite limitation and it depends on other factors which condition the reasonable time when delivery ought to be made.
If a tidal bore has inhibited approach to the port it is a futile law which insists on delivery date having arrived and therefore limitation having been set in motion.
The key question is, according to counsel, when ought the goods have been put in a deliverable state by the Board ?.
If, having regard to reasonable circum 417 stances, the Port Trust did not tender delivery, the right of action for non delivery, subject to statutory notice, arose and the calendar would begin to count the six months in section 87.
We are inclined to assent to this stand for legal and pragmatic reasons.
In Madras Port Trust case where action for loss of goods was laid, two extreme contentions competed for acceptance.
The Board argued that the goods once landed, time ran inflexibly and an absolute span of one month having expired before statutory notice was given the suit was barred.
This was over ruled by the Court (M/s. Swastik Agency vs Madras Port Trust) (1).
But the opposite plea, equally extravagant, commended itself to the Court, erroneously in our view.
The plea was that till the plaintiff knew of the loss, destruction or deterioration time stood still even if many months might have rolled on after the vessel had discharged the goods.
It is true that section 87 speaks of '6 months from the accrual of the cause of such suit '.
What is cause of the suit? Loss, destruction or deterioration ? If so, as Ramamurti, J., has held : "It stands to common sense that the owner cannot be expected to file a suit before he is given access to the goods and also an effective opportunity to examine the goods and he becomes aware of the loss or damage which had occurred to the goods.
To hold that the period of one month specified in s.40(2) would, commence to run even before the owner of the goods became aware, of the loss or damage would result in absurd and startling results.
" The legal confusion issues from the clubbing together of the triple categories of damage.
Cause of suit being destruction or deterioration while the goods are in the custody of the bailee it is correct to read as this Court did in a different situation under the Land Acquisition Act in Harish Chandra vs Deputy Land Acquisition Officer(2), knowledge of the damage by the affected party as an essential requirement of fair play and natural justice.
The error stems from visualising loss as the 'cause ' of suit.
The bailee is bound to return, deliver or tender.
If he defaults in this duty the ,cause ' of action arises.
While destruction or deterioration may need inspection by the owner, it may be proper to import scienter as integral to the 'cause ' or grievance.
But loss flows from sheer non delivery, with nothing super added.
_Loss is the direct result.
viewed through the owner 's eyes, of non return, non delivery or non tender by the bailee the act/omission which completes the 'cause, (vide ;.
161 Contract Act).
What is complained of is the nondelivery, the resultant damage being the loss of goods.
We must keel) ' the breach of duty which is the cause distinct from the loss which is the conse quence.
The judicial interpretation cannot take liberties with the language of the law beyond the strict needs of natural justice.
So we hold that awareness of the factum of loss of goods is not a sine qua non of the 'cause '.
(1) A. I. R. (2) A.I.R. 1961 S.C. 1500.
418 In a stroke of skilful advocacy it was urged that when the bailee fails to return the goods it is like a suit for wrongful detention and the cause of action is a continuing one.
This is an action in detention and its impact on limitation must be recognised, was the contention, stren gthened by Dhian Singh Sabha Singh vs Union of India(1) and certain passages from Clerk & Lindsell on Torts (11th Edition, pages 441 and 442; paras 720 & 721).
The flaw in the argument is that we are concerned with a statutory bailment, statutory action for loss due to non delivery and not a contractual breach and suit in damages or for value of the goods bailed.
Another fascinating,line of thought was suggested to extricate the plaintiff from the coils of brief limitation.
When the defendant holds goods as bailee, the plaintiff may found his cause of action on a breach of the defendant 's duty as bailee of the goods by refusal to deliver them upon request.
Gopal Chandra Bose vs Surendra Nath Dutt(2), Laddo Begam vs Jamal ud din(3) and Kupruswami Mudaliar vs Pannalal Sawcar(4) were cited in support.
Other rulings striking a similar note were also relied on.
But we need not express any opinion on the soundness of that position for here we are dealing with a statutory liability where the plenary liabilities of a bailee cannot be imported.
Counsel for the respondents also urged that the analogy of article 120 of the entitles him to reckon time from when he came to know of the facts making up the right to sue.
In Annamalai Chettiar vs Muthukarappan Chattiar(5), the Judicial Committee had observed: "In their Lordships ' View the case falls under article 120, under which the time begins to run when the right to sue accrues.
In a recent decision of their Lordship 's Board, delivered by Sir Binod Mitter, it is stated, in reference to article 120 : There can be no 'right to sue ' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted" : Bala vs Koklan(6).
Counsel for the appellants admitted that he was unable to specify any date at which the claim to an account here in suit was denied by the appellants.
Accord ingly this contention fails.
" The reference to Sir Binod Mitter 's observations relates.
to the ruling in Bala vs Koklan.
The proposition is impeccable but is inapplicable if it is urged that the knowledge of the loss marks the relevant date.
On the other hand, if the right to sue or the accrual of the cause of action is based on the infringement by non delivery the knowledge must be the knowledge of the factum of bailment which takes place on the unloading from the vessel and the taking charge by (1) ; (2) (3) All 45.
(4) (5) 58 I.A. 18.
(6) (1930) L.R. 57 I.A. 325.
419 the Board.
That is to say, it is preposterous to postulate the running of limitation from a date anterior to when the plaintiff has come to know that his missing goods have been landed on the port.
Mohammad Yunus vs Syed Unnisa(1) is authority for the rule that there can be no right to sue (under article 120) until there is an accrual of the right asserted which as we have shown, involves awareness of the bailment.
It meets with reason and justice to state that the cause in section 87 cannot arise until the consignee gains knowledge that his goods have come into the hands of the Board.
The Railways Act has spanned cases where courts have laid down legal tests for determining the commencement of limitation.
Views ran on rival lines till in Bootamal 's case(2) this Court settled the conflict and gave the correct lead which has been heavily relied on by the Solicitor General.
Sri Cooper contested the application of the principle in Bootamal on the score that article 31, Limitation Act, 1908, which fell for construction there, used the words 'when the goods ought to be delivered" and covers both delayed delivery and nondelivery, which were absent in s.87, and argued that even otherwise it did not run counter to the contention of the respondent.
Anyway, the Court held there as follows: "Reading the words in their plain grammatical meaning, they are in our opinion capable of only one interpretation, namely, that they contemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made.
The words "when the goods ought to be delivered" can only mean the reasonable time taken (in the absence of any term in the contract from which the time can be inferred expressly or impliedly) in the carriage of the goods from the place of despatch to the place of destination.
Take the case, where the cause of action is based on delay in delivering the goods.
In such a case the goods have been delivered and the claim is based on the delay caused in the delivery.
Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the arriage of goods from the place of despatch to the place of destination.
Any time taken over and above that would be a else of delay.
Therefore, when we consider the interpretation of these words in the third column with respect to the case of non delivery, they must mean the same thing, namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination.
The view therefore taken by some of the High Courts that the time begins from the date when the railway finally refuses to deliver cannot be correct, for the words in the third column of article 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver." (1) ; (2) ; , 76, 79.
420 "With respect, it is rather difficult to understand how the subsequent correspondence between the railway and the consignor or the consignee can make any difference to the starting point of limitation, when that correspondence only showed that the railway was trying to trace the goods.
The period that might be taken in tracing the goods can have no relevance in determining the reasonable time that is required for the, carriage of the, goods from the place of despatch to the place of destinations.
" The ratio is twofold, viz. (1) not when the final refusal to deliver but when the reasonable time for delivery has elapsed does limitation start; (2) correspondence stating that efforts are being made to trace the goods cannot postpone the triggering of limitation.
Of course, 'reasonable ' time is a relative factor and representation by the Railway inducing the plaintiff not to sue may amount to estoppel or waiver in special circumstances.
We are inclined to confine, Bootamal to the specific words of article 39.
The discussion discloses the influence of the words in columns 1 and 3 on the conclusion, rendering it risky to expand its operation.
Section 87 speaks only of the accrual of the cause.
The cause is the grievance which is generated by nondelivery.
But can it be said that it is unreasonable not to be aggrieved by non delivery if the Board credibly holds out that delivery will shortly be made and vigorous search for the goods is being made amidst the enormous miscellany of consignments lying pell mell within the Port? Do you put yourself in peril of losing your right by behaving reasonably and believing the Board to be a responsible body ? We think not.
We are not impressed by the argument based on Bootamal and the train of decisions following it, under the Railways Act.
The rulings of this Court in Union of India vs Amar Singh,(1), Governor General in Council vs Musaddi Lal(2) and Jetumull Bhojrai vs The Darjeeling Himalayan Railway Co.(3) relate to the Limitation Act and the Railways Act; ' and, while public carriers and Port authorities may in many respect bear similar responsibility, the limitation law applicable is different.
May be, some uniformity is desirable in this area of law.
But we have to go by the language of section 87 and not be deflected by analogy drawn from the Railways Act or Limitation Act with noticeable variations.
Never the less, one of the legal lines harshly but neatly drawn in Bootamal lends some certainty to the 'from when ' of limitation, by eliminating an impertinence letters informing that search for the goods is under way.
The snag is in linking this proffer of search to the vital ingredient in the 'accrual of the cause '.
If, as Bootamal has correctly highlighted, the tracing process is after the 'cause ' is complete it is irrelevant to procrastinate limitation.
This is the wider contribution of that decision to this blurred branch of the law.
So much so, sheafs of letters from the Port officials that the landed goods are being tracted out or searched for are impotent to alter the date from when the crucial six months ' race with time be gins.
Once limitation starts, nothing not the most tragic events can interrupt it; for 'the moving hand writes, and having writ (1) ; (2) ; (3) [1963] 2 S.C.E. 832.
421 moves on; not all thy tears nor piety can lure it back to cancel half a line '.
This implacable start is after 'the accrual of the cause ', which is when non delivery or non tender takes place.
That event is fixed with reference to reasonable lapse of time after the unloading of the goods.
Thus, if the search is to find out whether the goods have landed at all, it is integral and anterior, to the 'cause '; but if it be to trace what has definitely been discharged into the port it is de linked from the, 'cause 'a la Bootamal.
Such an approach reduces the variables and stops the evils of fluctuation of limitation.
It is easy to fix when the vessel has discharged the goods into the port by, looking into the tally sheet or other relevant documents prescribed in the bye laws.
This part of the tracing cannot take long although it is regrettable and negligent for the Bombay Port officials to have taken undue time to give the plaintiffs even this information.
On the contrary, search for the missing but landed goods in the warehouses and sheds and open spaces can be a wild goose chase honestly or as long as the consignee or port officials with dishonestly.
Reasonable diligence will readily give the consignee information of landing, of his goods.
In the major port cities warehousing facilities are expensive and difficult to procure so that a consignee of considerable goods may manage to get free warehousing space within the port for as long as he wants by inducing, for illicit consideration, the port officials to issue letters that the goods are being traced out.
This is a vice which adds to the sinister uncertainty of the terminus a quo if we accept the plea that every letter from the port authorities that the missing goods are being traced out has the effect of postponing limitation.
We wish to make it clear however that the event which is relevant being the discharge of the goods from the ship into the port, the bailment begins when the Board takes charge of the goods and a necessary component of the "cause" in section 87 of the Act is the knowledge of the owner that the goods have landed.
One small but significant argument of the Solicitor General remains to be noticed.
In the search for what 'is the reasonable time for delivery by the bailee a pragmatic or working rules is suggested by him which we think merits consideration.
When a large consignment is entrusted with the Board and the bulk of it is delivered on a particular date it ordinarily follows that the reasonble time for the delivery of the missing part of the consignment also fell on that date.
There may be exceptional circumstances whereby some items in the consignment might not have been unloaded from the ship by mistake or might be stored by error in a wrong shed mixed up with other goods so that they are not deliverable readily, or a substantial part of the goods has been taken delivery of and by the time the balance is sought to be removed a bandh or strike or other physical obstruction prevents taking delivery.
Apart from these recondite possibilities which require to be specially proved by him who claims that limitation has not started, it is safe to conclude that the date for delivery of the 422 non delivered part of the consignment is the same as that when a good part of it was actually delivered.
The ruling in Trustees of the Port of Mad? as vs Union of India, cited by Shri Cooper in this context, is good in parts.
The learned judges were dealing with the short delivery by the Madras Port Trust.
While pointing out that attempts made by the Port Trust to locate the goods would be no answer to the claim for delivery made by the consignee, the Court held that the date when limitation starts in such cases is when a certificate that the missing packages are not available (Shedmaster 's certificate 'C ') is issued.
While it is correct to say that alleged attempts by the Port officials to locate the goods which have definitely landed has no bearing on the "cause", it is equally incorrect to hold that till the certificate that the non delivered package is not forthcoming limitation does not begin.
The true test, as we have earlier pointed out, is to find out when delivery should have been made in the normal course, subject to the fact of discharge from the ship to the port of the relevant goods and the knowledge about that fact by the consignee.
In Union of India vs Jutharam(1) a single Judge of that High Court took the view that when part of the goods sent in one consignment was not delivered it is right to hold that it should have reasonably been delivered on the same day the delivery of the other part took place.
The date of delivery of part of the consignment must be deemed to be the starting point of limitation.
This approach has our broad approval.
In Union of India vs Vithalsa Kisansa & Co.(2) a single Judge of Bombay High Court, while emphasizing that what is reasonable time for delivery may depend upon the circumstances of each case, the point was made if the correspondence between the bailee and the consignee disclosed anything which may amount to an acknowledgment of the liability of the carrier that would give a fresh starting point of limitation.
even as.
if the correspondence discloses material which may throw light on the question of determining the reasonable time for delivery, the Court may take into account that correspondence but not subsequent letters relating only to the tracing of the goods.
This statement of law although made in the context of a public carrier 's liability applies also to the Port Trust.
In short, there is force in the plea that normally the date for delivery of the missing packages should be deemed to be the same as the date when another part of the consignment was actually delivered.
We thus come to the end of the case and may formulate our conclusions, as clearly as the complex of facts permits.
(1) Section 87 of the Acts insists on notice of one month.
This period may legitimately be tacked on to the six month period mentioned in the section (vide Sec.
15(2) ).
(2) The starting point of limitation is the accrual of the cause of action.
Two components of the "cause" are important.
The date (1) A.I.R. 1968 Pat.
(2) A.I.R. 1971 Bom.
423 when the plaintiff came to know or ought to know with reasonable diligence that the goods had been landed from the vessel into the port.
Two clear, though not conclusive indications of when the consignee ought to know are (1) when the bulk of the goods are delivered, there being short delivery leading to a suit (ii) 7 days after knowledge of the landing of the goods suggested in Sec.
Whichever is the later date ordinarily sets off the running of Limitation.
(3) Letters or assurances that the missing packages are being searched for cannot enlarge limitation, once the goods have landed and the owner has come to know of it.
To rely on such an unstable date as the termination of the search by the bailee is apt to make the law uncertain, the limitation liable to manipulation and abuses of other types to seep into the system.
(4) Section 87 is attracted not merely when an act is committed: but also when an omission occurs in the course of the performance of the official duty.
The act omission complex, if it has a nexus to the official functions of the Board and its officers, attracts limitation under section 87.
Judged by these working rules, the present case has to be decided against the plaintiffs.
For one thing, the short delivery of one bundle of steel plates is an integral part of the delivery of the consignment by the port authorities to the consignee in the discharge of their official functions as statutory bailee.
Section 87 of the Act, therefore, applies.
The delivery of the bulk of the consignment took place on September 19, 1959 and more than seven months had passed after that before the institution of the suit.
Of course, a later date, namely, November 7, 1959 (Ext. 'A ') clearly brings to the ken of the plaintiff the fact that the missing bundle has been duly landed in the port.
It is true that the enquiry section of the Bombay Port Trust Docks did not even, as late as December 4, 1959, give a definite reply about the "outturn" for this item.
On December 5, 1959, the first plaintiff brought to the notice of the Board "that the above mentioned bundle has been landed and they (agents of the vessel) hold receipt from you (the Board)".
The plaintiffs made an enquiry "Whether the bundle has been landed, if landed, let the information regarding the whereabouts and, if not, confirm the short landings." Further reminders by the plaintiffs proved fruitless till ;It last on January 22.
1960,, the port officer concerned wrote : "I beg to inform you that the bundle under reference has been outturned as "Landed but missing." It was contended that the plaintiffs, for certain, came to know of the landing of the missing bundle only on January 22, 1960.
We are unable to accept this plea because the first plaintiff had already got the information, as early as November 7, '1959, about the due landing of the missing item from the Indian Maritime Enterprises.
Nothing has been suggested before us as to why this knowledge of the plaintiff should be discarded.
The subsequent correspondence between the port officers and the plaintiffs was more for getting requisite documents.
424 to follow up legal proceedings against the insurer by the consignee.
In this view, the starting point of limitation arose on November 7, 1959 and the suit was instituted on June 18, 1960, a little over 10 days beyond the period of limitation.
The plaintiffs thus missed the bus and we regret to decide on this technical point that the suit is liable to be dismissed but we must.
A faint plea that the Board is not a 'person ' falling with in section 87 was suggested by Sri Cooper but its fate, if urged, is what overtook a similar contention before a Bench of the Madras High Court in Trustees of the Port of Madras vs Home Insurance Co.(1) dismissal without a second thought.
It is surprising that a public body like the Port Trust should have shown remissne in handling the goods of consignees and in taking effective action for tracing the goods.
It is seen that while there is ,a special police station inside the port, called the Yellow Gate Police Station, with six or seven officers and 200 policemen for duty by day and with about 400 policemen for duty by night, the port authorities ,did not care to report to the police till December 16, 1959.
Three months is far too inordinate and inexcusable a delay for reporting about the pilferage of a vital and valuable item, namely, a bundle of ,steel plates imported from Japan by an automobile manufacturing company.
While we dismiss this suit, we feel that it is not enough that the State instal police stations inside the ports; it must ensure diligent action by the officials, and if there is delinquency or default in discharging their duties promptly and smartly, disciplinary action should be taken against those concerned.
In this country our major harbours are acquiring a different reputation for harbouring smugglers :and pilferers and an impression has gained currency that port officials ,connive at these operations for consideration.
Every case is an event and an index, projects a conflict of rights between two entities but has a social facet, being the symptom of a social legion.
We consider that the Government and the public must be alerted about the unsatisfactory functioning of the ports so 'that delinquent officials may be proceeded against for dubious default in the discharge of their duties.
It is not enough that diligence is shown in pleading limitation when honest citizens aggrieved by loss ' of their goods entrusted to public bodies come to court.
The responsibility of these institutions to do their utmost to prevent pilferage is implied in the legislative policy of prescribing a short period of ' limitation.
Another important circumstance we wish to emphasize is that ambiguity in language leading to possibilities of different constructions should not be left to the painfully long and expensive process of being ,settled decades later by the highest court in the land.
The alternative and quicker process in a democracy of rectification by legislative amendment should be resorted to so that private citizens are not subjected to inordinate expense and delay because the legalese in a legislation reads abstruse or ambiguous.
The very length of this judgment, and of this litigation, is eloquent testimony to the need (1) A.I.R. 1970 Mad.
425 for prompt corrective legislation on such small matters as have cropped up in the present case.
Moreover, some uniformity in regard to.
statutory bailee 's responsibilities, whether they be public carriers like the Railways, or strategic institutions like Ports, will give the community a sense of certainty and clarity about their rights and the duties.
of public bodies in charge of their goods.
Counsel had drawn attention to the difficulties of the community where conflicting judicial currents aided by tricky words have made law chancy, and the need for this Court to clear the ground and give.
the lead.
We are aware, with justice Jackson of the U.S. Supreme Court, that 'the judicial decree, however, broadly worded, actually binds in most instances, only the parties to the case.
As to others,.
it is merely a weather vane showing which way the judicial wind is blowing '.
The direction of the wind.
in this branch of law, is as we have projected.
We are of the view, in reiteration of earlier expression on the same lines, that public bodies should resist the temptation to take technical pleas or defeat honest claims by legally permissible but marginally unjust contentions, including narrow limitation.
In this and similar cases, where a public carrier dissuades private parties from suing by its promises of search for lost articles and finally pleads helplessness,, it is doubtful morality to non suit solely on grounds of limitation, a plaintiff who is taken in by seemingly responsible representation only to find himself fooled by his credibility.
Public institutions convict themselves of untrustworthiness out of their own mouth by resorting to such defences.
What should be the proper direction for.
costs ? Both the parties arc public sector bodies.
But the principle which must guide us has to be of general application.
Here is a small claim which is usually associated with the little man and when, as in this test action, the litigation escalates to the final court wafted by a legal nicety, his financial back is broken in a bona fide endeavour to secure a declara tion of the law that binds all courts in the country for the obvious benefit of the whole community.
The fact that the case has gained special leave under article 136 is prima facie proof of the general public importance of the legal issue.
The course of this litigation proves that the fine but decisive point of law enmeshed in a conflict of precedents found each court reversing the one next below it, almost hopefully appetising the losing party to appeal to the higher forum.
The real beneficiary is the business community which now knows finally the norm of limitation they must obey.
Is it fair in these circumstances that one party, albeit the vanquished one, should bear the burden of costs throughout for providing the occasion not provocation for laying down the correct law in a controversial situation.
Faced with, a similar moral legal issue, Lord Reid observed : "I think we must consider separately costs in this House and costs in the Court of Appeal.
Cases can only come before this House with leave, and leave is generally given because some general question of law is involved.
In this 426 case it enabled the whole vexed matter of non est factum to be re examined.
This seems to me a typical case where the costs of the successful respondent should come out of public funds.
"The Evershed Committee on Supreme Court Practice and Procedure had suggested in England that the Attorney General should be empowered to issue a certificate for the use of public funds in appeals to the House of Lords where issues of outstanding public importance are involved.
Maybe, a scheme for a suitor 's fund to indemnify for costs as recommended by a Sub Committee of Justice is the answer, but these are matters for the consideration of the Legislature and the Executive.
We mention them to show that the law in this branch cannot be rigid.
We have to make a compromise between pragmatism and equity and modify the loser pays all doctrine by exercise of a flexible discretion.
The respondent in this case need not be a martyr for the cause of the, certainty of law under section 87 of the Act, particularly when the appellant wins on a point of limitation.
(The trial court had even held the appellant guilty of negligence).
In these circumstances we direct that the parties do, bear their costs throughout.
Subject to this, we allow the appeal.
S.C. Appeal allowed.
(1) Gallie vs Lee.
(2) ,1048.
| In the proceedings before the Supreme Court two of them being writ petitions under article 32 of the Constitution and two others being appeals from the orders of the Delhi High Court in writ petitions under article 226 relief was claimed in respect of the search of certain premises and seizure of account books, documents, cash, jewelry and other valuables by Income tax authorities purporting to act u/s 132 of the Income Tax Act, 1961.
The petitioners/ appellants challenged the validity of Sec.
132(1) and (5) of Rule 112(A) on the ground that they violate article 14, Article 19(1)(f) and (g) and 31 of the Constitution.
It was also contended that a writ of prohibition to restrain the authorities from using the 'information gathered from the documents seized should be issued.
In the writ petitions, the actual search and seizure were challenged on the ground that they were carried out in contravention of the provisions of Sec. 132 and Rule 112 A.
The Court negatived all the contentions.
Dismissing the writ petitions and appeals, HELD: (1) When one has to consider the reasonableness of the restrictions or curbs placed on the freedoms mentioned in article 19(i) (f) and (g), one cannot possibly ignore how such evasions eat into the vitals of the economic life of the community.
Therefore, in the interest of the community, it is only right that the fiscal authorities should have sufficient powers to prevent tax evasion.
As a broad proposition, it can be stated that if the safeguards while 'carrying out search and seizure are generally on the lines adopted by the Criminal Procedure Code they would be regarded as adequate and render the temporary restrictions imposed by these measures as reasonable.
On detailed examination of the provisions of Sec. 132, and Rule 112, it is clear that the 705 Safeguards are adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances.
The provisions, therefore, relating to search and seizure in Sec. 132 and Rule 112 cannot be regarded as violative of articles 19(1)(f) and (g).
[714F, 717C] In the course of his duties, the Director of inspection has ample opportunities to follow the course of investigation and assessment carried on by the income Tax Officers and to check the information received from his sources with the actual material produced or not produced before the assessing authorities.
It is not, therefore, correct to argue that the Director of Inspection could not entertain honest and reasonable belief before ordering search and seizure under Section 132(1)(a)(b) and (c).
The second proviso to sub section (5) of Sec. 132 shows that the assessee can get a release of all the assets seized if he can make satisfactory arrangements for the payment of the estimated dues.
So also, the excess collection is refundable u/s 132 A with interest after the regular enquiry.
The provisions of Section 132(5) are not confiscatory in nature.
[717F] M. P. Sharma vs Satish Chandra ; and Commissioner of Commercial Taxes vs R. section Jhaver [1968]1 S.C.R. 148 followed.
(II) The provisions of Section 132(1) and (5) cannot be challenged on the ground that they make unjust discrimination between two sets of tax evaders in .ordering search and seizure or retention of the seized wealth for recovering the tax, in some cases and not ordering the same in other cases.
All evaders of taxes can be proceeded against u/s 132.
Only in some cases, the search may be useful because of the information about the undisclosed income and wealth.
Where there is no such information, search and seizure would be futile.
Therefore, there is no substance in the contention that two different procedures for assessment are adopted an hence there is discrimination under article 14.
[720C] C. Venkata Reddy and Another vs Income tax Officer, (Central) 1, Bangalore, and others, 66 Income tax Reports, 212 and Ramjibhai Kalidas V.I. G. Desai, Income tax Officer, and others, 80 Income tax Reports, 721, cited with approval.
(III) The Income tax authorities can use as evidence any information gathered from the search of the documents and accounts and articles seized.
Neither by invoking the spirit of our Constitution nor by strained construction of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.
U23F], A. K. Gopalan vs State of Madras, ; and M. P. Sharma vs Satish Chandra ; Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.
Where the test of admissibility of evidence lies in relevancy, unless there is an express or implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out.
[723G] (IV) In writ petition No. 446171, on facts it was found that the allegations of mala fide and oppressiveness and highhandedness in search and seizure were not proved.
On examining the records, held that the petitioner was not co operating with the Director of Inspection.
(V) Held further, that seizure of books of account and other documents which were afterwards found to be not relevant, along with the documents relevant for the enquiry, does not make the search and seizure illegal.
It may at the most be an irregularity.
On the material on record, the Director of inspection had proper grounds for a belief for ordering search and seizure under sub clauses (b) and (c) of sub section (1) of Sec. 132.
Merely because the assessment for the relevant year was already completed, it does not mean that on the information in the possession of the Director of Inspection, he cannot 706 entertain the necessary belief.
On facts, in Writ Petition No. 86/72 held the search and seizure were neither oppressive nor excessive.
|
Appeal No. 464 of 1964.
Appeal by special leave from the Award dated the September 29, 1962 of the Third Industrial Tribunal in Case No. VIII 197 of 1960.
A. V. Viswanatha Sastri, Anand Prakash and D. N. Gupta, for the appellant.
N. C. Chatterjee, D. L. Sen Gupta and Janardan Sharma, for the respondent.
140 The Judgment of the Court was delivered by Hidayatullah, J.
The Dunlop Rubber Co. Ltd. was granted on January 21, 1963 special leave to appeal against the award of the Third Industrial Tribunal, West Bengal dated September 29, 1962.
By that award the Tribunal set aside the dismissal from service of twelve workmen of the Company and ordered their reinstatement with continuity of service but awarded only 25 per cent of the back wages etc.
during the period they were out of employment treating the period as leave.
This dispute was referred by the Government of West Bengal on July 20, 1960 under section 10 of the .
The workmen were dismissed after a domestic enquiry commenced on February 4, 1960 which was carried on exparte because these workmen did not choose to be present.
The Tribunal held that the enquiry was not proper and some of the witnesses were re examined before the Tribunal whose verdict was against the Company and hence this appeal.
Eleven of these workmen belonged to what is known as the Dual Auto Mill and the twelfth was working on what is described as the Baby Mill.
These workmen and several others stopped work from January 21, 1960 and they were placed under suspension on 25/27th January.
Ten other workmen were also dismissed but they were taken back on the intercession of the Government of Bengal.
The incident arose in the following circumstances : In the processing of rubber which is used in the manufacture of rubber goods by the Company, a number of departments have to work in sequence.
The Banbury Section prepares a mixture of rubber and chemicals and it is passed on to the Dual Auto Mill which, after further processing, turns out blocks of rubber called "batches".
Each batch is of about 1250 lbs.
There were at the material time two Dual Auto Mills and they were working in three shifts and as each auto mill required the attendance of two workmen, twelve such workmen were employed to look after the two mills.
Each shift was of 8 hours with half an hour 's rest for meals and an extra 20 minutes for emergencies.
It was expected to produce and was, in fact, producing 17 batches till January 12, 1960.
There was another mill called the Baby Mill but what it was used for is not quite clear on the record of the case.
One of the dismissed workmen (section R. Sen Gupta Check No. 252 was working on the Baby Mill and he was a protected worker.
The workmen in this Company are grouped under three Unions : the most numerous is Union No. 4145 which goes under the name of Dunlop Workers ' Union.
This Union was registered 141 but it was not recognised by the Company.
Another Union which bears No. 729 and goes under the, name of Dunlop Rubber Factory Labour Union was recognised by the Company.
We need not refer to the third Union which does not figure in these proceedings.
It appears that Union No. 4145, which came into existence in 1957, managed to capture all the elective seats open to the workmen by defeating the candidates set up by Union No. 729.
There was great rivalry between the two Unions and the dismissed workmen belonged to Union No. 4145.
It appears that Union No. 4145 had raised a demand for revision of wages etc.
which was being resisted by the Company.
The Baby Mill, the Banbury Mill and the Dual Auto Mills were manned by the workmen belonging to Union No. 4145, except one Raghunandan Das, Check No. 100, who belonged to Union No. 729 and was teamed with Chandramma Chaube one of the dismissed workmen.
Raghunandan Das was absent on leave from January 12 to January 19, 1960.
From January 12, there was a fall in the output of the Dual Auto Mills at all the three shifts.
The number of batches fell from 17 to 15 and later still further.
On January 15, 1960 warnings were issued to these workmen that they were going slow and that "go slow" action was misconduct under cl.
10(XVI) of the Company 's Standing Orders for operators and under cl.
18(C) of the Labour Union Agreement for operators.
They were told that if they did not immediately return to their normal output the Company would be forced to take disciplinary action against them.
All the workmen were served with such letters.
On January 19, Raghunandan Das joined his duties and was teamed again with Chandramma Chaube.
It seems that Raghu nandan Das found that Chandramma Chaube was not giving the full output and was taking more than the required time over the mixing operations.
Chandramma Chaube 's case, on the other hand, was that Raghunandan Das was not allowing sufficient technical time for the mixtures and he (Chandramma Chaube) was objecting to it.
It may be pointed out that the workmen were.
paid extra if they turned out more than the expected quota of batches and Raghunandan Das was anxious to earn more, if possible.
Be that as it may, it seems that these two workmen quarreled on January 21 and Raghunandan Das abused Chandramma Chaube and also Union No. 4145.
Immediately the members of 4145 Union threatened to stop work unless Raghunandan Das was removed from the Dual Auto Mill and transferred to another Department.
The officers of the Company promised an enquiry 142 but asked the workmen to go back to work.
The workmen belonging to the 4145 Union refused to do this.
As a result the Dual Auto Mills either remained closed or worked much below their capacity.
The workmen were again and again requested and ultimately on 25/27th January they were called to the office so that they could be served with charge sheets.
They declined to accepted the charge sheets and were there and then placed under suspension.
The suspended workmen included these twelve workmen and ten others as already stated.
One Mr. P. K. Maitra commenced enquiry into the charges in the presence of Mr. R. M. Bhandari, an observer.
At the commencement of the enquiry each of the workmen asked for a representative of Union No. 4145 who was "conversant with the art of cross examination" to be present.
Under the Standing Orders of this Company representation could only be by a member of a recognised Union but as Union No. 729 was anathema to the members of Union No. 4145 they would not avail of the services of any member of that Union.
They elected to remain absent except section R. Sen Gupta who, though their leader, appeared at the enquiry against himself and made a statement clearing himself but took no further part in the enquiry.
As a result of the enquiry, which was ex parte, Mr. Maitra held that these workmen were going slow and that they were guilty of the charge brought against them.
He recommended the punishment of dismissal.
The Company accordingly ordered their dismissal seeking at the same time the permission of the Tribunal under section 33 of the and tendering one month 's wages to each workman.
Later, the Government of West Bengal took interest in the matter and at the intercession of the Government the Company agreed to take back 10 of the workmen leaving it to Union No. 4145 to select the persons who should be taken back.
All the workmen of the Banbury Mill were taken back and the 1 1 workmen of the Dual Auto Mill and Sen Gupta of the Baby Mill remained dismissed.
The Tribunal in reaching the conclusion that the dismissal was improper and that the workmen should be reinstated held that the Company had not really charged the workmen with "go slow" action but had found them guilty of that charge.
It held that the Company was showing favours to Union No. 729 and was trying to put down the Union of the dismissed workmen.
The Tribunal, however, held that the stoppage of work by the workmen amounted to strike as there were proceedings pending before the Tribunal, but since the strike was peaceful and non 143 vident it was only technically illegal.
The Tribunal blamed the Company for contributing to the strike by its refusal to shift Raghunandan Das from his place of work.
In view of these findings the Tribunal held that the punishment of dismissal was not justified and the order now impugned was accordingly passed.
The Tribunal was wrong in almost all its conclusions.
It was wrong in holding that the workmen were not charged with "go slow" action and therefore could not be dismissed on the finding that they were guilty of "go slow".
Under the Standing Orders of the Company "go slow" is a major misconduct.
Clauses (VIII) and (XVI) of Standing Order 10 deal with insubordination or disobedience or failure whether alone or in combination with others, to carry out any lawful and reasonable or proper order of a Superior (cl. VIII) and engaging or inciting others to engage in irregular or unjustified or illegal strikes; malingering or slowing down of work (cl. XVI).
The charge sheet stated as follows : "You are hereby asked to show cause why disciplinary action should not be taken against you for the following misconduct under Operators Standing orders Clauses 10(VIII) and (XVI).
The two clauses of Standing Order 10, as pointed out above, deal with insubordination and inter alia with going slow.
It was contended before us that the words "go slow" did not figure in this charge as they did in the charges against workmen in the Banbury AM.
It is to be remembered that on January 15, 1960 these workmen had been expressly warned that they were going slow and that "go slow" action was misconduct under cl.
10(XVI) of the Company 's Standing Orders for Operators.
No doubt Mr. Lobo, who drew up the charge, had not mentioned go slow in these charges as he had done in the charges framed against the workmen of the Banbury Mill, but it is nevertheless clear that these charges refer to go slow and indeed the workmen in their replies to the charge denied that they were going slow.
It may be pointed out that Mr. Lobo had stated before the Enquiry Officer that the charge was "go slow".
The log books also showed that from January 12, 1960 against the Dual Auto Mills the remark was "slow work".
It is clearly established by the records produced that instead of 17 batches 15 batches or less were turned out at each shift.
This proves that there was a deliberate "go 144 slow" no sooner Raghunandan Das left on leave and the Dual Auto Mills came into the exclusive hands of Union No. 4145.
This Union thought that the opportunity was too good to be wasted to force their demand for increase of wages by the tactics of "go slow".
The explanation of the workmen that the mixture received from the Banbury Mill was too cold and had to be reheated before it could be processed in the Dual Auto Mills was false.
They attributed the cooling of the mixture to the working of a new machine called the festooner from the 12th of January.
It is clear that this machine was tried for three months before it was put into operation and had worked for three months prior to January 12, 1960 and so such complaint had been made by the workmen.
It is possible that the Banbury Mill operators, who were also suspended and dismissed, were cooling the mixture unduly by means of their blower to delay operation.
But whether the Banbury Mill cooled it and the Dual Auto Mills were required to reheat it or the Dual Auto Mills delayed the operations, it is clear that the motivating force behind it was the action of Union No. 4145 to force the hands of the Company in support of their demands.
It is sufficient to say that after the new workmen had got trained in the working of the Dual Auto Mills the production again reached the same number of batches and after the figure was even better though the festooner continued in operation.
We are satisfied that the workmen were going slow from January 12, 1960, that the charge of "go slow" was incorporated in the charge sheet read with the warning letter and that it was fully substantiated.
This amounted to misconduct under Standing Order No. 10 and was not a minor offence as contended before us by their learned counsel.
The minor offences deal with conduct of a very different kind.
The Tribunal was also wrong in thinking that there was a denial of natural justice because the workmen were refused the assistance of a representative of their own Union.
Under the Standing Orders it is clearly provided that at such enquiries only a re presentative of a Union which is registered under the Indian Trade Union Act and recognised by the Company can assist.
Technically, therefore, the demand of the workmen that they should be represented by their own Union could not be accepted.
It has been ruled by this Court in Kalindi & Ors.
vs Tata Locomotive & Engineering Co. Ltd.(1) and Brook Bond India (P) Ltd. vs Subba Raman(2) that there is no right to representation as such unless the Company by its Standing Orders recognises such a right.
(1)[1960] 3 S.C.R. 407.
(2) 145 Refusal to allow representation by any Union unless the Standing Orders confer that right does not vitiate the proceedings.
It is true that only the rival Union was recognised and there was hostility between the two Unions.
The quarrel itself which sparked off the strike was also between two representatives of the rival Unions.
In such circumstances it is idle to expect that these workmen would have chosen to be represented by a member of the rival Union and the Company might well have considered their demand to be represented by any other workman of their choice.
The workmen, however, insisted that the representation should be in the capacity of a representative of their own unrecognised Union.
In other words, they were desiring recognition of their Union in an indirect way.
The dispute, therefore, was carried on by these workmen with the twin object of achieving their demand for increased wages and also for the recognition of their Union.
The implication of their demand that they should be represented by a member of their own Union was not lost upon the Company and the refusal to allow representation on these terms cannot be characterised as a denial of natural justice or amounting to unfair play.
If the Company had been asked that the workmen wished to be represented by a workman of their own choice without the additional qualification about Union No. 4145 it is possible that the Company might have acceded to the request.
We think, the Company might have asked the workmen to delete all reference to Union No. 4145 and allowed them to have a representative of their own choice in the special circumstances of this dispute.
But we cannot say that the action of the Enquiry Officer was for that reason illegal or amounted to a denial of natural justice.
In this connection, we have repeatedly emphasised that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employ should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request.
But as we have just indicated, in the circumstances of this case, we have no doubt that the failure of the Enquiry Officer to accede to the request made by the employees does not introduce any serious defect in the enquiry itself, and so, we have no hesitation in holding that the result of the said enquiry cannot be successfully challenged in the present proceedings.
146 It follows that the two main reasons for interfering with the order of dismissal do not really exist.
The charge was under cls.
(VIII) and (XVI) of Standing Order No. 10.
It said so and its meaning was quite clear to the workmen who, according to plan, were definitely going slow from January 12, 1960 when the Dual Auto Mills passed into the control of workmen belonging to Union No. 4145.
The demand of the workmen, couched as it was, could not be granted by the Enquiry Officer, because the Standing Orders did not permit representation by a member of any but a recognised Union.
The additional reasons given by the Tribunal that later the demands of this Union were accepted in respect of wages can hardly justify the action of these workmen in going on an illegal strike and in declining to resume work unless what they demanded was done.
There was thus justification for the order passed by the Company.
It is on record that the Dual Auto Mills perform a key operation and no rubber goods can be produced without the batches being available.
By their action these workmen slowed down production of every category and by their refusal to work when asked to g0 back to work cause enormous loss to the Company.
The motive underlying the action is more deep seated than a mere quarrel between Chandramma Chaube and Raghunandan Das or the abuses which Raghunandan Das is alleged to have showered on Chandramma Chaube and his Union.
It is contended that there was discrimination between the Banbury Mill and the Dual Auto Mills because workmen of the Banbury Mill were reinstated but not the workmen of the Dual Auto Mills.
The discrimination, if any, was made by Union No. 4145 which nominated those who should be taken back in service.
There must be some reason why the Banbury Mill workmen were treated differently and if we are to hazard a guess, it seems that those workmen were not sending out a cold mixture as alleged but that the Dual Auto Mill workmen were taking more time on their own operation.
The production was slowed down not by the Banbury Mill operators but by the Dual Auto Mill operators.
In other words, the Banbury Mill workmen, though they joined in the strike, did not probably join in the "go slow", but the Dual Auto Mill workmen not only started "go slow" but also led the strike affecting a large number of workmen.
In any event the workmen chosen for reinstatement '.
were chosen by their own Union and it cannot be said that the Company made any discrimination.
We are satisfied that in this case the Tribunal was not justified in interfering.
It has acted as a court of appeal in scrutinizing the evidence and in reaching conclusions of its own.
We are also 147 satisfied that the conclusions reached by it were not justified on the evidence in the case.
In these circumstances, we think that the order passed by the Tribunal should be vacated and the order passed by the Company ought to be accepted.
It is a pity that these workmen, who, on their own admission were better paid than in any other Organisation should lose their job in an attempt to get an indirect recognition of their Union.
But it cannot be helped because the Company must have a free hand in the internal management of its own affairs.
No outside agency should impose its will unless the action of the Company is lacking in bona fides or is manifestly perverse or unfair.
There is nothing to indicate this.
At the same time we must say that existence of Union No. 4145 which has a larger membership than Union No. 729 which is the only recognised Union, has in a great measure contributed to this dispute.
We have often noticed that Companies favour one Union out of several and thus create rivalry which disturbs industrial peace.
It often turns out that this has adverse effect on Company itself.
Since Union No. 729 was formed in 1950 and Union No. 4145 in 1957 we cannot say that the non recognition of Union No. 4145 was deliberate.
But as that Union seems to be the stronger of the two Unions the Company should seriously consider whether Union No. 4145 should not also be recognised.
The appeal must succeed.
It will be allowed but we make no order about costs.
Appeal allowed.
| The members of the Bombay Bullion Association, respondent herein, were permitted under the Forward Contracts Control Act (Bom.
Act 64 of 1947) to carry on forward dealings in bullion subject to the bye laws framed by the Association.
The appellant who was a member of the Association and was carrying on business as bullion merchant, defaulted in performing his obligation to tender silver of which he was the forward seller, on the settlement day, and so the Association, purporting to act under its bye laws, purchased a quantity of silver at the risk of the appellant and claimed from him the difference in price.
The appellant paid the amount and challenging the legality of his being treated as in default filed a suit for its refund.
The suit was dismissed by the High Court.
In appeal to the Supreme Court it was contended that the Association should not have made the purchase because the purchasers had not fulfilled the terms of their obligations under the bye laws in making their payments to the Association.
The contentions were that : (i) certain of the purchasers who had made payments into the Clearing House of the Association by cheques, drawn on their account in the Clearing House, had not had the cheques certified as good for payment as required by bye law 137 B, and (ii) one payment was made by a purchaser, by a cheque drawn, not on the Clearing House but on a branch of the Clearing House in the city, and which besides was not certified good for payment as required by the bye law.
HELD : (i) Where a payment was made by a cheque drawn on in account with the Clearing House and the amount represented by that cheque was transferred to the Clearing House Account of the Association, it is virtually a payment in cash, though in form a payment by cheque.
Since payment in cash is one of the modes of payment recognised by the byelaw it satisfied the requirement of a valid payment.
[255 E F; 262 G H] Arsene A. Larocque vs Hyacinthia Beauckemin, (1897) A.C. 358, referred? to.
(ii)Where the Clearing House had accepted the cheque and credited it to the Association after ascertaining from the branch on which it was drawn, that the drawer of the cheque had enough funds at that branch for meeting of the cheque, the cheque need not be certified as good for payment.
The position with respect to such a cheque is the same as when the cheque is drawn on an account in the same branch, because the certificate of the banker that is referred to in the bye law is the certificate of a bank different from that into which the cheque is being paid.
In any event, when the staff of the Clearing 1 louse ascertained from the branch that the cheque was backed by sufficient funds to the credit of the customer in the branch on which it was drawn, it satisfied the requirements of a cheque certified as good for payment within the bye law.
[260 B; 262 A C; 263 G H] up./ 65 17 250
|
iminal Appeal No 64 of 1969.
Appeal by special leave from the judgment and order dated December 10, 1968 of the Punjab and Haryana High Court in.
Criminal Revision No. 1200 of 1967.
R. L. Kohli, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
Ishar Das appellant was convicted by the judicial magistrate 1st class Patiala for an offence under section 7(1) of the (Act No. 37 of 1954) read with section 16(1) (a) (i) of that Act and was ordered to furnish bond under section 4 of the .
Bedi, J. of the Punjab and Haryana High Court during the course of the inspection of the Court of trial magistrate, took the view that an improper order had been made in the above case by the magistrate.
The High Court thereupon of its own motion directed that a notice be issued to the appellant.
The case was thereafter posted before Bedi, J.
The learned judge referred to the fact that a minimum sentence of imprisonment for a period of six months and a fine of Rs. 1,000 had been prescribed by section 16 of the .
It was also observed that offenses under the were against the public and called for deterrent punishment.
Order was consequently made that the appellant instead of being released on his furnishing a bond, should be sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000.
In default of payment of fine.
the appellant was ordered to undergo simple imprisonment for a further period of one and a half month.
The appellant thereafter filed this appeal by special leave to this Court.
At the time the leave was granted.
it was ordered that the appeal would be limited to the question of sentence only.
The prosecution case is that on August 1, 1966 the Food Inspector Patiala took a sample of two cups of ice cream from the appellant from Phul Cinema canteen on payment of three rupees.
Part of the ice cream was sent for analysis to Public Analyst Chandigarh.
The Analyst reported that the ice cream was adulterated, being deficient in milk fat contents to the extent of 77 per cent and total solid contents to the, extent of 7 per cent.
The appellant was thereafter prosecuted on the allegation that he had committed an offence under section 7(1) of the read with section 16 (1 ) (a) (i) of that 314 Act.
Charge was framed on that count against the appellant and he pleaded guilty to the same.
The trial magistrate took the view that the appellant, who was aged about 20 years, was in a repentant mood.
The appellant was, in the circumstances, directed to furnish bond under section 4 of the .
The bond was thereafter furnished by the appellant.
On revision, the sentence was altered by the High Court as mentioned above.
In appeal Mr. Kohli on behalf of the appellant has referred to the matriculation certificate which was produced on behalf of the appellant and according to which the date of birth of the appellant was May 8, 1947.
It is argued that as the age of the appellant on the date of his conviction by the trial magistrate was less than 20 years, the appellant was rightly given the benefit of the provisions of the .
The High Court, according to the learned counsel, was in error in awarding the sentence of imprisonment and fine to the appellant.
As against that Mr. Mahajan on behalf of the respondent has contended that the provisions of the cannot be invoked by an accused convicted of an offence under section 7 read with section 16 of the Prevention of Food Adultera tion Act.
Mr. Mahajan has not disputed that the age of the accused was less than 20 years on the date of his conviction by the trial magistrate, but, according to the learned counsel, that fact could make no difference.
There is, in our opinion, considerable force in the stand taken on behalf of the appellant by his learned counsel and we find ourselves unable to accede to the submission made on behalf of the respondent State.
The received ,the assent of the President on May 16, 1958 and was published in the Gazette of India dated May 19, 1958.
According to subsection (3) of section 1 of that Act, it shall come into force in a State on such date as the State Government may, by notification in the Official.
Gazette, appoint, and different dates may be appointed for different parts of the State.
The fact that the Act was in force in the State of Punjab before the sample of ice cream was taken from the appellant has not been disputed before us. 'Section 3 of the Act gives power to the court to release certain offenders after admonition.
According to that section, where any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both under the Indian Penal Code or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, .having regard to the circumstances of the case including the nature 315 of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.
The relevant part of sub section (1) of section 4 and sub section (1) of section 6 of the Act read as under : "4(1) When any person is found guilty of having committed on offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behavior." "6(1) When any person under twenty one years of age is found guilty of having committed an, offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
" The , as observed by Subba Rao, J. (as he then was) speaking for the majority in the case of Rattan Lal vs State of Punjab(1), is a milestone in the progress of the modem liberal trend of reform in the field of penology.
It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him.
Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence.
While in the case of offenders who are above the (1) ; 316 age of 21 years absolute discretion is given to the court to release ,them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years, an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under sections 3 and 4 of the Act.
It is Manifest from plain reading of sub section (1 ) of section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years.
On the contrary, the said sub section is applicable to persons of all ages subject to certain conditions which have been specified therein.
Once those conditions are fulfilled and the ,other formalities which are mentioned in section 4 are complied with, power is given to the court to release the accused on probation of good conduct.
Section 6 of the Act deals specifically with persons under twenty one years of age convicted by a court for an offence punishable with imprisonment other than imprisonment for life.
In such a case an injunction is issued to the court not to sentence the young offender to imprisonment, unless the court is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender (it would not be desirable to release him after admonition under section 3 or on probation of good conduct under section 4 of the Act.
Sub section (1) of section 16 of the provides the punishment which may be awarded to a person found guilty of the various offenses under that Act.
According to the above sub section, such a person, in addition to a penalty to which he may be liable under section 6, with which we are not concerned, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees.
There follows a proviso, according to which the court May, in case of some of the offenses under the Act, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
The question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed .by the legislature for a person found guilty of the offence under 317 the , the court can resort to the provisions of the .
In this respect we find that sub section (1) of section 4 of the contains the words "notwithstanding anything contained in any other law for the time being in force".
The above non obstante clause points to the conclusion that the provisions of section 4 of the would have overriding effect and shall prevail if the other conditions prescribed are fulfilled.
Those conditions are (1) the accused is found guilty of having committed an offence not punishable with death or imprisonment for life, (2) the court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, and (3) the accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behavior.
Sub section (1) of section 6 of the above mentioned Act, as stated earlier, imposes a duty upon the court when it finds a person under 21 years of age, guilty of an offence punishable with imprisonment other than imprisonment for life, not to sentence him to imprisonment unless the court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it would not be desirable to deal with him under sections 3 or 4 of the Act but to award a sentence of imprisonment to him.
The under lying object of the above provisions obviously is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals.
So far as persons who are less than 21 years of age are concerned, special provisions have been enacted to prevent their confinement in jail at young age with a view to obviate the possibility of their being subjected to the pernicious influence of hardened criminals.
It has accordingly been enacted that in the case of a person who is less than 21 years of age and is convicted for an offence not punishable with imprisonment for life, he shall not be sentenced to imprisonment unless there exist reasons which justify such a course.
Such reasons have to be recorded in writing.
According to section 18 of the , the aforesaid Act shall not affect the provision of sub section (2) of section 5 of the Prevention of Corruption Act, 1947 (Act 2 of 1947).
The last mentioned provision, namely, sub section (2) of section 5 of the Prevention of Corruption Act, prescribes, in the absence of special reasons, a minimum sentence of imprisonment for a term of not less than one year for those convicted 318 under section 5 of that Act.
If the object of the legislature was that the provisions of the should not apply to all cases where a minimum sentence of imprisonment is prescribed by the statute, there was no reason to specify subsection (2) of section 5 of the Prevention of Corruption Act in section 18 of the .
The fact that out of the various offenses for which the minimum sentence is prescribed, only the offence under sub section (2) of section 5 of the Prevention of Corruption Act has been mentioned in section 18 of the and not the other offenses for which the minimum sentence is prescribed, shows that in case of such other offenses the provisions of can be invoked.
The provisions of , in our opinion, point to the conclusion that their operation is not excluded in the case of persons found guilty of offenses under the .
Assuming that there was reasonable doubt or ambiguity, the principle to be applied in Construing a penal act is that such doubt or ambiguity should be resolved in favour of the person who would be liable to the penalty (see Maxwell on Interpretation of Statutes, p. 239, 12th Edition).
It ha,,; also to be borne in mind that the was enacted in 1958 subsequent to the enactment in 1954 of the .
As the legislature enacted the despite the existence on the statute book of the , the operation of the provisions of cannot be whittled down or circumscribed because of the provisions of the earlier enactment, viz.
Indeed, as mentioned earlier, the non obstante clause in section 4 of the is a clear manifestation of the intention of the legislature that the provisions of the would have effect notwithstanding any other law for the time being in force.
We may also in this context refer to the decision of this Court in the case of Ramji Missir vs State of Bihar(1) wherein this Court while dealing with the observed that its beneficial provision,, should receive wide interpretation and should not be read in a restricted sense.
Adulteration of food is a menace to public health.
The has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food.
In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months (1) [1962] Suppl.
2 S.C.,R. 745.
319 and a fine of rupees one thousand has been prescribed, the courts should not lightly resort to the provisions of the in the case of persons above, 21 years of age found guilty of offenses under the .
As regards persons under 21 years of age, however, the policy of the law appears to be that such a person in spite of his conviction under the , should not be deprived of the advantage of which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology.
Mr. Mahajan has argued that if the trial magistrate took the view that the accused appellant in view of Ms age, should not be sentenced to undergo imprisonment, the learned magistrate should still have imposed the sentence of fine as prescribed by subsection (1) of section 16 of the Act.
In this respect we are of the opinion that a sentence of fine also carries with it the consequence of imprisonment in case the accused fails to pay the fine.
As the object of is to avoid imprisonment of the person covered by the provisions of that Act, the said object cannot be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine.
The High Court in the present case did not consider the pro visions of the and its attention does not appear to, have been invited to the mandatory provisions of section 6 of that Act.
In view of the fact that the accused was less than 20 years of age and appeared to be in a repentant mood, the trial court took action under section 4 of the .
The High Court, in our view, was in error in interfering with the above order of the trial magistrate.
We, therefore, accept the appeal, set aside the order of the High Court and restore that of the trial magistrate.
V.P.S. Appeal allowed.
| Pursuant to an order by a Muslim ruler of an erstwhile princely State, the respondent was allotted a house and he was living in it.
After the merger of the princely State with the appellant State, rent was demanded from the respondent and he filed a suit for a declaration that be was the owner in possession of the house; and in the alternative, that he was a licensee entitled to remain in possession for life without payment of any rent.
The High Court, in second appeal, held that the use of the Urdu words 'inteqal ' and 'atta ' showed that the Ruler intended the order to be a valid declaration of gift under Mohammedan Law and that when the respondent took possession of the house, he became its owner.
The High Court also held that no other evidence was admissible for deciding on the Ruler 's intention.
Allowing the appeal to this Court, HELD : (1) There being no mention in the order either of rights of ownership or those of a life estate holder, the mere use of the two words, did not determine what was meant to be granted.
The word 'inteqal ' is used in connection with a transfer of property, but in the context of its use here, it could only indicate that the respondent was to have change or transfer his residence in the physical sense.
The word 'atta ' is used to denote all kinds of grants including a mere permission to live in a house.
Therefore, assuming that the order reduced the terms of a grant to writing, oral and other evidence was both necessary and admissible under section 92, proviso (6), Evidence Act, to resolve the latent ambiguity.
The evidence adduced in the case, however, is more consistent with the view that the Ruler meant to resolve the immediate financial difficulty of the respondent by giving him free residential accommodation than with a conferment of the ownership of or a life interest in the house.
[346 B H] (2) There was no declaration of any gift either of the corpus or the usufruct and the admissible evidence relating to the nature of the transaction, which the High Court should have considered, showed, that the transaction amounted to nothing more than a grant of a licence revocable at the grantor 's option.
From the mere expenditure by the respondent of money over some necessary repairs, an inference of a larger grant cannot be drawn.
[347 C. E]
|
Appeal No. 1323 of 1966.
Appeal by special leave from the judgment and order dated September 10, 1965 of the Allahabad High Court in Civil Miscellaneous Writ No. 3567 of 1965.
Niren De, Addl.
Solicitor General and N. H. Hingorani, for the appellant.
R.K. Garg, D. K. Agarwala and M. V. Goswami, for respon dent No. 1.
The appellant will be so entitled, if it is held to be 'a railway ', as contended, on behalf of the appellant.
The High Court of Allahabad, in its order and judgment, under appeal, has held that the appellant is not a railway, but only a tramway and, as such, not eligible for exemption, from the tax, in question.
The short facts, leading to this appeal, may now be briefly set out.
The appellant is a limited liability company; and it runs a railway, between Shahdara, in Delhi, and Saharanpur, in the State of Uttar Pradesh a distance of about 95 miles or 148.865 kilo meters.
The appellant company also operates within the municipal area of Saharanpur.
The company was, originally, registered as a tramway, under the (Act XI of 1886) (hereinafter called the Tramways Act), on November 20, 1905.
By Notification, No. 5752, dated July 5, 1907, the Governor General in Council extended to the appellant company, the whole of the Indian Railways Act, 1890 (Act I of 245 1890) (hereinafter called the Railways Act), excepting the provisions of Section 135.
The Municipal Board of Saharanpur, the first respondent herein, imposes a terminal tax, under the provisions of section 128(1)(xiii) of the United Provinces Municipalities Act, 1916, as amended by Act I of 1918.
Under the said Act, the first respondent has prohibited the importation of goods, within the local limits of the Saharanpur Municipality, by rail, until the tax leviable thereon, or in respect thereof, has been paid, in accordance with the provisions of the Act and the Rules.
The Board has also framed rules for the assessment and collection of Terminal Tax, as authorized by the Government Notification No. 856/XI D.T. 3, dated May 1, 1919.
The rules have been amended, as per another notification, No. 5965/XI D.T. 3, dated September 21, 1939.
Item 2, of Schedule B, of, these rules, provides for a list of articles being exempted from payment of Terminal Tax.
The said item is as follows : "Railway stores and materials, which are required for use on Railways, whether in construction, maintaining or working the same and which are not removed outside the Railway land boundaries but not stores imported into Municipal limits for purchase and consumption by Railway employees nor stores with which Railway Cooperative Stores are stocked for sale to Member.
" It is the claim of the appellant that, till 1961, the first respondent has never imposed any terminal tax, on 'railway stores and materials ' required for use on the railway of the appellant company, for the purposes mentioned in item 2 of Schedule B.
But, for the first time, in January 1962, according to the appellant, the first respondent imposed tax on such stores and attempted to make the appellant liable.
The appellant company protested against this levy, on the ground that, it being a railway, was entitled to the exemption provided in respect of 'railway stores and materials, which are required for use on railway '.
But, the first respondent, by its order, dated October 11, 1962, over ruled the appellant 's objections in this regard.
An appeal, taken by the appellant company, to the Additional District Magistrate, Saharanpur, under section 160 of the Municipalities Act, read with the relevant Rules, did not meet with success, as the said Magistrate rejected the appeal, by his order dated May 25, 1965.
The appellant company filed Civil Miscellaneous Writ No. 3567 of 1965, in the High Court of Allahabad, challenging the levy of terminal tax and claimed exemption, under item 2, of Schedule B, referred to earlier.
The learned Judges of the Allahabad High Court, by their judgment, dated September 10, 1965, dismissed 246 the writ petition.
They were of the view that the appellant company was not 'a railway ', but 'a tramway ' constructed tinder the Tramways Act.
In this connection, the learned Judges adverted to the Railways Act, which defines both the terms 'tramway ' and ' railway '.
It is their view that when a tramway and a railway, are both separately defined in an Act, a tramway cannot also be a railway.
The learned Judges, of the High Court, then referred to the fact that so far as the appellant company was concerned, the Central Government had not applied section 135 of the Railways Act, though all the other provisions of that Act had been applied.
They further held that a mere application of the Railways Act, in whole or in part, to a tramway, will not convert the tramway into a railway and that, in order to be a railway, it has to be opened, in accordance with the provisions contained in Chapter IV, of the Railways Act.
So, they concluded that, inasmuch as the appellant railway was not opened, in accordance with the provisions of the Railways Act, it had been, from its inception, and it continued to be, not a railway, but only a tramway.
On this line of reasoning, the High Court further held that in the rules framed by the Municipal Board, the expression 'railway ' must be intended to refer only to 'railways ' coming under the Railways Act, and could not include a 'tramway ', like the appellant, opened under the Tramways Act.
In consequence, the claim of the appellant, for exemption, was, according to the High Court, rightly rejected by the authorities.
The result was the dismissal of the appellant 's writ petition, by the High Court.
We shall now refer to the main features of the appellant company.
The appellant railway is worked by steam, or other mechanical power, and is not wholly within a Municipal area.
The railway line comprises narrow gauge track of 2 6" gauge, and consists of main line, transportation sidings and commercial sidings. 'Me line passes through four districts viz. Saharanpur, Muzaffarnagar, Meerut and Delhi, within the provinces of Uttar Pradesh and Delhi.
The system has about 155 level crossings, comprising of Special Class, A class, B class and C class.
Some of the level crossings are provided with signalling and interlocking arrangements and the system takes in 406 bridges, and 26 railway stations ' in all.
The bridges and culverts are maintained, in accordance with the instructions contained in 'Way and Works Manual ' of the Indian Railways, and the railway stations are fitted with Morse speakers and instruments, for working trains, as per general rules applicable to all railways.
There is annual inspection of the railway line, by the Additional Commissioner of Railways Safety, appointed by the Government, to inspect Indian Railways.
There are arrangements for through booking of goods and passengers.
From 247 what is stated above, it will be seen that the appellant company is a 'railway ', as commonly understood, and described in ordinary parlance.
The Tramways Act was an Act passed to facilitate the con struction and to regulate the working of Tramways.
Section 3(5) defines 'tramway ' as follows : " 'tramway ' means a tramway having one, two or more rails, and includes (a)any part of a tramway, or any siding, turnout, connection, line or track belonging to a tramway; (b) any electrical equipment of a tramway; and (c) any electric supply line transmitting power from a generating station or sub station to a tramway or from a generating station to a sub station from which power is transmitted to a tramway.
" The expression 'order ', under section 3(6), means an order authorizing the construction of a tramway under the Act, and includes a further Order substituted for, or amending, extending or varying, that order.
There are various other provisions in this Act relating to the construction and maintenance of tramways, orders authorizing the construction of tramways, and other incidental matters.
The Railways Act was an Act to consolidate, amend and add to the law relating to Railways in India.
Section 3(1) defines 'tramway ' as meaning a tramway constructed under the Tramways Act.
or any special Act relating to tramways.
Section 3(4) defines 'railways ' and is as follows " railway ' means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods, and includes (a)all land within the fences or other boundary marks indicating the limits of the land appurtenant to a railway; (b)all lines of rails, sidings or branches worked over for thepurposes of, or in connection with, a railway; (c)all stations, offices, warehouses, wharves, work shops,manufactories, fixed plant and machinery and other works constructed for the purposes of, or in connection with, a railway; and (d) all ferries, ships, boats and rafts which are used on inland waters for the purposes of the traffic of a railway and belong to or are hired or worked by the autho rity administering the railway.
" 248 This Act also contains various provisions relating to the opening of railways, inspection of railways, construction and maintenance of works, working of railways and several other incidental matters.
Section 135, occurring in Chapter X, containing supplemental provisions, relates to taxation of railways by local authorities.
That section reads : " 135.
Notwithstanding anything to the contrary in any enactment, or in any agreement or award based on any enactment, the following rules shall regulate the levy of taxes in respect of railways and from railway adminis trations in aid of the funds of local authorities, namely : (1)A railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the Central Government has, by notification in the Official Gazette, declared the railway administration to be liable to pay the tax.
(2)While a notification of the Central Government under clause (1) of this section is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or, in lieu thereof, such sum, if any, as an officer appointed in this behalf by the Central Government may, having regard to all the circumstances of the case, from time to time determine to be fair and reasonable.
(3)The Central Government may at any time re voke or vary a notification under clause (1) of this section.
(4)Nothing in this section is to be construed as debarring any railway administration from entering into a contract with any local authority for the supply of water or light, or for the scavenging of railway premises, or for any other service which the local authority may be rendering or be prepared to render within any part of the local area under its control.
(5) 'Local authority ' in this section means a local authority as defined in the General Clauses Act, 1887, and includes any authority legally entitled to or entrusted with the control or management of any fund for the maintenance of watchmen or for the conservancy of a river.
" The point to be noted, in this provision, is that unless a notification has been issued by the Central Government, under sub section
(1) of section 135, declaring a railway administration to be liable to pay a tax, a railway administration shall not be liable to pay any tax in 249 aid of the funds of any local authority.
Section 146, giving power to the Government to extend the Railways Act to certain tramways, is as follows: "146.
(1) This Act or any portion thereof may be extended by notification in the Official Gazette (a) to any tramway which is wholly within a municipal area or which is declared not to be a railway under clause (20) of article 366 of the Constitution, by the State Government; and (b) to any other tramway, by the Central Government.
(2) This section does not apply to any tramway not worked by steam or other mechanical power.
" We have already pointed out that all the provisions of the Railways Act, except section 135, have been extended to the appellant company.
The next enactment to be referred to is the (Act X of 1895), which provided for the payment, by railway companies, registered under the Indian Companies Act, 1 882, of interest out of capital during construction.
Section 2(1) defines 'railway ' as meaning a railway as defined in section 3, cl.
(4) of the Railways Act.
Section 3 provided for a railway company paying interest on its paid up share capital, out of capital, for the period, and subject to the conditions and restrictions contained in that section.
There are other consequential provisions, in this Act.
The (Act IV of 1902) was one to apply the provisions of the , to certain tramway companies.
The preamble to this Act IV of 1902, stated that it was expedient to apply the provisions of the , to companies formed for the construction of tramways 'not differing in structure and working from light railways '.
This preamble will clearly show that, even as early as 1902, the Legislature considered that though certain systems were called 'tramways, substantially they did not differ, in structure and working, from light railways.
The expression 'railway ' is defined, in section 311(2) of the Government of India Act, 1935, as follows : " railway ' includes a tramway not wholly within a municipal area.
" It is to be noted that if a system, though a tramway, is wholly not within a municipal area, that system will be a 'railway '.
Entry 250 58, of List 1 (Federal List) of the Seventh Schedule to the 1935 Act, was : "Terminal taxes on goods or passengers carried by railway or air; taxes on railway fares and freights.
" It is, again, to be noted, that under this Entry, in respect of a tramway, which is not wholly within a municipal area and which will, therefore, be a 'railway ', under section 311(2), the levy of terminal tax on goods or passengers carried by such a system, will be within the competence of the Federal Legislature.
Under article 366(20) of the Constitution, the expression 'rai lway ' is dealt with, as follows : " railway ' does not include (a) a tramway wholly within a municipal area, or (b) any other line of communication wholly situate in one State and declared by Parliament by law not to be a railway.
" It may be noted here that the appellant 's system does not come within the exclusions mentioned in cls.
(a) or (b) of this definition.
Entry 89 of List 1 (Union List), of the Seventh Schedule to the Constitution, is as follows : "Terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights." ' It may be noted that the competent legislative body to levy terminal taxes on goods or passengers, carried by the appellant 's system, which will be a 'railway ', under article 366(20), is the Parliament.
The only other Act to be referred to is the (Act XXV of 194 1 ), which was an Act to regulate the extent to which railway property shall be liable to taxation imposed by an authority.
Section 3(1) of that Act provided that a railway administration shall be liable to pay any tax in aid of the funds of any local authority, if the Central Government, by notification in the Official Gazette, declared it to be so liable.
Section 4 provided for the Central Government, by notification in the Official Gazette, revoking or varying any notification issued under section 135(1) of the Railways Act.
The learned Additional Solicitor General, appearing for the appellant, pointed out that the expression 'railway ' had not been defined in the United Provinces Municipalities Act, or in the Terminal Tax Rules.
In the absence of any special definition contained in the provisions, granting the exemption, in question, the expression 'railway ', occurring in item 2, of Schedule B, of the Terminal Tax Rules, must bear the commonly understood meaning of 'a carriage of passenger and goods, on iron rails '.
By virtue of the definition, in section 311(2) of the 1935 Act, and the provision, 251 corresponding to it, in the Constitution, viz., article 366(20), the appellant 's system, though registered under the Tramways Act, was a railway.
The mere fact that section 135, of the Railways Act, had not been applied to the appellant 's system, is not a decisive factor against the appellant, as had been assumed by the High Court.
In view of the various features of the appellant 's system, and pointed out by us earlier, it is argued that the appellant 's system is a 'railway ', both in law and in fact.
It satisfies all the ingredients of a railway and, if that is so, the appellants are entitled to the exemption provided for, under item 2 of Schedule B, of the Terminal Tax Rules.
On the other hand, Mr. Garg, learned counsel appearing for the respondent Board, pressed before us for acceptance the various reasons, given by the High Court, for holding that the appellant is not entitled to claim be exemption.
In particular, counsel pointed out that there were two different enactments, one dealing with 'tramways ' and the other with 'railways ', being the Tramways Act and the Railways Act, respectively.
Therefore, there were two diff erent systems, under two different names, namely 'tramways ' and 'railways ', which was clearly known to the authorities concerned at the time when the Terminal Tax Rules were framed, and so when the expression 'railway ' was used in the exemption clause, it must have been the intention of the framers of the Rules to bring, within its ambit, only the 'railways ' constructed under the Railways Act.
The appellant 's system, though called a 'railway ' and though it might have ill the features of i railway, it is pointed out, nevertheless, that inasmuch is it has been constructed under a different enactment, viz., the Tramways Act, it cannot be treated as a 'railway ' for the purposes of the exemption.
Counsel also stressed that section 135 of the Railways Act had not been applied to the appellant.
We are not impressed with the approach made by the learned Judges of the High Court, for negativing the claim for exemption, made by the appellant.
It must be borne in mind that the expression 'railway has not been defined either in the concerned Municipalities Act, orthe Rules; if such is the case.
, the definition must hold the field.
Going by the definition of the expression ' railway ', containedin section 311(2) of the Government of India Act, 1935, and the corresponding provision in article 366(20) of the Constitution, the appellant 's system is a 'railway '.
All the provisions of the Railways Act have been extended to the appellant, excepting section 135.
In our opinion, if the appellant is a 'railway ', otherwise, the mere fact that the provisions of section 135, of the Railways Act, have not been applied, is of no consequence.
We have already referred to the fact, which is not in dispute, that the appellant 's railway passes through four districts in U.P. and 252 Delhi, and that it has got all the features of a railway, as ordinarily understood.
In this connection, we may refer to certain English decisions, where the claim, made on behalf of a system, for being taxed at a concessional rate, had come up for consideration.
In Blackpool and Fleetwood Tramroad Company vs Thornton Urban Council(1), the Court of Appeal had to consider as to how far the Blackpool & Fleetwood Tramroad Company, the appellant before them, was entitled to the assessment, at a lower rate under section 211 (1) (b), of the Public Health Act, 1875 (38 & 39 Viet.
c. 55).
The material portion of that section was : "the occupier of any land .
used only as a canal .
or as a railway, constructed under the powers of any Act of Parliament, for public conveyance, shall be assessed in respect of the same in the proportion of one fourth part only of the net annual value thereof.
" The question was as to whether the appellant, in that case, was a 'railway ', to whom the said provision would apply.
The appellant company had constructed and maintained a tramroad connecting two systems of tramways, under the local Acts of 1896 and 1898.
Various provisions of the Railways Clauses Consolidation Act, 1845, had been applied to the tramroad.
The tramroad, in that case, was on rails laid on sleepers, fenced off from adjoining land, excepting at the level crossings of roads.
The Divisional Court had rejected the claim of the appellant; but the Court of Appeal held that the tramroad was land 'used only as a railway constructed under the power of an Act of Parliament for public conveyance, within the meaning of section 21 1 (1)(b) of the Public Health Act, 1875, and that the company was, consequently, entitled to be assessed, in respect of the said 'railway ', at onefourth of its net annual value.
The appellants contended that the tramroad was and could only be worked as a railway and was, in fact and in law, used as a railway, and, in consequence, they urged that the tramroad, maintained by them, is 'land ' used only as a railway.
The Court of Appeal noted that the rails were raised and laid on sleepers, just as a railway is laid, and that was the main distinction between the appellant 's system, and a tramway, which ran along public streets and in grooved rails.
No doubt, it was pointed out for the Urban Council, that the appellant company had been incorporated under the Tramways Act and the very fact that certain provisions of the Railway Clauses Consolidation Act were applied to the appellant 's system showed that the appellant was not a railway.
The Court of Appeal held that it was impossible to distinguish the piece of tramroad, owned by the (1) L. R. [190711 K.B.D. 568.
253 appellants, from a railway and that the exemption provided for in the Public Health Act applied to the tramroad of the appellants as it would, to any ordinary railroad passing through parts where it was not deriving the full benefit from the district rates in those parts.
The Court of Appeal also rejected the contention of the Urban Council that the tramroad, owned by the appellants could be treated as a 'railway ' only for particular purposes, and not for the purpose of claiming the exemption under the Public Health Act; because, according to the Court of Appeal, a reading of section 211 (1) (b) of the Public Health Act, showed that it applied to land used as a railway, i.e., constructed as a railway in fact.
This decision was taken up in further appeal, before the House of Lords, whose decision is reported as Thornton Urban Council vs Blackpool and Fleetwood Tramroad Company(1), and the decision of the Court of Appeal was confirmed.
In the course of the judgment, after referring to section 211 of the Public Health Act, Lord Macnaghten observed, at p. 267 : "Now it cannot be denied that the rails on which the tramcars run, with the embankment or foundation on which they rest, and everything that supports them, do form a road or way, and that that road or way was constructed under parliamentary powers for public conveyance.
Is it 'a railway '? There is nothing in the Public Health Act, 1875, or in the earlier Acts, in which the same provision is found, to confine the word ' railway ' as used in those Acts to a particular kind of railway, or to limit the generality of the expression in any way.
" His Lordship, further observed at p. 268 : "It seems to me that if it is a railway in fact, not differing from other railways in any material particular, it is nonetheless a railways because the promoters in their special Act chose to call it a 'tramroad ' a very convenient term to use for the title of their Act and the name under which they sought incorporation.
Nor is it the less a railway because some only of the sections of the Railways Clauses Consolidation Act are incorporated in the special Act, or because, if one did not know what the thing really was, the language used for the purpose of applying the sections which are incorporated might seem to import that it was not, properly speaking, a railway at all.
You must look at the special Act to see that it confers the appropriate powers of construction.
Every thing else in the Act is, I think, beside the question which this House has now to determine." (1) 254 In our opinion, the observations of the House of Lords, ex tracted above, are apposite, to the case on hand.
We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression 'railway ', and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word 'railway ', in item 2 of Schedule B, is used only to refer to a 'railway ' registered under the Railways Act or to limit the generality of the expression 'railway ' in any way.
Under those circumstances, if the appellant is a 'railway ' in fact, as commonly understood there does not appear to be any serious controversy on that point it will be a 'rail way ', notwithstanding the fact that it is registered as a 'tramway ', under the Tramways Act.
The legislature itself has applied the various provisions of the Railways Act to the appellant, and the appellant also satisfies the definition of a 'railway ' under the Government of India Act, 1935, and the Constitution.
The provisions of the , have also been applied to the tramways constructed, under the Tramways Act, by the Indian Tramway Act of 1902.
The second preamble to the last mentioned Act, clearly shows that the tramways, to which the Indian Railway Companies, Act was made applicable, '#,lo not differ in structure and working from railways '.
The object underlying the exemption under item 2, of Sche dule B, to the Terminal Tax Rules, is also not far to seek.
The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards.
Therefore, in our opinion, the appellant satisfies the definition of a 'railway ', so to be entitled to the exemption provided under item 2 of Schedule B.
Before we close the discussion, we ",ill also refer to the decision of th House of Lords in Tottenham Urban Council vs Metropolitan Electric Tramways, Ltd.(1).
The same question regarding the eligibility of a 'tramway ' for exemption, under section 21 1(1)(b) of the Public Health Act, 1 875, came up for consideration in that case.
From the judgment, it will be seen that the company were working, as a connected system, a tramway and a light railway, which were constructed in and along certain public streets and roads, in the district of the urban Council.
The 'tramway ' was constructed under the Tramway Acts and Orders and the 'railway, ' under the Light Railways Act, 1896.
Both were identical as to the mode of construction and materials used.
The claim of the company in respect of the 'railway ', as such, for assessment at a lower rate.
was accepted; but, so far as the 'tramway ' ",as concerned, the House of Lords held that it is not a 'railway ', within the meaning of section 21 1(1)(b), of the Public Health Act, 1875.
The (1) L. R. [1913]1 A. C. 702.
255 reason given by the House of Lords, for not accepting the claim of the tramway, was that in the great bulk of public legislation, relating to railways, the legislation has universally been understood and interpreted by Courts as applying only to that which is popularly known as a 'railway ', and not to that which is Popularly known as a 'tramway '.
And special emphasis is laid by the House of Lords that the legislature has used the word 'railways ' and not 'railways and tramways ', in section 211 of the Public Health Act, 1875.
We are only adverting to this decision to show that, on the basis of an interpretation placed by the Courts, the House of Lords held that the word 'railways ', in the Public Health Act, 1875, will not take in 'tramways '.
But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us.
On the other hand, the position is exactly the opposite, as will be seen from the Government of India Act, 1935, and the Constitution.
Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a .railway '.
In our opinion, the principles laid down by the House of Lords in Thornton Urban Council vs Blackpool and Fleetwood Tramroad Company(1), apply to the particular matter on hand and, we hold that the appellant, being a 'railway ', is entitled to the exemption under item 2, of Schedule B, to the Terminal Tax Rules, in question.
We, accordingly, allow the appeal and set aside the judgment of the High Court, and further direct that a writ will issue, as prayed for by the appellant.
The appellant will be entitled to its costs, from the first respondent, both in this Court and in the High Court.
G. C. Appeal allowed.
| The appellant company ran a narrow gauge railway between Shahdara and Saharanpur.
As it operated partly within the Municipal area of Saharanpur the Municipal Board of that place sought to subject railway stores and materials brought within the municipal area to terminal tax as provided by the Rules framed under the United Provinces Municipalities Act, 1916, as amended by Act 1 of 1918.
The exemption from terminal tax given to railway stores and materials by item 2 to Schedule B of the said rules was denied to the appellant company on the ground that it was a 'tramway ' and not a 'railway '.
The company had been originally registered in 1905 under the , (Act 11 of 1886); in 1907 the whole of the Indian Railways Act, 1890, (Act 1 of 1890) with the exception of section 135 had been extended to the company by the Governor General in Council.
The Company 's claim that it was a 'railway ' entitled to the exemption under item 2 of Schedule B aforesaid, was rejected by the Municipal authorities as well as in appeal, by the Additional District Magistrate.
The company therefore filed a writ petition before the High Court which was rejected.
By special leave appeal was filed to this Court.
It was contended on behalf of the appellant that : (i) in the absence of any special definition contained in the provisions granting the exemption in question, the expression 'railway ' occurring in item 2 of Schedule B of the Terminal Tax Rules must bear the commonly understood meaning of a "carriage of passenger send goods, on iron rails"; (ii) by virtue of the definition in section 311(2) of the Government of India Act, 1935, and the provision corresponding to it in the Constitution viz., article 366(20) the appellant 's system though registered under the Tramway.% Act, was a railway, (iii) the mere fact that section 135 of the Railways Act had not been applied to the appellant 's system was not a decisive factor against the appellant as assumed by the High Court.
It was not in dispute that appellant 's system had all the features of a railway.
HELD:Neither the Municipal Act nor the Terminal Tax Rules give any special definition of the expression 'railway ' and there is nothing in the said Act or Rules to indicate that the word 'railway ' in item 2 of Schedule B is used only to refer to a 'railway ' registered under the Rail ways Act or to limit the generality of the expression 'railway ' in any way.
Under those circumstances, if the appellant was a 'railway ' in fact.
, as commonly understood there did not appear to be any controversy on the point it would be a railway notwithstanding the fact that it was rep.
C.I./67 3 244 gistered as a 'tramway ' under the Tramways Act.
The legislature itself had applied the provisions of the Railway Act to the appellant, and the 'appellant also satisfied the definition of a 'railway ' under the Government of India Act, 1935 and the Constitution.
[254B D] If the appellant was a 'railway ' otherwise, the mere fact that the provisions of section 135 of the Railways Act had not been applied to it, was of no consequence.
[251H] Blackpool and Fleetwood Tramroad Company vs Thornton Urban Council, L.R. [1907] 1 K.B.D. 568, Thornton Urban Council vs Blackpool and Fleetwood Tramroad Company, L.R. [1909] AC. 264 and Tottenham Urban Council vs Metropolitan Electric Tramways, Ltd., , referred to.
|
Appeals Nos. 312 and 313 of 1966. 787 Appeals by special leave from the judgment and decree dated February 5, 1963 of the Gujarat High Court in Appeal No. 1009 of 1960 from original decree.
S.T. Desai, G. L. Sanghi, B.R. Agarwala and M. 1.
Patel, for the appellant (in C.A. No. 312 of 1966) and the respondent (in C.A. No. 313 of 1966).
K.L. Hathi, for respondents Nos.
1 to 8 (in C.A. No. 312 of 1966) and the appellants (in C.A. No. 313 of 1966).
N.S. Bindra and S.P. Nayar, for respondent No,. 9 (in C.A. No. 312 of 1966).
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 Gujarat dated February 5, 1963 in appeal No. 1009 of 1960 arising out of Civil Suit No. 64 of 1958 filed by Mussamiya Imam Haider Bax Razvi, appellant in Civil Appeal No. 312 of 1966 (hereinafter referred to as the plaintiff) against the respondents in Civil Appeal No. 312 of 1966 and the appellants (excepting the Charity Commissioner) in Civil Appeal No. 313 of 1966 (hereinafter referred to as the defendants).
The lands in dispute are located in the village Isanpur and form part of a 'Devasthan ' inam.
The 'Sanads ' were created in the name of the ancestors of the plaintiff as the Sarjudanashi of the estate of Shah Alam which was an estate consisting of 'Roza ', a mosque, a grave yard and several other properties.
The estate was last held by the father of the plaintiff who expired on or about March 9, 1948 leaving behind him the plaintiff who was then a minor as his only heir.
On August 26, 1948 the Collector of Ahmedabad was appointed as the guardian of the properties of the plaintiff by an order of the District Court, Ahmedabad.
Subsequently, on or about January 15, 1953, the then Bombay Government assumed management of the estate under the Court of Wards Act, 1905 (Bombay Act No: 1 of 1905) and appointed the Collector of Ahmedabad as the manager of the same.
The case of the plaintiff is that the defendants fraudulently entered into a conspiracy with the Collector 's subordinate staff for getting possession of the disputed lands.
In this connection the first defendant wrote to the District Collector, Ahmedabad on July 25, 1956 representing that certain persons formed or will form a Co operative Society for carrying on agriculture and therefore required the lands for that purpose.
Defendants 1, 2, 3 and 5 also made applications for that purpose alleging that they were Rabari, kept cattle and were residents of Ahmedabad but none of them had any agricultural land.
On account of the fraud of the defendants the Collector was prevailed upon to make an order 788 dated July 28, 1956 in breach of the provisions of sections 63 and 64 of the Bombay Tenancy and Agricultural Lands Act (Bombay Act 67 of 1948), hereinafter referred to as the 'Act ', and the Rules made thereunder granting possession of the lands to the defendants who were neither carrying on agriculture on cooperative basis nor ever formed a Co operative Society.
It was contended on behalf of the plaintiff that the lease granted to the defendants was void and the plaintiff was entitled to a decree for recovery of possession of the lands from the defendants and also for a sum of ' Rs. 10,000 for damages for use and occupation of the land prior to the date of the suit and ,for future mesne profits at the rate of Rs. 500 per month.
The main written statement was filed by the first defendant and his contention was that the Civil Court had no jurisdiction to hear the suit.
It was said that valid lease had been created in favour of the defendants and as a result of the coming into force of the Amending Act (Bombay Act No. 13 of 1956) the defendants had become statutory owners of the lands in question.
The suit came up for hearing before the 5th Joint Civil Judge, Senior Division at Ahmedabad who by his judgment dated July 30, 1960, held that the Civil Court had jurisdiction to hear the suit and the provisions of the Act did not apply to the suit lands and therefore the defendants were trespassers.
The learned Judge accordingly granted a decree in favour of the plaintiff for recovery of possession of the lands from defendants 1 to 8.
He also granted the plaintiff a decree for a sum of Rs. 10,000 as damages for use and occupation of the lands with interest at 6 per cent p.a. from August 1, 1956 till the date of the suit i.e., July 11, 1958.
The learned Judge further ordered that the plaintiff was entitled to recover mesne profits to be determined under O.20, r. 12, Civil Procedure Code.
Defendants 1 to 8 took the matter in appeal to the High Court of Gujarat, being First Appeal No. 1009 of 1960.
The High Court held: (1 ) that the defendants had failed to establish that they had become statutory owners of the suit lands on or before the date of the suit, (2) that the plaintiff had failed to establish that the lease created either on July 28, 1956 or on August 24, 1956 was vitiated by fraud, and (3) that the Civil Court had no jurisdiction to deal with the question as to whether the defendants were or were not tenants from the date of the suit and this question could only be decided by the Revenue Authorities.
For these reasons the High Court directed that under section 85A of the ' Act the following issue should be referred to the Mamlatdar having jurisdiction in the matter for his decision and that the officer shall communicate his decision, or, if there are appeals from the decision, the final decision, to the High Court as soon as possible.
The issue was as follows: "Do the defendants prove that they are tenants of the lands in suit?" The High Court further directed that the hearing of the appeal 789 should stand adjourned until after the relevant communication was received from the Revenue Authorities.
It is necessary at this stage to set out the relevant provisions of the Act as it stood at the material time.
Section 2(18) states: "2.
In this Act, unless there is anything repugnant in the subject or context, (18) 'tenant ' means a person who holds land on lease and include (a) a person who is deemed to be a tenant under section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent tenant; and the word 'landlord ' shall be construed accordingly;" Section 32(1) is to the following effect: "32.(1).
On the first day of April 1957 (hereinafter referred to as 'the tillers ' day") every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land, or (iii) the landlord has not terminated the tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands.
Provided that if an application made by the landlord under section 29 for obtain Sup.
C.1. 69 4 790 ing possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Gujarat Revenue Tribunal under the provisions of the Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed.
The date on which the final order of rejection is passed is hereinafter referred to as 'the postponed date '.
Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso.
" Section 32 F reads as follows: (1) Notwithstanding anything contained in the preceding sections, (a) where the landlord is a minor, or a widow or a person subject to any mental or physical disability or a serving member of the armed forces the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31.
Provided that where a person of such category is a member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day.
of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.
(b) Where the tenant is a minor or a widow or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause 791 (a) the right to purchase land under section 32 may be exercised ( i ) by the minor within one year from the date on which he attains majority; (ii) by the successor in title of the widow within one year from the date on which her interest in the land ceases to exist; Provided that where a person of such category is a.member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not, in a larger proportion.
Section 63 (1) reads thus "63.
(1 ) Save as provided in this Act, (a) no sale ,(including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist (or who being an agriculturist will, after such sale, gift, exchange, lease or mortgage, hold land exceeding two thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings Act, 1961, or who is not an agricultural labourer ): Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed.
Explanation.
For the purpose of this sub section the expression 'agriculturist ' includes any person who as 792 a result of the acquisition of his land for any public purpose has been rendered landless, for a period not exceeding tea years from the date possession of his land is taken for such acquisition.
Section 70 is to the following effect: "70.
For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar (a) to decide whether a person is an agriculturist; (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); (c) to decide such other matters as may be referred to him by or under this Act.
" Section 85 states: "(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation.
For the purposes of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act., 1906." Section 85A provides as follows: "( 1 ) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority ') the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shah communicate ifs decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable there Explanation.
For the purpose of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act, 1906.
" Section 88 reads "(1) Save as otherwise provided in sub section (2), nothing in the foregoing provisions of this Act shall apply (a) to lands belonging to, or held on 'lease from, the Government; (b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specific as being reserved for nonagricultural or industrial development; (c) to an estate or land taken . . . under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the ; (d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87: Provided that from the date on which the land is released from management, all the foregoing provisions of this Act shall apply there to; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land (a) the landlord shall be entitled to.
terminate the tenancy under section 31 or under section 33B in the case of a certificated land ' lord within one year from such date; and (b) within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy as aforesaid, the tenant shall have the right to purchase the land under section 32 (or under section 33C in the case of an excluded tenant); and 794 Rule 36 of the Bombay Tenancy and Agricultural Lands Rules, 1956 is to the following effect: "Conditions on which permission for sale etc.
of land.
under section 63 may be granted ( 1 ) The Collector or other officer authorized under the proviso to sub section (1 ) of section 63 shall not grant permission for the sale, gift, exchange, lease or mortgage of any land in favour of a person who is not either an agriculturist or an agricultural laboratory or who, being an agriculturist, cultivates personally land not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the following conditions are satisfied : (a) such a person bona fide requires the land for a non agricultural purpose; or (b) the land is required for the benefit of an industrial or commercial undertaking or an educational or charitable institution; or (c) such land being mortgaged, the mortgagee has obtained from the Collector a certificate that he intends to take the profession of an agriculturist and agrees to cultivate ,he land personally; or (d) the land is required by a Co operative Society; or The first question to be considered in this case is whether the High Court was right in taking the view that the plaintiff failed to establish that the lease created on August 24, 1956 was vitiated by fraud.
It was contended by Mr. S.T. Desai on behalf of the plaintiff that the trial court had reached the finding that there was a conspiracy between the defendants and the Collectables staff and the Collector was induced by fraud and misrepresentation to grant lease in favour of the defendants.
It was argued that there was no justification for the High Court to interfere with the finding of the trial Judge on this point.
Mr. S.T. Desai took us through the relevant documentary evidence on this issue but having perused that evidence, we are satisfied that the High Court was right in holding that the plaintiff had not established that there was any fraud or misrepresentation made to the Collector or that there was a conspiracy between the defendants and the City Deputy Collector or his subordinates.
In this connection, the High Court has referred to the circumstance that the offer made by the Collector in his letter, exhibit 51 embodies 795 the conditions which are capable of being explained on the ground that the Collector was aware of the fact that there was no Co operative Society in existence and that the defendants were not members of any! Co operative Society.
The High Court also referred to the application, exhibit 5 3 which contains an endorsement of the City Deputy Collector that the defendants were given the lands for cultivation on co operative basis.
The High Court also referred to the circumstance that neither the plaintiff nor his personal guardian had appeared in the witness box to support the allegation of fraud.
We are accordingly of the opinion that the High Court was right in expressing the view that the lease in favour of the defendants was not vitiated by fraud and Counsel on behalf of the plaintiff has been unable to make good his submission on this aspect of the case We pass on to consider the next question arising in this case, namely, whether the defendants had become statutory owners of the suit lands because of the provisions of section 32, section 32 F or section 88(1) of the Act.
It is necessary to state at the outset that the Amending Act No. 13 of 1956 came into force on August 1, 1956.
It is not disputed by the parties that the Act as it stood before the Amending Act 13 of 1956, applied to the suit land.
One of the sections which was amended by the Amending Act 13 of 1956 was section 88.
One of the effects of the amendment of section 88 was that sections 1 to 87A were not applicable to "an estate or land taken under the management of the Court of Wards".
So, it is not in dispute that after August 1, 1956 the provisions contained in sections 1 to 87A of the Act did not apply to the suit lands.
It is also admitted that after the cessation of the management by the Court of Wards the provisions of the Act again became applicable to the suit lands.
It has been found by the High Court upon examination of the evidence that the Court of Wards withdrew its superintendence on May 11, 1958 when the order for the release of the management was actually passed and not on May 11, 1957 when the plaintiff attained majority.
It is evident therefore that the Act applied to the suit lands before August 1, 1956, that sections 1 to 87A did not apply during the period between August 1, 1956 and May 11, 1958 which was the date on which the management of the estate by the Court of Wards ceased, and that the provisions of the Act again applied to the suit lands after the cessation of such management.
On behalf of the defendants the argument was presented that there was a valid lease granted on July 28, 1956 and the defendants were tenants on April 1, 1957 i.e., the date of 'the tillers day ' under section 32 of the Act and accordingly the defendants became statutory owners of the lands in suit under that section.
Mr. Hathi on behalf of the defendants challenged the finding of the High Court that there was no valid lease created on July 28, 1956, but having gone through the relevant documentary 796 and oral evidence, we are satisfied that the defendants have not substantiated their case that there was any valid lease of the lands on July 28, 1956 and the High Court was right in taking the view that the lease was created only on the execution of the ' 'Kabuliyat ' dated August 24, 1956.
It follows from this finding that the defendants were not tenants on the 'tillers ' day ' mentioned in section 32 of the Act.
The other question which arises in! this connection is whether the defendants became statutory owners because of the provisions contained in the first proviso to section 88 of the amended Act.
The High Court has found that the defendants were not subsisting tenants on May 11, 1958 which was the date on which there was a cessation of the management.
The reason was that the 'Kabuliyat ' dated August 24, 1956 was a period of.
one year and having regard to the fact that the Act was not applicable to the plaintiff 's estate from August 1, 1956 to May 11, 1958, the tenancy would expire on May 31, 1957 as provided for in the 'Kabuliyat ' itself.
The High Court therefore found that on the basis that the tenancy was created by the 'Kabuliyat ' dated August 24, 1956, the tenancy came to an end on May 31, 1957, so that there was no subsisting tenancy on the date of the cessation of the management.
If there wag.
no subsisting lease on May 11, 1958, the High Court was right in taking the view that the defendants had failed to establish that they had become statutory owners of the land by virtue of the first proviso to section 88 of the new Act.
We proceed to consider the next question arising in this case, namely, whether the Civil Court had jurisdiction to decide the question whether the defendants were tenants of the suit lands on July 28, 1956 or on May 11, 1958 and whether the lease was created in favour of the defendants on July 28, 1956 as claimed by them or on August 24, 1956 as claimed by the plaintiff.
Mr. Hathi addressed the argument that the question whether the defendants were tenants with effect from July 28, 1956 or thereafter was an issue which was expressly triable by a Revenue Court under section 70 of the Act and the jurisdiction of the Civil Court was barred.
It was argued that the issue of ownership was not the primary issue before the High Court and the main question was whether the defendants were or were not the tenants of the suit lands on the material date, namely, July 28, 1956 or on May 11, 1958 and such a question lay within the scope of the jurisdiction of the Revenue Authorities.
In other words, it was argued that the determination of the question whether the lease was created which subsisted after August 1, 1956 or which subsisted also on May 11, 1958 was not a matter within the scope of the jurisdiction of the High Court.
We are unable to accept the argument put forward by Mr. Hathi as correct.
Section 70 (b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the sub section 797 does not cast a duty upon him to decide whether a person was or was not a tenant in the past whether recent or remote.
The main question in the present case was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the 'tillers ' day ' or on the date of the release of the management by the Court of Wards.
In either case, the question for decision will be not whether the defendants were tenants on the date of the suit but the question would be whether they were or were not tenants in the past.
The question whether the defendants were tenants on July 28, 1956 or on May 11, 1958 was not an independent question but it was put forward by the defendants as a reason for substantiating their plea of statutory ownership.
In other words, the plea of tenancy on the two past dates was a subsidiary plea and the main plea was of statutory ownership and the jurisdiction of the Civil Court cannot therefore be held to be barred in this case by virtue of the provisions of section 70 of the Act read with the provisions of section 85 of the Act.
We are accordingly of the opinion that section 85 read with section 70 of the Act does not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act.
In this context, it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion.
As the Judicial Committee observed in Secretary of State vs Mask & Co.(1) "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied.
" In our opinion, there is nothing in the language or context of section 70 or section 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates.
We are also of the opinion that the jurisdiction of the Civil Court is not barred in considering the question whether the provisions of the Act are applicable or not applicable to the disputed land during a particular period.
We accordingly reject the argument of Mr. Hathi on this aspect of the case.
(1) 67 I.A. 222, 236. 798 The next contention on behalf of the plaintiff is that the High Court was in error in referring to the Mamlatdar under section 85A of the Act, the issue whether "the defendants were tenants of the land in suit".
It was pointed out by Mr. S.T. Desai that the High Court had rejected the contention of the defendants that the tenancy was created on July 28, 1956 but the defendants were tenants only with effect from August 24, 1956.
The High Court has further found that there was no subsisting tenancy on May 11, 1958 when there was a cessation of the management of the Court of Wards.
The suit was brought by the plaintiff on July 11, 1958 and the argument put forward on behalf of the plaintiff is that there was no plea on behalf of the defendants that there was any intervening act, event or transaction between May 11, 1958 and July 11, 1958 under which a fresh tenancy was created.
In other words, the argument on behalf of the plaintiff was that the only plea set up on behalf of the defendants was the plea of tenancy on July 28, 1956 which was the basis of the plea of statutory ownership.
It was said that there was no other plea of tenancy set up by the defendants subsequent to May 11, 1958 when the management of the Court of Wards ceased.
In our opinion, the argument is well founded and must be accepted as correct.
On behalf of the defendants Mr. Hathi referred to paragraphs 4 and 6 of the written statement of the first defendant dated September 18, 1958, but, in our opinion, both these paragraphs must be read together and the plea of tenancy in para 4 is based upon the: claim of the defendants that they were "lawful ' tenants of the suit lands and they got this right before August 1, 1956".
The plea of tenancy is therefore based upon the alleged lease of July 28, 1956 which is rolled up in the plea of substantive claim of statutory ownership.
On a proper interpretation of the language of paragraphs 4.
and 6 of the written statement we are satisfied that there is no independent plea of tenancy set up by the defendants as subsisting on ' the date of the suit and there was no issue which survived for being referred for the decision of the Mamlatdar under section 85A of the Act.
We are accordingly of the opinion that the High Court was in error in referring any fresh issue to the Mamlatdar but instead should have granted a decree to the plaintiff for recovery of possession the lands and also as to damages and mesne profits as decreed by the trial court.
For the reasons expressed we hold that Civil Appeal No. 312 of 1966 must be allowed and the judgment of the High Court dated February 5, 1963 should be set aside and the decree of the 5th Joint Civil Judge, Senior Division at Ahmedabad dated July 30.
1960 should be restored.
Civil Appeal No. 313 of 1966 is dismissed.
The plaintiff will be entitled to the costs of 799 this Court (one set of hearing fees) but we do not propose to make any order with regard to the costs incurred by the parties in the High Court.
The application filed by the defendants for leave to produce additional evidence in this Court is rejected.
C.A. 312 of 1966 allowed.
V.P.S. C.A. 313 of 1966 dismissed.
| The appellant filed writ petitions in the High Court of Rajasthan challenging the appointment of the Principals of three Medical Colleges affiliated to the University of Rajasthan on the ground that the persons appointed did not have the teaching experience necessary for ,these posts as laid down in Ordinance No.65 made by the Senate of the University under the University of Rajputana Act, 1946.
The appointments were defended on the basis of the proviso to sub r.
(4) of R 30 of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 made by the Governor of Rajasthan under article 309 of the Constitution.
Suh r.
(4) was added to R. 30 of the, Collegiate Branch Rules with retrospective effect during the pendency of the appellant 's writ petitions.
and provided that two years ' service rendered in lathe speciality would be reckoned as equivalent to one year 's teaching experience.
In view of this sub rule the High Court dismissed the appellant 's writ petitions.
In appeals to this Court by ocruficate it was contended on behalf of the appellants that (i) Ordinance No. 65 must prevail over R. 30(4) in the matter of teaching experience required; (ii) the retrospective amendment of R. 30 by the addition of Sub Jr.
(4) was mala fide; (iii) the provision in Ordinance 65 as regards teaching experience was mandatory.
HELD: Dismissing the appeals, The contention that the proviso to sub r.
(4) must yield to the Ordinance could not be accepted.
The Collegiate Branch Rules having been made pursuant to the power under article 309 of the Constitution must be given full effect subject to the provisions of any Act made by the appropriate Legislature regulating the recruitment and conditions of service of persons appointed to the Rajasthan Medical Service (Collegiate Branch).
Such Act need not specifically deal with the State Medical Service but it must be an Act as contemplated by article 309 by or under which provision is made regulating the recruitment and conditions of service taking within its fold the said Medical services.
[564 D E] Ordinance 65 made under the University of Rajputana Act and dealing inter alia with "emoluments and conditions of service of University teachers" was not a provision under an Act regulating the recruitment and conditions of service of persons appointed to Rajasthan Medical Service as contemplated by article 309 ' of the Constitution.
The University of Rajputana Act falls under Entry 11 List II which deal 's with the subject 560 education including universities ' and not under entry 41 List II dealing with 'State Public services '.
The field of operation of the Ordinance is restricted to the question of affiliation of the Colleges concerned with the Rajasthan University. ' If there is any violation of a provision of the Ordinance, then that may appropriately be taken into account by the Rajasthan University for the purpose of withdrawing or refusing to continue affiliation of the colleges in question.
No such action had been taken by the University in the present case.
The personsl appointed could not be said to be holding their posts without authority of law.
The appellant had no right to challenge their appointments.
[564 G, 565 D] (ii) The plea of mala fide was unsustainable.
There was noting to show that r. 30(4) was made for a collateral purpose in colourable exercise of the rule making power.
[565 F] [In view of the above findings no opinion was expressed on the question whether the powers of Ordinance No. 65 were mandatory].
|
iminal Appeal No. 84 Of 1968.
Appeal by special leave from the judgment and order dated Febru`ary 9, 12, 1968 of the Bombay High Court in Criminal Appeal No. 541 of 1966.
A.S.R. Chari, T.H. Sardar and M. 1.
Khowaja, for the appellant.
B.D. Sharma, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
The appellant along with two other persons were prosecuted on a charge under section 379/34 of the Indian Penal Code committing theft .of a valuable parcel of diamonds from the person of one Wadilal C. Mehta in a railway train between Masjid Bander and Byculla railway stations on November 9, 1965 in furtherance of their common intention.
One of these two other persons (hereinafter described as accused No. 2) was acquitted by the Chief Presidency Magistrate but the appellant and accused No. 3 were each sentenced to undergo rigorous 'imprisonment for l 2 months.
In appeal to the High Court the conviction of the appellant.
was altered to one under section 411 and the sentence was reduced to one of nine months ' rigorous imprisonment.
The appellant has come up to this Court by special leave his main contention being that a statement ascribed to him as having been made to the police was artificial and false and in any event there was no discovery of any fact made as a result of that statement to render it admissible in evidence against him under section 27 of the .
The case for the prosecution was as follows.
Mehta who had about 215 pieces of diamonds in paper packets wrapped in a silk handkerchief in the inside breast pocket of his garment got into a local train at Masjid Bander along with a companion at about 8 p.m. on 9th November 1965.
As the compartment which they wanted to board was already full of passengers, he and his 334 companion had to stand in the passage outside the compartment where there were many other persons already standing including .accused 2 and 3.
Taking exception to the posture of accused No. 2 who was in close contact Mehta asked him to stand erect and at the same time happened to notice a piece of his silk handkerchief lying on the floor of the compartment.
Feeling his garment the realised that his pocket had been picked and the packet of diamonds had disappeared.
Mehta and his companion caught hold of accused 2 and 3 and searched their persons but to no purpose.
At Byculla railway station they were dragged out of the train on to the platform by Mehta and his companion but the former managed to get free and slip, back into the train.
On shouts being raised the train was brought to a halt but the two accused could not be found.
Mehta went on to Victoria Terminus Railway station and lodged a complaint there about the happening.
He was shown a number of photographs kept at the police station and he pointed out therefrom three of the persons resembling the suspects concerned in the theft of his diamonds.
The police immediately got busy and on the basis of some information received started looking for the appellant but were not able to trace him that night.
The next morning (10 11 1965 the complainant went to the V.T. Railway station once more and identified the photographs of accused No. 2.
The appellant was arrested at 12.30 p.m. on November 10, 1965 and accused No. 2 was apprehended very shortly thereafter.
Both the them were brought to the C.I.D. office for interrogation.
Apparently being familiar with the modus operandi of pick pockets the police went round the offices of several newspapers in Bombay and at the office of Bombay Samachar Press S.I. Guad was told by Pawri, the advertisement manager of the Bombay Samachar, that two persons had come to their office on that day at about 11 a.m. for 'the purpose of putting in an advertisement about the recovery of a packet of diamonds.
S.I. Guad learnt from Pawri the name and address of one D.S. Parekh as one of the two persons who had earlier interviewed Pawri for the insertion of the advertisement.
Attempts to contact Parekh by S.I. Gaud were however unsuccessful.
On the morning of 11th November 1965 the appellant made a statement before Inspector Mokasi and S.I. Graud and this was recorded in the presence of panchas.
The portion of the statement with which we are concerned reads: "It will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway station at/II Class Waiting Hall to whom I have given a packet containing diamonds of different sizes more than 200 in number.
" The appellant thereafter led the police and the panchas to the Said waiting hall and there from among a crowd of people the 335 appellant pointed out accused No. 3 to the police.
D.S. Parekh was also there.
The appellant is alleged to have repeated there the same statement which he had made earlier at the police station.
Accused No. 3 produced a handkerchief containing a packet in which 211 diamonds were found.
Both accused No. 3 and D.S. Parekh were put under arrest.
The diamonds were identified by Mehta as a portion of those which he had lost on the night of 9th November.
An identification parade was held by a Justice of the Peace at 4.15 p.m. at which Mehta and his companion identified the appellant as also accused 2 and 3 as being persons who were standing in the passage outside the first class compartment of the local train when Mehta 's pocket was picked.
The High Court came to the conclusion that the complicity of the appellant with the crime alleged rested only on two pieces of evidence brought forward at the trial.
The first was his identification by Mehta and his companion at the identification parade to the effect that he was present in the train on the material date and at the material hour.
By itself this means nothing because there were a number of other persons who were standing in the passage at the same time and there is no suggestion and indeed there could be none that any of these persons were connected with the crime.
To fasten the guilt on the appellant the prosecution had to rely on the evidence furnished by the statement alleged to have been made by the appellant to the police and the panchas in consequence whereof he was said to have led the police party to the Bombay Central railway station waiting hail and to the discovery of the diamonds from accused No. 3.
As the statement of the accused recorded above was in the nature of a confession it would come under the embargo of section 26 of the Evidence Act unless it can be brought within the ambit of section 27 of the Evidence Act.
which reads: "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him.
It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first d.erived from information given by the accused.
If the police had no information before of the complicity of accused No. 3 with the crime and had no idea as to whether the diamonds would 336 be found ' with him and the appellant had made a statement to the police that he knew where the diamonds were and would lead t,hem to the person who had them, it can be said that the discovery of the diamonds with the third accused was a fact deposed to be the appellant and .admissible in evidence under section 27.
However, if it be shown that the police already knew that accused No. 3 had got the diamonds but did not know where the said accused was to be found, it cannot be said that the information given by the appellant that accused No. 3 had the diamonds and could be pointed out in a large crowed at the waiting hall led to the discovery of a fact proving his complicity with any crime within the meaning of section 27.
The ,fact deposed to him would at best lead to the discovery of the whereabouts of accused No. 3.
Under section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him.
An exception to this is however provided by section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement.
Section 27 is a proviso to section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the: crime, irrespective of the question whether it is confessional or otherwise.
The essential ingredient of the section is that the information given by the accused must lead to the discovery of the, fact which is the direct outcome of such/nformation.
Secondly, only such portion of the/nformation given as is distinctly connected with the said recovery is admissible against the accused.
Thirdly, the discovery of the fact must relate to the commission of some offence.
The embargo, on statements of the accused before the police will not apply if all the above conditions are fulfilled.
If an accused charged with a theft of articles or receiving stolen articles, within the meaning of section 411 I.P.C. states to the police, 'I will show you the articles at the place where I have kept them ' and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned.
The discovery of the fact deposed to in such a ease is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place.
In principle there is no difference between the above statement and that made by the appellant in this ease which in effect is that 'I will show you the person to whom I have given the diamonds exeeding 200 in number".
The only difference between the two statements is that a "named person" is substituted for the place ' where the article is kept.
In neither case are the articles or the diamonds the fact discovered.
337 The section was considered by the Judicial Committee of the Privy Council in Pulukuri Kotayya vs King Emperor(1).
A question there arose as to what ' part of a statement of the accused leading to the recovery of a knife in a murder case was admissible in evidence.
The statement read: "About 14 days ago.
, I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank.
We all beat Boddupati China Sivayya and Subbayya to.
death.
The re maining persons Pullayya, Kotayya and Narayana ran away.
Dondapati Ramayya who was in our party received blows on his hands.
He had a spear in his hands.
He gave it to me then.
I hid it and my stick in the rick of Venkatanarasu in the village.
I will show if you come.
We did all this at the instigation of Pulukuri Kotayya.
" The Board held that the whole of the statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanasrasu in the village.
I will show if you come" was inadmissible.
Holding that the extent of the information admissible must depend on the exact nature of the fact discovered to.
which such information was required to relate the Judicial Committee pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the fact.
" The Board was careful to observe that "information as to past user, or the past history of the object produced was not related to its discovery in the setting in which it was discovered.
" This Court had to consider the scope of section 27 of the Evidence Act in K. Chinnaswamy Reddy vs State of Andhra Pradesh(2).
There the appellant was convicted under section 411 I.P.C. by an Assistant Sessions Judge.
He was tried along with another person who was convicted under sections 457 and 380 I.P.C. A house had been burgled and valuable articles stolen.
During the course of investigation the police recovered 17 ornaments on the information given by the appellant.
The other accused had also given information on the basis of which another stolen ornament was recovered.
The Assistant Sessions Judge came to the conclusion that the other accused had actually committed house breaking and had removed the ornaments from the house burgled and had handed over 17 of them to the appellant.
He also came to the conclusion that the l 7 ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under section 411 I.P.C. On appeal the Sessions Judge held that the appellant had not been proved to be in possession of the 17 orna (1) 76 I.A. 65.
(2) ; 338 ments which were recovered at his instance from a garden.
According to the Sessions Judge the full statement of the appellant that "he would show the place where he had hidden them (the ornaments)" was not admissible against him.
The Sessions judge held that the part of the statement of the appellant which related to his having hidden the ornaments was inadmissible.
There was a criminal revision to the High Court and re trial was ordered and it was against that order that the appeal to this Court was directed.
Overruling the interpretation of the Sessions Judge, this Court held that the whole of the statement related distinctly to the discovery of the ornaments and was admissible under section 27 of the Evidence Act.
It was said: "These words (namely, where he had hidden them) having nothing to.
do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement.
" The contention that in a case where the offence consisted of possession even the words "where he had hidden them" would be inadmissible as it amounted to an admission by the accused that he was in possession of them was rejected on the ground that if the statement related distinctly to the fact thereby discovered it would be admissible in evidence irrespective of the question as to.
whether it amounted to a confession or not.
There can be no doubt that the portion of the alleged statement of the appellant extracted by us would be admissible in evidence.
The question still remains as to whether the said statement was really a discovery of a fact disposed to or weather there was no discovery within the meaning of section 27 of the Evidence Act because the police was already in possession of the fact that the accused No. 3 was a person who had the diamonds.
In order to find out the extent of the knowledge of the police as to the whereabouts of the diamonds it is necessary to look at the testimony of section 1.
Gaud and Pawri, the advertisement manager, of the Bombay Samachar.
Gaud stated at the trial that he had taken up the investigation at about 11 p.m. on the night of 9th November 1965 and after going to V.T. Railway station he had gone to Kamathipura 6th lane to trace the appellant on the basis of some information received at the railway station.
He learnt the next day about the identification of the photograph of the second accused by the complainant and arrested the appellant at 12.30 p.m. and the second accused at 1 p.m. on the same day.
The same afternoon he visited different newspaper establishments including that of Bombay Samachar Press and received information from the advertisement manager, Pawri in consequence whereof he went to find D.S. Parekh.
He did not succeed in tracing him and continuing the interrogation of the appellant and the second 339 accused he called panchas on the morning of 11th November to, have the statement of the appellant recorded.
Thereafter he went to the Bombay Central railway station and there found the diamonds with the accused No. 3 pointed out to him by the appellant.
In cross examination he said that he had contacted Pawri.
at 3 p.m. on loth November but he had not asked Pawri to produce the advertisement material nor was the same shown to him.
His testimony was that he had only asked for the name and address of the person who had given him the advertisement material and Pawri had done so from memory.
He denied having ' seen any letter or any advertisement material at Pawri 's office.
He also denied that he had told Pawri not to publish the advertisement.
It is to be noted that Police Inspector Mokashi examined before S.I. Gaud at the trial had stated in his examination inchief that at 2.30 p.m. on 10 11 1965 he had asked Gaud to visit different newspaper establishments including Bombay Samachar to find out whether the appellant had sent anyone there to surrender the diamonds as unclaimed.
Pawri 's evidence was that two persons had come to see him on November 10, 1965 for the purpose of putting in an advertisement relating to the finding of a packet of diamonds.
According to Pawri the two persons had given him a text of an advertisement to b.e published along with a covering letter signed by one and counter signed by the other and that the third accused was one of the persons who had met him at his office and that the covering letter as well as the advertisement material had been ' signed by both the persons who had met him.
The charges for advertisement amounting to Rs. 40 had been paid by one of them and a receipt taken.
One of the two persons had also produced a card of Dawood Suleman attached to the covering letter in response to a request for identification.
The letter dated 10 11 1965 shows that it was addressed to the manager, Bombay Samachar signed by Ramsingh Santram and Dawood Suleman Ghanchi and the text of it: "We have found diamond packets on (platform) No. 3 of Masjid Bunder station at eight o 'clock at night on the date 9 11 1965.
A public notice in respect thereof is sent herewith.
Please publish the same on the first page of the issue dated 11 11 1965, Thursday.
" The text of the statement meant for insertion in the newspaper ran: "A diamond packet has been found at Bombay Central Railway station on 9 11 65.
Please contact Bombay Samachar by proving identity and paying the charges for the public notice.
" 340 Below the above were the words: 'Care of ' Anand Savarorup Samma, Market, West Malad.
Ramsingh Santram Dawood Suleman Ghanchi Ghoghari Mohalla 136, Niaz Building Ground Floor, Bombay 3.
Pawri stated that Bombay Central railway station had been written by him after scoring out Masjid Bunder.
In cross examination he said that the two persons had brought the diamonds and wanted to leave the same at the newspaper office but this was declined.
They had come to the office at about 11 a.m. and seen a director before meeting the witness.
The advertisement was to.
be published on the morning of 11th but this was not done because the police had given instructions to the contrary.
The police had gone to their office in the afternoon when he had to1d them what had taken place in the morning.
In view of the evidence of Pawri and Mokashi it is not possible to accept the testimony of Gaud.
It is incredible that Guad who had gone to the newspaper office specially for the purpose of finding out whether anybody had approached the newspaper people to surrender the diamonds would not ask Pawri in detail about the persons who had met him or what they had told him or what they had done about the publication of the finding of the diamonds.
Pawri 's definite statement was that he had told the police all that had happened in the morning.
In our view, Pawri must have shown Gaud the advertisement material, the covering letter with the card and the names of the two persons and the address of one of them.
He could not possibly have failed to tell Gaud that the two persons who had come to him had even offered to hand over the diamonds.
There is no positive evidence as to whether Gaud had asked the Bombay Samachar people not to insert the advertisement on the morning of the 11th.
nothing turns on that.
It was 11.0 'clock in the morning when Parekh and accused No. 3 had gone to the newspaper office and it was about 3 in the afternoon that Gaud met Pawri for the purpose of making enquiries.
Gaud 's statement that Pawri had given him Parekh 's address from memory cannot be accepted.
Besides it is absurd to suggest that Gaud would not have asked Pawri to show him the documents made over by Parekh and accused No. 3 or that there would have been any reluctance on the part of Pawri to tell Gaud about it when he knew that the police were making investigations about a packet of diamonds picked from the pocket of someone who had lodged a complaint with the police.
341 In our view Gaud must have learnt that Parekh and or accused No. 3 had the custody of the diamonds.
Therefore the statement of the appellant that accused No. 3 had the custody of the diamonds would not be something unknown to the police so as to constitute "a fact deposed to as discovered in consequence of the information received" from the appellant.
The discovery, if any, merely related to the whereabouts of accused No. 3.
There was no discovery of any fact deposed to by the appellant within the meaning of section 27.
If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of accused No. 3.
the result although the statement.
might otherwise have been admissible in evidence, that there was no discovery of a fact connecting the appellant with the receipt of the diamonds which were stolen within the meaning of section 27 of the Evidence Act because the police already knew that the third and or the fourth accused had the diamonds.
The appeal must be allowed and the appellant directed to be set at liberty.
Y.P. Appeal allowed.
| The appellant was charged under section 379/34 I.P.C. for committing theft of a parcel containing diamonds along with the, two other persons.
ln the course of investigation the police went to a newspaper office where they learnt that one of the.
co accused had come to put in advertisement respecting the recovery of the diamonds, stating that it was in his possession, and left 'an address with the newspaper.
The police could not trace that co accused, but later, as a result of information furnished by the appellant to the police and the panchas the police were taken to a place where the diamonds were discovered from that other co accused.
On the question whether the statement of the appellant was admissible in evidence against him under section 27 of the , HELD: The statement was not admissible.
Under section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him.
An exception to this is however provided by section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in custody of the police when he made the incriminating statement.
Section 27 is a proviso to s, 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise.
The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact 'which is the direct outcome of such information.
Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused.
Thirdly, the discovery of the fact must relate to the commission of some offence.
The embargo.
on statements of the accused before the police will not apply if all the above conditions are fulfilled.
If an accused ' charged with a theft of articles or receiving stolen articles, within the meaning of section 411 I.P.C. states to the police. 'I will show you the articles at the place where 1 have kept them ' and the.
articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned.
The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place.
In principle there is no difference between the above statement and that made by the appellant in this case which in effect is that 'I will show you the.
person to whom 1 have given the diamonds exceeding 200 in number '.
The only difference between the two statements is that a 'named person ' is substituted for 'the place ' where the article is kept.
In neither case are the articles or the diamonds the fact discovered.
[338 C H] In the present case, the police had learnt earlier that the other accused had the custody of the diamonds.
Therefore, the statement of the appel 333 lant that the other accused had the custody of the diamonds would not be something unknown to the police so as to constitute 'a fact deposed to as discovered in consequence of information received ' from the appellant.
The discovery, if any, merely related to the whereabouts of the other accused.
There was no discovery of any fact deposed to by the appellant within the meaning of section 27.
If the police had not gone to the office of the newspaper and had not learnt of the complicity of the other accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of that other accused.
[343 B] Pulukuri Katayya vs King Emperor, 76 I.A, 65 and K. Chinnaswamy Reddy vs State of Andhra Pradesh, ; , referred to.
|
69 of 1953.
Petition under article 32 of the, Constitution for enforcement of fundamental rights.
1185 section C. Isaacs (Jai Prasad Agarwal, with him) for, the appellant.
K. B. Asthana for respondent No. 1.
section P. Sinha (R. Patnaik, with him) for respondent No. 4. 1953.
May 22.
The Judgment of the Court was delivered by PATANJALI SASTRI C. J.
This is an application under article 32 of the Constitution seeking protection of the petitioners ' fundamental right under article 15 (1) against alleged violation thereof by the respondents.
The petitioners are three residents of Etah in Uttar Pradesh.
They complain that at the by election to the Municipal Board of Etah held on November 2, 1951, December 8, 1951, and March 17, 1952, at which respondents 4, 11 and 12 were respectively elected, the Petitioners were deprived of their rights to exercise their votes and to seek their election as candidates, as those by elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution.
They also allege that the nomination of respondent 3 as a member of the Board by the Government was an illegal exercise of its powers, as the interest which that respondent was nominated to represent in the Board was already sufficiently represented.
The petition ners accordingly pray for the issue of writs of quo warranto, mandamus and other appropriate writs or directions to respondents 3, 4, 11 and 12 to show under what authority they are acting as members of the Board and to prevent them from acting assuchmembers.
Tbe petitioners also ask for wkits on the District Magistrate and the Civil Judge of Etah, respondents 2 and 13 respectively, directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted.
Now, it cannot be seriously disputed that any law providing for elections on the basis of separate electo rates for members of different religious communities offends against article 15 (1) of the Constitution which runs thus 1186 "15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
" This constitutional mandate to the State not to diis criminate against any citizen on the ground, inter alia, of religion clearly extends to political as.well as to other rights, and any election held after the Constitution in ,pursuance of such a law subject to clause (4) must be held void as being repugnant to the Constitution.
But the question is whether the petitioners are now entitled to the relief they seek in this application under article 32.
It is true, as pointed out in the Cross Roads case(1), that article 32 provides, in some respects, for a more effective remedy through this court than article 226 does through the High Courts.
But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution.
Any right, for instance, which the petitioners may have as rate payers in the Municipality to insist that the Board should be legally constituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article 32, as such right, even if it exists, is not a fundamental right conferred by Part 111.
Petitioners ' learned counsel, however, contended that the fundamental right conferred by article 15 (1) on the petitioners as citizens of India was violated by the elections in question having been held on a basis which discriminated against the petitioners on the ground of their religion in that it precluded them from exercising their franchise in relation to all the candidates and from contesting the elections without regard to the reservation of seats on communal basis.
Learned counsel,also submitted that the delimitation of the constituencies on communal lines was a denial of equality to the petitioners in the matter of their political rights and in that respect also infringed their (1) ; 1187 fundamental right under article 14.
We are unable to accede to these contentions.
It is plain that the fundamental right conferred by article 15(1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of the rights, privileges and immunities pertaining to him as a citizen generally.
It is not the petitioners ' case that any discrimination is now being practised or threatened against them.
Their grievance is that the mode of election by separate electorates formed on communal lines involved discrimination against them in relation to seats other than those reserved for their respective communities as to which they could not exercise their right to vote or their right to stand as candidates.
There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution.
In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having been carried.
Thus, the infringement of their fundamental rights under article 15(1) and art 61 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there was still room for doing so, and for the exercise of which the opportunity is now lost.
But, argues Mr. Isaacs, the election of the respondents 4 11 and 12 being void, they are no better than usurpers, and the petitioners are entitled to prevent them from functioning as members of the Municipal Board.
It may be, as we have already remarked, that the petitioners could claim such relief as ratepayers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners ' funda mental right under article 15(1) or article 14 in such claim, There is still less ground for seeking relief on 1188 that basis aoainst respondent 3 who is only a nominated member.
The petitioners appear to have misconceived their remedy and their application under article 32 must fail.
The petition is dismissed with costs, one sot.
Petition dismissed.
Agent for the petitioners: K. L. Mehta.
Agent for respondent No. I : C. P. Lal.
Agent for respondent No. 4: section P. Varma.
| The petitioners, who were residents of a municipality, alleging that they had been deprived of their rights to exercise their votes and to seek their election as candidates in certain by elections to the Municipal Board, as those by elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution, applied for writs tinder article 32 of the Constitution for preventing the elected candidates from acting as members of the Board, and the District Magistrate and Civil Judge from holding any meetings of the Board: Held, that, though a law which provides for elections on the basis of separate electorates for members of different religious communities offends against article 15(1) of the Constitution and an election held after the Constitution in pursuance of such a law subject to el. 4 would be void, the right which the petitioners claimed as rate payers in the municipality to insist that the Board should be legally constituted and that persons who have not been properly elected should not be allowed to take part in the proceedings of the Board was outside the purview of article 32 of the Constitution inasmuch as such a right, even if it existed, was not a fundamental right conferred by Part III of the Constitution.
Held further, that the alleged infringement of the fundamental rights of the petitioners under article 15(1) and article 14, that is, the discrimination practised against them related to rights which they in fact never sought to exercise and took no steps to assert while there was occasion for doing so and the petitioners were therefore entitled to no relief under article 32 of the Constitution.
|
Appeal No. 596 of 1963.
Appeal from the judgment dated March 1, 1960 of the Madras High Court in Case Referred No. 11 of 1955.
K. N. Rajagopal Sastri and R. N. Sachthey, for the appellant.
R. Ganapathy Iyer and R. Gopalakrishnan, for the respondent.
May 7, 1964 The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is preferred against the order of the Madras High Court in a reference made to it by the Income tax Appellate Tribunal under section 66(1) of the Income tax Act, 1922, hereinafter called the Act.
The facts leading up to the reference and relevant to the present enquiry are as follows.
The Free Press of India (Madras) Ltd., hereinafter called the Free Press Company, was a private limited company carrying on business as printers and publishers of certain newspapers, namely, "Indian Express", "Dhinamani" and "Andhra Prabha" at 191 Madras, "Eastern Express" and "Bharat" at Calcutta and "Sunday Standard" and "Morning Standard" at Bombay.
,On August 31, 1946, the Free Press Company passed a resolution transferring to the Express Newspapers Limited, a new company formed on or about April 22, 1946, hereinafter called the assessee company, the right to print and publish the said newspapers from September 1. 1946.
letting out its machinery and assets and authorizing the assessee company to collect the book debts and pay off the liabilities of the Free Press Company.
The assessee company accordingly started publishing newspapers from September 1, 1946.
On October 31, 1946, the Free Press Company resolved at a General Body Meeting to wind up the company voluntarily.
The liquidator appointed thereunder was directed not to carry on the business of the company.
On November 1, 1946, the liquidator ascertained the value of the assets over the liabilities taken over by the assessee company as per the balance sheet at Rs. 19,36.000/and this amount was credited to the account of the two directors of the Free Press Company in the assessee 's books.
The profit of the Free Press Company was worked out to be Rs. 6,08,666, being the difference between the written down value and the sale price of the machinery.
That sum was made up of, (i) the difference between the original cost price and the written down price of the machinery. ' Rs. 2,14,090/ , (ii) the amount in excess over the original cost price .
Rs. 3,94,576/ .
The Income tax Officer included the said two items in the total income of the assessee company under the following heads, (i) profit under proviso to section 10(2) (vii) .
Rs. 2,14,090/ , and (ii) capital gains under section 12B .
Rs. 3,94,576/ , and assessed each to tax.
The Income tax Appellate Tribunal upheld the validity of the inclusion of the item under capital gains in the total income of the assessee but decided against the inclusion of the first item.
The Appellate Tribunal referred the following two questions, among others, for the decision of the High Court of Madras under section 66(1) of the Incometax Act: "4.
Whether Free Press Company made a business profit of Rs. 2,14,090/ under proviso to section 10(2);(vii) of the Act?" 192 "6.
Whether the capital gain made by the Free Press Company is liable to be assessed in the hands of the Express Company, under section 26(2) of the Act?" The reference was heard by a Division Bench of the High Court, consisting of Rajagopalan and Ramachandra Iyer, JJ., who by their judgment answered the two questions in the negative and against the department.
The present appeal is preferred against the said judgment of the High Court.
The argument in the appeal proceeded on the basis of the following facts.
During the accounting year 1946 47 the Free Press Company did not do the business of printing and publishing newspapers from September 1, 1946, and thereafter the assessee company alone was carrying on the said business.
The Free Press Company went into voluntary liquidation on October 31, 1946, and the liquidator, on November 1, 1946, confirmed the transfer of the assets made by the Free Press Company to the assessee company.
Therefore, on November 1, 1946, the aforesaid machinery was sold yielding a profit of Rs. 6,08,666/ to the Free Press Company being the difference between the written down value and the sale price of the machinery.
Broadly stated, the machinery was sold by the Free Press Company during the accounting year after it closed down its business and after it went into voluntary liquidation.
On those facts learned counsel for the Revenue raised before us the following two contentions: (1) The first item of Rs. 2,14,090/ , representing the surplus over the written down value of the machinery was assessable in accordance with the proviso to section 10 (2) (vii) of the Act; and (2) the second item of Rs. 3,94,576/ , representing the capital gains made by the Free Press Company is assessable in the hands of the assessee company, who succeeded to the said business, under section 26(2) of the Act.
Learned counsel for the respondent contended that neither the conditions laid down in section 10(2)(vii) of the Act nor those laid down in section 26(2) thereof attracted the said two items of income and, therefore, they were not assessable in the hands of the assessee company.
193 The first question turns upon the relevant provisions of section 10 of the Act.
To have a clear view of the scope of the relevant provisions it will be convenient to read them at one place.
Section 10. (1) The tax shall be payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him.
(2) Such profits or gains shall be computed after making the following allowances, namely: (iv) in respect of insurance against risk of damage or destruction of buildings, machinery, plant, furniture, stocks or stores, used for the purposes of the business, profession or vocation.
the amount of any premium paid: (v) in respect of current repairs to such buildings, machinery, plant or furniture, the amount paid on account thereof; (vii) in respect of any such building, machinery or plant which has been sold or discarded or demolished or destroyed, the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value: Provided further that where the amount for which any such building, machinery or plant is sold, whether during the continuance of the business or after the cessation thereof, exceeds the written down value, so much of the excess as does not exceed the difference between the original cost and the written 51 S.C. 13 194 down value shall be deemed to be profits of the previous year in which the sale took place: We are concerned with the second proviso to section 10(2) (vii) of the Act.
The substantive clause grants a balancing allowance in respect of building, machinery or plant which has been sold or discarded or demolished or destroyed.
The allowance represents the excess of the written down value over the sale price.
Under the proviso, if the sale price exceeds the written down value, but does not exceed the original cost price, the difference between the original cost and the written down value shall be deemed to be profits of the year previous to that in which the sale takes place; that is to say, the difference between the price fetched at the sale and the written down value is deemed to be the escaped profits for which the assessee is made liable to tax.
As the sale price is higher than the written down value, the difference represents the excess depreciation mistakenly granted to the assessee.
To illustrate: assume that the original cost of a machinery or plant is Rs. 100/ and depreciation allowed is Rs. 25/ ; the written down value is Rs. 75.
If the machinery is sold for Rs. 100/ , it is obvious that depreciation of Rs. 25/ was wrongly allowed.
If it had not been allowed that amount would have swelled the profits to that extent.
When it is found that it was wrongly allowed that profit is brought to charge.
The second proviso, therefore, in substance, brings to charge an escaped profit or gain of the business carried on by the assessee.
The scope of this proviso cannot be ascertained in vacuum.
The conditions for its applicability can be ascertained only in its relation to the other related provi sions.
Under section 3 of the Act income tax shall be charged for any year in accordance with and subject to the provi sions of the Act in respect of the total income of the previous year of every assessee; under section 6, one of the heads of taxable income is "profits and gains of business, profession or vocationl,; under section 10(1), the tax under that head is payable in respect of profit or gains of any business carried on by the assessee during the accounting year.
The 195 main condition which attracts all the other sub sections and clauses of the section is that the tax shall be payable by an assessee in respect of the profit or gains of any business etc.
carried on by him.
The crucial words are ."business carried on by him".
If the profit or gains were not earned when the business was being carried on by the assessee during the accounting year, they would fall outside the provision of section 10(1).
For instance, if the machinery sold after the business was closed or when the business was under liquidation, it would not be appropriate to hold that the profit or gains earned by the sale were in respect of the business that was being carried on by the assessee.
The second condition that attracts the second proviso is implicit in the adjective "such" preceding "building, machinery or plant" sold.
The adjective "such" refers back to cls.
(iv), (v), (vi) and (vii) of section 10(2).
Under cl.
(iv) an allowance is allowed in regard to any premium paid in respect of insurance against risk of damage or destruction of buildings, machinery, plant etc.
used for the purpose of the business, profession or vocation.
Under this clause allowance is allowed only in respect of the machinery used for the purpose of the business.
Clauses (v), (vi) and (vii) refer to such buildings, machinery, plant etc.; that is to say, such buildings, _machinery, plant etc.
used for the purpose of the business.
The result is that the second proviso will only apply to the sale of such machinery which was used for the purpose of the business during the accounting year.
It brings in to charge the escaped profits under the guise of superfluous allowances if the machinery sold was used for the business during the accounting year when the business was being carried on.
Therefore, to bring the sale proceeds to charge the following condition.
,, shall be fulfilled: (1) During the entire previous year or a part of it the business shall have been carried on by the assessee; (2) the machinery shall have been used in the business; and (3) the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up.
If these were the conditions for the applicability of the said proviso, the sale of the machinery in the instant case having taken place after the business was closed and during the winding up 196 proceedings, it would fall outside the scope of the said proviso and therefore the first item is not assessable to tax This point directly arose for consideration in The Liquidators of Pursa Limited vs Commissioner of Incometax, Bihar(1).
There, the assessee company carried on the business of growing sugarcane and manufacturing and selling sugar.
In the year 1943 it negotiated for the sale of the factory and other assets with the object of winding up the company.
It received a firm offer on August 9, 1943, and concluded the agreement of sale on December 7, 1943.
Between August 9, 1943, and December 7, 1943, it never used the machinery and plant for the purpose of manufacturing sugar or for any other purpose except that of keeping them in trim and running order.
In the assessment of the company to income tax for the accounting period from October 1, 1943, to September 30, 1944, the income tax authorities treated the surplus made by the company on the sale of the buildings, plant and machinery as profits under proviso (2) to section 10(2)(vii) of the Act.
This Court held that the said amount was not taxable.
This Court rejected the contention of the Revenue that the said excess was taxable on two grounds, namely, (1) "the sale of the machinery and plant was not an operation in furtherance of the business carried on by the company but was a realisation of its assets in the process of gradual winding up of its business which eventually.
culminated in the voluntary liquidation of the company; (2) "even if the sale of the stock of sugar be regarded as carrying on of business by the company_and not a realisation of its assets with a view to winding up, the machinery or plant not being used in the accounting year at all and in any event not having had connection with the carrying on of that limited business during the accounting year, section 10(2)(vii) could have no application to the sale of any such machinery or plant".
Learned counsel for the Revenue contends that the main reason for the decision was that the machinery or the plant was not used in the accounting year for the business and that the second reason, namely, that the assets were sold in the process of gradual winding up of the com 197 pany was only an observation and that the decision was not based upon the said observation.
But a careful perusal of the judgment discloses beyond any reasonable doubt that the decision was based upon both the grounds.
As in the present case the machinery was sold not for the business but only for closing it up during the liquidation proceedings, this decision directly covers the present case.
This question again fell to be considered by this Court in The Commissioner of Income tax, Bombay Circle II vs The National Syndicate, Bombay(1).
There, the National Syndicate, a Bombay firm, acquired on January 11, 1945, a tailoring business as a going concern for Rs. 89,321/ which includedthe consideration paid for sewing machines and a motor lorry.
Soon after the purchase the respondent found it difficult to continue the business, and therefore it closed its business in August, 1945.
Between August 16, 1945, and February 14, 1946, sewing machines and the motor lorry were sold at a loss.
The respondent closed its account books on February 28, 1946, showing the two losses and writing them off.
For the assessment year 1946 47, the respondent claimed a deduction under section 10 (2) (vii) of the Indian Income tax Act.
The question fell to be considered on a construction of the provisions of section 10(2) (vii) of the Act.
This Court, speaking through Hidayatullah, J., held that the loss was a business loss, though the machines and the motor lorry were sold after the business was closed down, as the said machines and lorry were used for the purpose of the business during a part of the accounting year and were sold during the accounting year.
This Court, after noticing the decision under appeal and that of this Court in The Liquidators of Pursa Limited vs Commissioner of Income tax, Bihar (2), and the amendment introduced in the second proviso to section 10 (2) (vii) of the Act, observed: "But it is to be noticed that no such amendment was made in el.
(vii) to exclude loss over buildings, machinery or plant after the closure of the business.
It is thus clear that the principles which govern the proviso cannot be (1) ; (2) ; 199 used to govern the main clause, because profit or loss arise in different ways in business.
The two rulings do not, therefore, apply to the facts here.
" It is contended that the principle accepted by this decision is in conflict with that laid down in the case of The Liquidators of Pursa Limited(1).
It is said that the con dition that the sale of the machinery at a loss should have been before the closing of the business is impliedly laid down by section 10(1) of the Act which applies equally to cl.
(vii )as well as to the second proviso thereto, and that if the condition need not be fulfilled in the case falling under the substantive part of cl.
(vii) of section 10(2) of the Act, it will be incongruous to apply it to a case falling under the second proviso before it was amended.
So stated there is some plausibility in the argument.
But this Court in express terms made a distinction between the scope of the substantive part of cl.
(vii) and that of the second proviso thereto and expressly distinguished those rulings on the ground that they would not apply to the construction of the substantive part of cl.
(vii).
When this Court expressly confined the scope of the decision to the substantive part of cl.
(vii) without disturbing the validity of the decisions governing the second proviso, it is not proper that we should rely upon it in preference to a direct decision on the second proviso to cl.
(vii) of section 10(2) of the Act before it was amended.
This Court in K. M. section Reddy, Commissioner of Income tax, Kerala vs The West Coast Chemicals and Industries Ltd. (in liquidation), Alleppy(2) held that a winding up sale was not trading or doing business.
There.
chemicals and other raw materials were sold not in the course of ordinary trading but only in realisation sale after the company had been wound up.
This Court, speaking through Hidayatullah, J., posed the following question, "The question, therefore, is whether there can be said to be a sale in the carrying on of the business in respect of the chemicals and other raw materials." (1) ; (2) [1962] Supp.
3 S.C.R. 960, 965. 199 After referring to the passages in Halsbury 's Laws of Eng land, 3rd Edn., Vol. 20, pp. 115 117, wherein it was stated that "mere realisation of assets is not trading" and that there was distinction between sales forming part of the trading activities and those where the realisation was not an act of trading, the learned Judge observed that the said distinction was a sound one.
The learned Judge, on a consideration of other decisions, also accepted as correct the distinction made between a sale of the entire stock as part of trading and the sale of a part of the stock as a winding up sale.
Then the learned Judge applied the principles to the facts of the case and held that it was im possible to infer that the chemicals and raw materials were sold in the ordinary way of business or that the assessee company was carrying on a trading business.
This decision again accepts the distinction between a sale held in the ordinary way of business and that held for the purpose of winding up the business and that in the latter case the profits accrued are not trading profits.
This case no doubt did not turn upon the provisions of the second proviso to cl.
(vii) of section 10(2) of the Act, but the principle accepted therein is the basis for the application of section 10 of the Act and that will apply to all provisions of section 10, unless an exception is made in a particular provision.
For the fore going reasons we hold that the first item is not liable to tax and the High Court has given the correct answer to the first question submitted to it.
The second item relates to capital gains.
That represents the excess of the price obtained on the sale of the machinery over its original cost price.
It is conceded that it does not represent profits and gains of business, but it falls under the heading "capital gains".
But it is argued that, as the Free Press Company wag wound up and, therefore, could not be found.
, the assessee, who had succeeded to it, would be liable to be assessed for the said capital gains under the proviso to section 26(2) of the Act.
To appreciate the contention some of the relevant provisions of the Act may be read: Section 6.
Save as otherwise provided by this Act, the following heads of income, profits and 200 gains, shall be chargeable to income tax in the manner hereinafter appearing, namely: (v) Profits and gains of business, profession or vocation.
(vi) Capital gains.
Section 10. (1) The tax shall be payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him.
(2) Such profits or gains shall be computed after making the following allowances, namely: Section 12B. (1) The tax shall be payable by an assessee under the head "Capital gains" in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange, relinquishment or transfer took place: Section 24. (2A) Notwithstanding anything con tained in sub section (1), ",here the loss sustained is a loss falling under the head "Capital gains," such loss shall not be set off except against any profits and gains falling under that head.
(2B) Where an assessee sustains a loss such as is referred to in sub section (2A) and the loss cannot be wholly set off in accordance with the provisions of that sub section, the portion not so set off shall be carried forward to the 201 following year and set off against capital gains for that year, and if it cannot be so set off, the amount thereof not so set off shall be carried forward to the following year and so on, so however that no such loss shall be carried forward for more than eight years: Provided that where the loss sustained by an assessee, not being a company, in any previous year does not exceed five thousand rupees, it shall not be carried forward.
Section 26. (2) Where a person carrying on any business, profession or vocation has been succeeded in such capacity by another person, such person and such other person shall, sub ject to the provisions of sub section (4) of section 25, each be assessed in respect of his actual share, if any, of the income, profits and gains of the previous year: Provided that, when the person succeeded in the business, profession or vocation cannot be found, the assessment of the profits of the year, in which the succession took place up to the date of succession, and for the year preceding that year shall be made on the person succeeding him in like manner and to the same amount as it would have been made on the person succeeded or when the tax in respect of the assessment made for either of such years assessed on the person succeeded cannot be recovered from him, it shall be payable by and recoverable from the person succeeding, and such person shall be entitled to recover from the person succeeded the amount of any tax so paid.
A conspectus of the said sections discloses a clearcut scheme.
Though income tax is only one tax levied on the total income, section 6 enumerates six heads whereunder the income of an assessee falls to be charged.
This Court in United Commercial Bank Ltd. vs Commissioner of Income 202 tax, West Bengal(1) laid down that sections 7 to 12 are mutually exclusive and where an item of income falls specifically under one head it is to be charged under that head and no other.
The expression "Income, profits and gains" in section 6 is a composite concept which takes in all the six heads of income mentioned therein.
The 4th head is "profits and gains of business, profession or vocation" and the 6th head is "capital gains".
Section 10 taxes the profits and gains of a business, profession or vocation carried on by an assessee; it also enumerates the different kinds of allowances that can be made in computing the profits.
Under section 10(1), as we have already pointed out, the necessary condition for the application of the section is that the assessee should have carried on the business for some part of the accounting year.
Section 26(2) indicates the manner of assessment of the income, profits and gains of any business, profession or vocation.
This section does not provide for the assessment of income under any other head.
It only says that if there is a succession to a person carrying on business during an accounting year, the person succeeded and the person succeeding can each of them be assessed in respect of his actual share.
The proviso deals with a case where the person succeeded cannot be found; in that event, the assessment of the profits of the year in which the succession took place upto the date of the succession and for the year preceding that year shall be made on the person succeeding him.
If an assessment has already been made in respect of the said years on the person succeeded, it can be recovered from the person succeeding.
But both sub section
(2) and the proviso deal only with income, profits and gains of 'the business, that is to say, for the assessment made in respect of profit and gains under the 4th head of section 6.
Now turning to section 12B, it provides for capital gains.
Under that section the tax shall be payable by the assessee under the head capital gains in respect of any profits or gains arising from, the sale of a capital asset effected during the Prescribed period.
It says further that such profits or gain shall be deemed to be income of the previous year in which the sale etc.
took place.
This deeming clause does not lift the, capital gains from the 6th head in section 6 and place it (1) ; (4) 203 under the 4th head.
It only introduces a limited fiction, named that capital gains accrued will be deemed to be income of the previous year in which the sale was effected.
The fiction does not make them the profit or gains of the business.
It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field.
Sub sections (2A) and (2B) of section 24 provide for the setting off of the loss falling under the head "capital gains" against any capital gains falling under the same head.
Such loss cannot be set off against an income falling under any different head.
These three sections indicate beyond any doubt that the capital gains are separately computed in accordance with the said provisions and they are not treated as the profits from the business.
The profits and gains of business and capital gains are two distinct concepts in the Income tax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee.
They are placed under different heads; they are derived from different sources; and the income is computed under different methods.
The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business.
They are only deemed to be income of the previous year and not the profit or gains arising from, the business during that year.
If that be the scheme of the Act, the contention of the learned counsel for the Revenue can easily be answered.
He asks that if section 26(2) deals with only profits and gains of the business, why should the Legislature use the word "income" therein? As we have indicated, the expression "income, profits and gains" is a compendious term to connote the income from the various sources mentioned in section 6; therefore, the use of such an expression does not efface the distinction between the different heads, but only describes the income from the business.
The expression ;,profits" in the proviso makes it clear that the income, profits and gains in sub section
(2) of section 26 only refer to the profits under the 4th head in section 6.
On the other hand, if the interpretation 204 sought to be put upon the expression "income" in sub section
(2) of section 26 by the Revenue is accepted, then the absence of that word in the proviso destroys the argument.
But the more reasonable view is that both the sub section and the proviso deal only with the profits under the 4th head men tioned in section 6 and, so construed, it excludes capital gains.
The argument that sub section
(2) of section 26 read with the proviso thereto indicates that the total income of the person succeeded is the criterion for separate assessment under sub section
(2) and for assessment and realisation under the proviso is on the assumption that sub section
(2) and the proviso deal with all the heads mentioned in section 6 of the Act.
But if, as we have held, the scope of sub section
(2) of section 26 is only limited to the income from, the business, the share under sub section
(2) and the assessment and realisation under the proviso can only relate to the income from the business.
The argument is really begging the question itself.
In the result we agree with the High Court in regard to the answer it has given in respect of the second question.
In this view no other question arises for our consideration.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.
| The Free Press Company was a private limited company Carrying On business as printers and publishers of certain newspapers.
On August 31, 1946, the Free Press Company transferred the right to print and publish the newspapers to the assessee company and let out its machinery and assets to the latter with effect from September 1, 1946.
The assessee company accordingly started publishing newspapers from September 1, 1946.
The Free Press Company went into voluntary liquidation on October 31, 1946, and the Liquidator, on November 1, 1946, confirmed the transfer of the assets made by the Free Press Company to the assessee company.
On November 1, 1946 the aforesaid machinery was sold yielding a profit of Rs. 6,08,666.
That sum was made up of, of price machinery Rs. 2,14,090, (ii) the amount in excess over the original cost priceRs.
3,94,576.
In assessing the assessee to income tax for the accounting year 1946 47 the Income tax Officer included the said two items in the total income of the assessee company.
The first item was assessed as profit under proviso to section 10(2)(vii) of the Incometax Act and the second item was assessed as capital gains.
The matter went up to the High Court.
On a reference the High Court held that the assessee was not liable to tax in respect of the said two items.
Held: (i) The second proviso to section 10(2)(vii) of the Act would only apply to the sale of such machinery which was used for the purpose of business during the accounting year.
In order to bring the sale proceeds to charge under the second proviso the following conditions shall be fulfilled: (1) During the entire previous year or a part of it the business shall have been carried on by the assessee; (2) the machinery shall have been used in the business; and (3) the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up.
On the facts of this case it was held that the sale of the machinery in the instant case having taken place after the business was closed and during the winding up proceedings therefore it would fall outside the scope of the said proviso and thus the first item i.e. the sum of Rs. 2,14,090 could not be assessed to income tax.
190 The Liquidators of Pursa Limited vs Commissioner of Income tax, Bihar; , and K. M. section Reddy, Commissioner of Income tax, Kerala vs West Coast Chemicals and Industries Ltd. (in liquidation), Alleppy, [1962] Supp.
3 S.C.R. 960, relied on.
Commissioner of Income tax, Bombay Circle II vs The National Syndicate, Bombay, ; , explained.
(ii) Both the sub section
(2) of section 26 and the proviso deal only with profits under the 4th head mentioned in section 6 and, so construed, it excludes capital gains.
The profits and gains of business and capital gains are two distinct concepts in the Income tax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee.
Therefore under section 26(2) of the Act the assessee being the successor could not be liable to income tax in respect of Rs. 3,94,576 (the second item) which represented the capital gains because capital gains are excluded from the purview of section 26(2) of the Act.
United Commercial Bank Ltd. vs Commissioner of Income tax, West Bengal; , , referred to.
|
ition No. 1938 of 1981 (Under Article 32 of the Constitution of India) M. K. Ramamurthy and P. P. Singh for the Petitioners.
M. C. Bhandare, Raju Ramalchandran, R. R. Garg, V. J. Francis and N.M. Popli for the Respondents.
Normally a resolution of such a dispute these two well known groups of service employees would necessitate considereation of various decisions relating to the quota and rota rule and such other allied matters.
We have been relieved of this exercise because We feel that the dispute in this case can be resolved on facts, unaided by precedents on such matters.
The counsel on both sides advisedly, therefore, restrained themselves from citing the relevant authorities before us.
Now the facts: All the 39 petitioners are promotees to the post of Assistant in the Indian Council of Agricultural Research (for short 'the society ') the 1st respondent herein.
The second respondent is the Union of India and respondent Nos. 3 to 31 are direct recruits to the same post.
Respondent Nos. 32 to 88 are also promotees and have been impleaded as proforma respondents.
3 The petitioner originally belonged to the service of the Central Secretariat, Government of India, Ministry of Agriculture.
The Society was a part of that department till 1. 4.
1965 on which date the Government of India decided to re organise the 1067 Society into a fully autonomous organisation with its own secretariat.
The petitioners opted to join the service in the Society on such re organisation.
Respondent Nos. 3 to 31 were directly recruited after an open competitive test, held by the Society in 1967 and 1911.A seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the direct recruits.
The provocation for filing the writ petition was the publishing of a second seniority list, by the Society by its Memorandum No. 27 (5)/81 Estt.
II dated 7.4.1981.
This list brought changes in the earlier list and pushed down the promotees from the positions they occupied in that list.
The prayer in the writ petition is to quash this seniority list on the ground that it violates Article 1 and 16 of the Constitution of India and to stay its implementation.
The Petitioners ' case is that they came into the Society by virtue of the option exercised by them and that they are entitled to seniority on the basis of the length of their service from the date of option.
According to them, recruitment rules, laying down the terms of service in the Society, were not avilable then and as such seniority had to be fixed on length of service.
The case of the contesting respondents is that seniority has to be fixed not with reference to the date of the reorganisation of Society and the date of option exercised by the petitioners but from the date of their appointment on a regular basis.
They seriously disputed the case of the petitioners that they were entitled to seniority from the date they exercised their option.
According to them the petitioners have to establish that they were duly appointed in the service on a regular basis, when they exercised their option, to claim seniority on the strength of length of service from the date of their option.
We must confess that there was considerable confusion both on the side of the petitioners and on the side of the Society and the Government regarding the existence of rules, regulating the conditions of service in the Society.
Things proceeded in the Society on the basis that there were no recruitment rules in existence till 1974, while the factual position is that rules were in existence from 1964.
It was on this wrong aasumption the that seniority list was prepared on 2nd February, 1979.
In that list, seniority was reckoned with reference to length of service.
It was after realising that a mistake had been committed and that rules, in fact, existed that the impugned list was drawn up on 7th April, 1981.
1068 6.
The petitioners have given a comparative statement as Annexure 9, showing the manner in which the new list has worked to their detriment.
This Annexure show.
the relative potions of the promotees and the direct recruits in the 1976 list and in the 1981 list.
To cite two or three examples; direct recruits who were placed at serial Nos. 4, 20 & 83 in the 1976 list, have gone up as seria Nos. 2, 10 and 22, respectively, in the 1981 list.
While preparing the 1976 list, a deemed date of appointment in the grade was adopted to calculate the length of service.
The petitioners, case is that the direct recurits never questioned their placement in this list and therefore cannot oppose with any justification the petitioners ' request for quashing the impugned list.
Though this submission ' is wholly not unfounded, the petitioners cannot succeed merely on the inaction on the part of the direct recruits but have to satisfy the Court of a right in them to entitle them to seniority from the date they opted and came into the Society 's service.
It is this aspect of the case that needs examination by us in this writ petition.
In this case we do not have the usual picture of great injustice glaring in the face, of promotees being eased out of their places by direct recruits after a long lapse of time.
Here we are dealing with a small Society with a limited number of employees and the dispute relates to a short period from 1965 to 1973.
The petitioners cannot, in this case, put forward either the case of a wholesale reduction of their places, legitimately due to them or the collapse of the quota and rota system as was the case in some of the decided cases.
The short point here is as to when the petitioners were regular appointed in the grade of Assistants and as to whether the petitioners ' rightful places have been robbed by the Society and the direct recruits by the impugned seniority list.
The petitioners were originally Upper Division Clerks with the Agricultural Department of Government of India.
They came to Court with the definite plea that their seniority was fixed on the basis of the principles applicable to Government service in the absence of any rules framed by the society, regulating their service conditions.
It is stated in the petition that they made representations to the authorities for laying down of clear principles to determine the inter se seniority between them and the direct recruits and as a consequence, the Government of India issued a Memorandum dated 20th April, 1970, asking the Govern ment employees to give their option by 30th April.
1970 and 1069 reiterating at the same time that the inter se seniority of the ministerial staff under the reorganised Council would be fixed on the basis of the date of appointment made on a regular basis.
It is significant to note that the petitioners have not produced a single of their appointment orders for this Court to be satisfied as to then they were appointed as Assistants on a regular basis while a specimen appointment order of direct recruits has been produced.
Still the petitioners insist that the crucial date for determining the inter se seniority is 1 4 1965, the date on which the Society was reorganised.
We find it difficult to accept the contention that the length of service has to be reckoned from 1.4.1965 or from the respective dates when they entered the service of the Society on exercise of their option when the Memorandum, produced by them, has clearly stated that the inter se seniority will be fixed on the basis of the date of appointment in the grade on the regular basis.
We have looked into the Memorandum Annexure 4, dated 20th April, 1970.
It clearly states that the date for exercise of option has been extended to 30th April ' 1970 and that the principles determining the inter se seniority of the ministerial staff in the reorganised Council was considered by the Society in consultation with the Ministries of Law and Home Affairs and Finance and that it was decided that the seniority of the ministerial staff in the reorganised Council would be fixed on the basis of " date of appointment to the grade on a regular basis .
" This statement in the Memorandum which finds a place in paragraph 8 of the Writ Petition also shows, according to us, the hollowness of the contention of the petitioners that seniority has to be fixed with reference to the date on which option was exercised by them.
Direct recruitment to the post of Assistants in the Society was made by holding competitive examination in 1967 and 1971.
Upper Division Clerks, like the petitioners who were working with the Agricultural Dept., Govt.
Of India, could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination.
We are told that some of the petitioners in fact, appeared for the competitive test without success.
Though this statement made by the counsel for the respondents at the bar was not disputed by the petitioners ' counsel, we do not propose to rely on it since it is not a matter on record.
Those who were successful at the competitive examination and the interview were offered the posts of Assistant by regular appointment as per appointment order produced as 1070 Annexure 5, issued by the Society, containing the terms of appointment.
As already indicated, the petitioners have either by design or by oversight failed to make available to us their orders of appointment on a regular basis in the grade when they exercised option.
It is against this background that the challenge to the 1981 list has to be considered.
If the petitioners can satisfy us that they had greater length of service in equivalent grade than the direct recruits, they are entitled to succeed.
If they fail, the list has to stand despite the fact that the earlier list was not challenged by the direct recruits.
We do not have on record anything to show when the petitioners were regularly appointed in the grade of Assistants.
In the absence of this evidence, can the petitioners succeed ? As already stated the Society and the Union Government were originally under a misapprehension that no rules existed governing the service conditions in the Society.
The petitioners have produced a Memorandum Annexure 3 dated 21st August, 1967 which throws considerable light on the dispute involved in the case.
lt is stated therein that the Government of India have approved of the reorganisation of the Indian Council of Agricultural Research into an office wholly controlled and financed by the Indian Council of Agricultural Research, with effect from a date to be appointed shortly.
As a consequence of the above decision the various posts existing as Government posts in the said Secretariat, will be abolished with effect from the aforesaid date and corresponding number of posts in various cadres will be created as nongovernment posts under the Society.
Paragraph 2 of this Memorandum reads: "The Indian Council of Agricultural Research has, however, agreed to take over such officers as belong to the C.S.S. (holding posts of Section Officer 's grade and Grade IV only), C.S.S.S. and C.S.C.S., employed on date in the Department of Agriculture and its attached offices (including the Indian Council of Agricultural Research) as are willing to serve the Council.
The Indian Council of Agricultural Research will, of course, select from amongst the persons opting for its service only the number of persons required by them, keeping in view the total number of existing posts in the various cadres borne on the Govern _ 1071 ment side of the Indian Council of Agricultural Research.
" Clause VI of Para 2 reads as follows: "The inter se seniority of the staff in Indian Council of Agricultural Research shall be determined in accordance with the rules to be framed for the purpose taking into account, among others, the principles governing the seniority under the Central Government.
" From the passages extracted above, it becomes clear that appointments are to be regularly made to various grades only with effect from a date to be appointed after 21st August, 1967, the date of the Memorandum, which means that the deemed date of appointment mentioned in the 1976 list cannot be relied upon by the petitioners to project a case of their length of service from that date.
The petitioners placed strong reliance on the Memorandum,` Annexure 4 dated 20th April, 1970, and in particular to the following: It has also been decided that 1st April, 1965 shall constitute the crucial date for determining the inter se seniority of the staff finally merging into the reorganised Council.
Accordingly, a combined inter se seniority list will be prepared for each grade of the persons on the basis of the above principle in accordance with the position obtaining in respect of each individual as on 1st April, 1965 and all regular vacancies arising in the Council with effect from 1st April, 1965 upto date, meant to be filled by promotion (including those which have been filled up on ad hoc basis) will be filled up on a regular basis from the 1? inter se seniority list drawn up in the manner indicated above.
Relying on this, the petitioners attempt to contend that their seniority should start from the date they exercised option and that this is correctly reflected in 1976 list.
This submission overlooks the fact that even at that time, there were rules in existence prescribing a ratio of 1: 1 between promotees and direct recruits.
In addition to this, it has to be noted that here also, filling up of vacancies on a regular basis is emphasised.
1072 13.
The Petitioners cannot therefore seek support from this to press a case of seniority from the date of exercise their options or from the deemed date of appointment.
Rights can accrue to them as members of the new service only from the date they are regularly appointed in the grade.
The impugned list instead of continuing the mistake committed in the 1976 list, has only corrected the mistake.
We find from the records that the Union Government and the Society were originally in error in their assumption that no rules existed for regulating the service conditions in the Society.
We have at page 91 as Annexure 6, rules relating to the Indian Council of Agricultural Research before its reorganisation.
The said rules show that the posts of Assistants can be fill d up 50% by direct recruitment and 50% by promotions.
In other words, for every promotee there should be a direct recruit also.
As is seen in the Handbook for personnel officer, the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
New recruitment rules for verious posts in the Society including Assistants with which we are concerned, came into force with effect from 1.9.1974.
Under these rules, in the number of posts available for Assistants 50% was to be by way of promotion from amongst the U.D.Cs.
having rendered at least 5 years approved service in the grade on the basis of seniority cum fitness subject to rejection of the unfit on the recommendations of the D.P.C. and 50% by direct recruitment on the basis of the results of competitive examination held by the ICAR.
This method of recruitment was to be with effect from 1.1.1976.
The method of recruitment before this date is also indicated in these rules.
It is provided in these rules that vacancies, arising between 29.8.1973 and 31.12.1975, will be filled wholly (100%) by promotion.
This means that vacancies prior to 2.9.1973 will be filled up in accordance with the 1964 rules and vacancies between 29.8.1973 and 31.12.1975, will be filled by the promotees alone and thereafter in the ratio I :1.
From these rules it is evident 1073 that the Society was conscious of the claims of the promotees and hence safeguarded their interests by providing 100% posts for them between 29.8.1973 and 31.12.1975.
By doing so, justice was done to them in a great measure.
The petitioners have no grievance that in preparing the 1981 list, which is impugned in this writ petition, a departure has been made to their detriment, without adhering to the quota provided in the rules.
Their only grievance is that the earlier list was changed without taking into account the deemed dates of appointment.
We have already indicated that in the absence of satisfactory proof of the date of appointment of the petitioners in the Grade as assistants in the Society, the petitioners cannot successfully urge before us a violation of Article 14 and 16 of the Constitution of India.
A look at the list prepared in accordance with the above rules, fortifies our conclusion that no great injustice was done to the promotees in the preparation of the list.
As one goes through the list, one finds that the gap between the promotees and the direct recruits is of a very short duration and not wide as in other cases.
It is true that direct recruitment was made first only in 1967.
However, to world out the quota system an earlier date of appointment had to be given to the direct recruits.
This could not be avoided.
This according to us, has not done any great injustice to pursuade us to give relief to the petitioners.
The dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 aod not to a fairly long period of time.
E In our Judgment, therefore, the petitioners are not entitled to succeed.
The writ petition fails and is dismissed.
The parties are directed to bear their costs, N.V.K. Petition dismissed.
| Raja Ram Jaiswal along with the members of his family purchased land bearing plot No. 26 with a building thereon admeasuring 2978 sq.
situated at K.P. Kakkar Road in March 1971.
The plan for a sound proof air condition ed cinema theatre on the said plot submitted by him was sanctioned both by the District Magistrate and the local municipality in December, 1970 and thereafter he applied for a certificate of approval under Rule 3 read with Rule 7 (2) of the U.P. Cinematograph Rules.
1951 for construction of a Cinema theatre.
The Hindi Sahitya Sammelan which was initially formed as a voluntary organisation in 1910 and registered as a society under the Societies Registration Act on January 8, 1914 retaining the same name had earlier acquired and taken possession from the Allahabad Municipal Board land admeasuring 7315 sq.
and in which a municipal school was located for purpose of building "Sangrahalaya" or a museum cum library cum reading room.
However no museum has come up and the land lies vacant.
This Sammelan raised objections to the grant of a permit for the constructions of the cinema theatre as in its view a theatre and a research cum study center can go ill together.
Overruling the objections, the District Magistrate, the Licensing Authority under the U.P. Cinema (Regulation) Act, 1955 granted the requisite certificate of approval, on March 24, 1972, under Rule 3 which would in law imply that having regard to the provisions of the 1955 Act, and 1951 Rules, there was no legal impediment to the construction of a cinema theatre on plot No. 26.
Having failed to thwart the grant of certificate of approval, the Sammelan wrote a letter on October 13, 996 1971 for acquiring land bearing plot No. 26 admeasuring approximately 2865 sq.
On the ground that it was needed for a public purpose namely for extension of Hindi Sangrahalaya of Hindi Sahitya Sammelan Prayag.
This Notification was published in the U.P. Government Gazette on February 9, 1974.A notice under section 4 (1) bearing the same date was served upon the petitioner as also the same was published in the locality.
The petitioner challenged the validity of the notification on diverse grounds in Writ Petition No. 1932/74 and obtained interim stay of taking over possession.
In the meantime, by Notification dated February 6, 1975, the earlier Notification dated January 31, 1974 was cancelled and a fresh Notification was issued to acquire "land bearing No. 62 admeasuring 8265 sq yds." and published in the U.P. Gazette on February lc. 1975.
Consequently Writ Petition No. 1932174 was got dismissed as infructuous.
A notice dated March 6. 1975 under section 5 of the Land Acquisition Act was served upon the petitioner inviting him to file his objections, if any.
The petitioner filed detailed objections on March 8, 1975 inter alia contending that the acquisition is for a company and the pre requisite for acquisition for a company having not been carried out, the acquisition is had in law.
It was also contended that the petitioner is not the Owner of plot No. '2 admeasuring 8265 sq.
yds Promptly on March 13, 1975, a corringendum was issued and published in the Gazette on March 22, 1975 correcting the notification dated February 6, 1975 to read that instead of plot No. 62 Plot No. 26 be read and instead of area 8265 sq.
yds., 2865 sq.
be read.
The substance of Gazette the notifications dated 15.2.1975 March 22, 1975 were not published in the locality as required under section 4 (1).
Tn between the issue of the notification and the corrigendum, the petitioner filed Writ Petition 3174175 questioning the validity Or the notification dated February 6, 1975 and duly amending the grounds after issue of the corrigendum.
The High Court negatived the challenges namely, (a) that the Notification was bad for non compliance first with the provisions or the Land Acquisition ((Companies)) Rules, 1953; and (b) that the acquisition proceedings are malafide but quashed the impugned notification on the ground of failure to cause public notice of the substance of Notification under section 4 (1) to be published is the locality.
Hence the State appeal (CA No. 2458/80) by special leave and the Special Leave Petition No. 9019/80 by Raja Ram.
Dismissing the State appeal and allowing in part the Special Leave Petition.
the Court.
^ HELD: 1.
When the validity of a Notification is questioned on the ground of malafides, proper parties affected by such an allegation must be impleaded in the petition.
In this case, Sammelan 's application for intervention under Order XX Rule 3 of the Supreme Court Rules 1966 must be granted though the Sammelan has not moved this Court against the High Court 's order rejecting the application for impleading.
[1004D E] 2.1 It is true that ordinarily courts do not interfere at the stage of Sec.
4 notification because it merely constitutes a proposal which will be meticulously examined after the objections arc filed under Section SA by tho person interested 997 in the land wherein all aspects of the matter can be threadbare gone into and examined.
However, as a notification under section 4 (I) initiates the proceedings for acquisition of land and uses the expression 'shall ' the mandate of the legislature bcomes clear and therefore, the infirmities therein cannot be wholly overlooked on the specious plea that the courts do not interdict at the stage of a more proposal.
11006 G] 2.2 A bare perusal of section 4 (1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating 'therein the land which is needed or is likely to be needed for a public purpose has to be published in the official Gazette.
The second part of the sub section provides that 'the Collector has to cause public notice of the substance of 'such notification to be given at convenient places in the locality in which the land proposed to be acquired is situated.
Both the conditions are mandatory.
Unless both these conditions are satisfied, section 4 of the Land Acquisition Act cannot be said to have been complied with.
Nor can Court whittle down a mandate of legislation recognised by a long line of decisions solely depending upon the facts of a given case; as is herer Further after the 1974 (U.P. Amendment and Validation Act VIII of 1974), Section 4 (1) on its true interpretation may unmistakably indicate that where the enquiry under Section 5 A is not dispensed with by resorting to Sec.
17 (4), compliance with the second part of Section 4 would be mandatory.
[1006H, 1007A D, 1009D E] Khub Chand and Ors.
vs State of Rajasthan and Ors.
, [1967] I SCR 120 at 125; Babu Barkya Thakur vs The State of Bombay, [1961] I SCR 128: Smt.
Somavanti and Ors.
vs The Sf are of Punjab & Ors., ; State of Mysore vs Abdul Razak Sahib, [1973] I SCR 856 referred to.
Gangadharaih vs State of Mysore &: Ors., (1961) Mys.
L.J. 883 approved.
2.3 It is not correct assume that the sole purpose behind publication of substance of Notification in locality, as required secondly in section 4 (1) of the Land Acquisition Act is to make requirement of section 5 A 'functionally effective.
[1009G] Where a decision of the Government to be effective and valid has to be notified in the Government Gazette, the decision itself does not become effective unless a notification in the Official Gazette follows.
Therefore, assuming that a notification is a formal expression of a decision of the Government to acquire land, unless the decision is notified in the Government Gazette by an appropriate notification, the proceedings for acquisition cannot be said to have been initiated and the decision would remain a paper decision, Section 4 (1) further requires that 'the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality ' The expression 'such notification ' in the latter part of Section 4(1) and sequence of events therein enumerated would clearly spell out that first the Government should reach a decision to acquire land, then publish a notification under section 4 (1) and simultaneously or within a reasonable time from the date of the publication of the notification cause a notice to be published containing substance of such notification meaning thereby that notification which is pub 998 lished.
Obviously, therefore, there cannot he a publication in the locality prior to the issuance of the notification.
[1010B G] Babu Barkya Thakur vs The State of Bombay, [1961] I SCR 128; Narendra Bahadur Singh and Anr.
vs State of U.P. & Ors, ; ; State of Madhya Pradesh & Ors.
vs Vishnu Prasad Sharma & Ors, ; held in applicable.
Mahendra Lal Jaini vs The State of Uttar Pradesh & Ors, [1963] Supp.
I SCR 912 relied on.
3.1 Where power is conferred to achieve a purpose the power must be exercise reasonably and in good faith to effectuate the purpose.
And in this context 'in good faith ' means for legitimate reasons.
Where it is exercised for extraneous or irrelevant consideration or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated.
If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other.
If it is exercised for an extraneous, irrelevant or non germane consideration, the acquiring authority can be charged with legal malafides.
In such a situation there is no question of any personal ill will or motive [1018C E] Municipal Council of Sydney vs Compbell, [1925] A.C. 338 at 375 quoted with approval.
State of Punjab vs Gurdial Singh & Ors, [1980] I SCR 1071 explained and followed.
3.2 Where power is conferred to achieve a certain purpose, the power can be exercised only for achieving that purpose.
Section 4(1) confers power on the Government and .
the Collector to acquire land Deeded for a public purpose.
The power to acquire land is (o be exercised for carrying out a public purpose.
If the authorities of the Sammelan cannot tolerate the existence of a cinema theatre in its vicinity it cannot he said that such a purpose would be a public purpose.
The authority of the Sammelan may honestly believe that the existence of a cinema theatre may have the pernicious tendency to vitiate the educational and cultural environment of the institution and therefore.
it would like to wish away a cinema theatre in its vicinity.
That hardly constitutes public purpose.
The proclaimed need of land for putting up Sangrahalya is an easy escape route whenever Sammelan wants to take over some piece of land.
Need of the land for Sangrahalya is a figment of imagination consured up to provide an ostensible purpose for acquisition.
There is enough land roughly admeasuring 7315 sq.
Lying vacant and unutilised with the Sammelan for over a quarter of a century.
The Sangrahalya has not come up though this was the land which was taken from the Municipal Board for the avowed object of putting up a Sangrahalya.
The Sammelan moved on to Rangamanch and Natyashala and then ultimately adopted a position that when the land is made available, scheme will be devised for its proper use.
The Sammelan was ever interested in acquiring the land for effectuating any of its objects.
It was neither the plans nor the wherewithal nor any specific object 999 for which it needs land and it is unable to use over years the land already available at its disposal.
Therefore, the Sammelan was actuated by extraneous and irrelevant considerations in seeking acquisition of the land and the statutory authority having, 'known this fact yet proceeded to exercise statutory pwoer and initiated the process of acquisition.
[1017F H, 1018A B] 3.3 The power to acquire land was a exercised for an extraneous and irrelevant purpose and it was colourable exercise of power, namely, to satisfy the chagrin and anguish of the Sammelan at the coming up of a cinema theatre in the vicinity of its campus, which vowed to destroy.
There fore, the consideration dated 6 2.1975 is illegal and invalid.
[1019E F]
|
: Criminal Appeal No. 80 of 1988.
From the Judgment and Order dated 20.11.1986 of the Gujarat High Court in Spl.
A. No. 886 of 1986.
T.U. Mehta and M.N. Shroff for the Appellant.
V.A. Bobde, Mrs. H. Wahi and Mrs. Kamini Jaiswal for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The order of detention of the respondent No. 2, 906 Mahendra V. Shah, passed under the , was challenged by his nephew, respondent No. 1, before the Gujarat High Court under Article 226 of the Constitution.
By the impugned judgment the detention order was quashed.
The State of Gujarat has impugned the High Court 's decision by the present Special Appeal Application.
Special leave is granted.
The detention order was passed on the 20th of October, 1984, but could not be served on the detenu earlier than 4.7.1986 as he was absconding.
The grounds of detention served on him as mentioned in Annexure B state that information was received by the Customs staff of Ahmedabad on 26.9.1984 that a notorious smuggler, Juwansinh Jadeja, had shifted his smuggling activites to the coast of Chorwad in Saurashtra, and was working on behalf of two citizens of Pakistan.
Information about Jadeja 's main associates was also received.
The authorities were informed that the gang was likely to land about 180 packages of contraband goods within a couple of days and vigilance activities were therefore stepped up.
The officers further learnt that the modus operandi of the smugglers ' gang would be to remove the goods to trucks and to cover them with cargo of vegetables and grains and then to drive away.
An Ambassador car bearing registered No. MRH 6595 which was earlier in the service of the respondent detenu a resident of Bombay was spotted in the late night of 28.9.1984 and they suspected it to be on the road in that connection.
They proceeded in the same direction and found a truck loaded with bags of vegetables.
The truck was intercepted but the driver ran away.
The Ambassador car was also passing by, but on being signalled to stop, it took a sharp turn and got away.
The officers unsuccessfully chased it for some time.
The suspicion of the officers was thus confirmed and they searched the truck and discovered the contraband goods.
Two other vehicles, a Jeep and another car also arrived and were stopped by the officers and several persons travelling therein including Jadeja were taken to the Excise Office for interrogation.
Incriminating documents were recovered, inter alia, indicating that several other trucks were also involved.
All available Customs and police officers thereafter became active and two other trucks were seized.
They also found the Ambassador car MRH 6595 abandoned.
The goods found in the first truck were all of foreign origin and were valued at over Rs.68 lakhs.
Similar contraband goods were discovered in the other trucks also.
Later a fourth truck was also intercepted.
The arrested persons 907 gave vital clues about the clandestine business of smuggling and named respondent Mahendra V. Shah as being directly involved in the business.
It was inter alia stated that Mahendra V. Shah had gone to the coast where the goods were received.
The grounds have mentioned the various activities of the detenu including the fact that he was travelling in the Ambassador car MRH 6595.
We do not consider it necessary to mention here all the details of his activities.
As stated earlier, although the order of detention was made in October 1984, it could not be served on the detenu before July 1986 as he was absconding.
On his arrest the writ application was filed by his nephew the respondent No. 1.
The other persons involved in the affair were also detained.
These co conspirators made an application for bail on 2.10.1984 and on the next day, that is, on 3.10.1984, they filed an application before the Chief Judicial Magistrate, Junagadh retracting some of their earlier statements.
One of the points urged on behalf of the detenu was that the retraction by the aforesaid other persons (co conspirators) was not placed before the detaining authority and was, therefore, not considered by him.
The High Court held that this point by itself vitiated the detention order.
The other grounds urged were not considered on merits.
It has been contended on behalf of the State that the second application dated 3.10.1984 whereby the other accused persons retracted their earlier statements was also placed before the detaining authority and he had applied his mind thereto.
It was pointed out that the said document was mentioned in the grounds Annexure B, served on the detenu although it was not accurately described as a petition containing the retraction.
The mis description was in the following words: "While arriving at the above satisfaction the Detaining Authority has taken into consideration the bail applications dated 2.10.1984 and 3.10.1984 filed jointly by Jayantilal Damji Thakker and nine others before the Chief Judicial Magistrate, Junagadh. " In paragraph 6 of the State 's counter affidavit this fact was pointedly mentioned and it was stated that the mistake in the description was of drafting, and the detaining authority had considered the same while passing the order of their detention and that there was no substance in 908 the point taken on behalf of the detenu.
The stand of the State that the petition dated 3.10.1984 was considered by the detaining authority appears to be right.
The original file dealing with the detenu 's case was produced in Court for our perusal, and we found that the Home Minister, State of Gujarat, while passing the order for detention made a detailed note running in several paragraphs and in paragraph 2 he pointedly mentioned both the bail application dated 2.10.1984 and the petition dated 3.10.1984.
The notes also show that he (detaining authority) correctly appreciated the nature and purport of the 3rd October document but was of the view that not much credence could be in the circumstances given to it.
The first point urged on behalf of the respondent must, therefore, be rejected.
The error in the description of the document in the grounds cannot in the situation be said to have vitiated the order.
Mr. Bobde, the learned counsel for the respondent, contended that the plea of the State should be rejected in absence of an affidavit by the detaining authority.
Although it is not an essential requirement of law, the learned counsel proceeded, but the Court in every detention case must insist on such an affidavit to be filed.
It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf, but it cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances.
In the present case a further affidavit by Sri Pavitra Narayan Roy Chaudhary, Deputy Secretary, Home Department (Special) of the State of Gujarat was filed stating that the Home Minister Sri Prabodh Raval who was authorised under the Rules of Business framed under Article 166 of the Constitution to pass orders on behalf of the Government in detention matters had ceased to be a Minister before the filing of the affidavit in the High Court, and he was, therefore, not available.
Sri M.T. Parmar, the then Deputy Secretary, Home Department was fully conversant with the case and had filed his affidavit.
The original file was produced before us to dispel any suspicion about the detaining authority having considered the document dated 3.10.1984 and having felt satisfied that it was a proper case for detention of the respondent.
In this background we do not attach much importance to the fact that the affidavit was not filed by the detaining authority personally.
The next point urged by Mr. Bobde was that it was necessary to have mentioned in the grounds (Annexure B) served on the detenu the fact that the detaining authority was of the view that "not much 909 credence could be given to the" statements in the petition dated 3.10.1984.
The state of the mind of the detaining authority while holding that much credence could not be given to the document should be treated to be a ground essential to be served on the detenu.
Reliance was placed on the observations in P.C. Mehta vs Commissioner and Secretary, Government of Kerala and others, [1985] (Supp.) SCC 144.
The contention is that factual inference is included in the expression "grounds" and has to be expressly and specifically stated.
We are afraid, the assumption on which the argument is founded is not correct.
So far as the inference drawn by the detaining authority from the materials on the records and his subjective satisfaction in this regard are concerned, they are expressly stated in the grounds and there cannot be any grievance on that score.
The objection of the respondent, properly analysed, comes to this, that the reason why the detaining authority is not impressed by a particular piece of evidence or on the other hand the reason why he prefers to rely on any other evidence should be detailed in the grounds.
Mr. Bobde urged that if the respondent had known that the detaining authority did not attach much credence to the statements in the petition dated 3.10.1984 he would have attempted to impress upon the relevant authorities to take a contrary view.
We do not find any merit in this contention and hold that it is not necessary to mention in the grounds the reaction of the detaining authority in relation to every piece of evidence separately.
Besides, the recital in Annexure B that the detaining authority formed his opinion after consideration of the aforesaid document by itself clearly implied that he was not impressed by the statement therein.
The detenu cannot, therefore, be heard to say that he was prejudiced in any manner.
As mentioned above, the points pressed on behalf of the respondents before us have been rejected.
Mr. Bobde has contended that several other questions also arise in this case which have not been dealt with by the High Court.
He appears to be right.
The impugned judgment states that several other questions were also raised which were not necessary to be considered as the writ application was succeeding on the first point.
Now in view of our finding mentioned above, it becomes necessary to decide the other questions also.
In the circumstances, we think that the case should go back to the High Court for further hearing.
Accordingly, the impugned judgment is set aside, and the matter is remanded for further hearing and disposal of the case in accordance with law.
N.V.K. Appeal allowed.
| % The respondent was apprehended while taking bribe.
Investigation was held and the respondent was chargesheeted before the Special Judge.
The respondent raised an objection to the framing of charges against him on the ground that the investigation of the case was in contravention of rule 16.38 of the Punjab Police Rules.
The Special Judge overruled the objection and framed charges and posted the case for trial.
The respondent filed a petition before the High Court under section 561(A) of the Code of Criminal Procedure, 1898, for quashing the proceedings against him before the Special Judge.
A full bench of the High Court held that rule 16.38 is mandatory and not directory in character and that the mandate would govern criminal prosecution as well as departmental inquiries in equal measure.
The full bench having noticed that the investigation against the respondent had not been done in accordance with rule 16.38 allowed the petition and quashed the charges framed against the respondent.
Hence this appeal filed by certificate issued by the High Court.
Allowing the appeal and setting aside the High Court 's judgment this Court, ^ HELD: The procedure prescribed in rule 16.38 has only a limited field of operation that is applicable only to departmental inquiries and punishments.
This could be seen from the fact that clause 3 of the rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police.
The clause further says that if the District Magistrate himself takes cognizance of a case he should of his own accord send a report to 937 the Superintendent of Police.
Clause IV of rule 16.38 also throws light on the matter and brings out the objective in greater clarity.
This clause sets out that in order to protect the interest of police officers serving in districts where petition mongering activities are notorious, the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc.
In fact, the words used in the clause are of a tell tale nature viz. "complaints against police officers in those districts where abuses of law with the object of victimising such officers or hampering investigation is rife.
" [945F H; 946A B] The purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected Magistrate.
The procedure envisaged by the rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other.
These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code.
[946C E] In the instant case the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the Police Act prescribe a different procedure for the investigation and prosecution of offences committed by Police Officer under the I.P.C. or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr.
The Full Bench has failed to note that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.[948B C] Raj Kumar, A. section I. vs The State of Punjab, [1976] IV CLR (Pb. & Har.) page 39, overruled.
State of Punjab vs Charan Singh, ; , referred to/agreed to.
Delhi Administration vs Chanan Shah, [1969] 3 S.C.R. 653; 938 Union of India vs Ram Kishan, ; ; State of Uttar Pradesh vs Babu Ram Upadhya, ; ; Maulud Ahmad vs State of U.P., [1963] (Supp.) 2 S.C.R. 38; Ajaib Singh vs Joginder Singh, ; and S.N. Sharma vs Bipan Kumar Tiwari & Ors.
,[1970] 1 S.C.C. 653, referred to.
|
Criminal Appeal No. 50 of 1951.
Appeal by SpeciaI Leave from the Judgment and Order dated the 26th September, 1950, of the High Court of Judicature of Nagpur (Herneon Acting C.J. and Hidayat Ullah J.) in Criminal Appeal No. 251 of 1950 arising out of Judg ment dated the 2nd August, 1950, of the Court of Sessions Judge, Jabalpur, in Sessions Trial No. 32 of 1950.
568 S.P. Sinha and M.Y. Sharif, Nuruddin Ahmad and (Shaukat Hussain, with them) for the appellant.
Gopal Singh for the respondent.
March 20.
The Judgment of the court was delivered by BOSE J.
The main question in this case is whether there is a right of private defence.
Most of the facts are not in dispute.
A communal ' riot broke out at Katni on the 5th of March, 1950, between some Sindhi refugees resident in the town and the local Muslims.
The trouble started in the locality known as Zanda Bazar or Zanda Chowk.
Police Constable Bharat Singh, P.W. 17, who made the First Information Re port, said that most of the shopkeepers in Zanda Bazar are Sindhis.
He stated that when he was to1d that trouble had broken out there he proceeded to the spot and found that the goods in the Muslim shops in that locality were scattered.
It is also in evidence that some Muslims lost their lives.
From this place he went on to Subash Chowk, the locality in which the appellant 's shop is situate.
It lies to the West of Zanda Bazar.
He states that when he got there he found a "crowd" there but not a "mob".
He admitted that he had said in the First Information Report that a gun was fired a minute after he had reached the spot and he said that what he had stated in the First Information Report was true.
It is not disputed that this shot was fired by the appellant, as also a second shot, and that that caused the death of one man (a Sindhi) and injured three others, also Sindhis.
The map, exhibit D 4, shows that the shops of the appellant and his brother Zahid Khan run into each other and form two sides of a rectangle, the appellant 's house facing north and the brother 's house facing east.
Each shop opens out on to a road.
569 It is proved that when the rioting broke out in the Zanda Chowk the alarm spread to the appellant 's locality and the people there, including the appellant, started closing their shops.
The appellant 's version is that the mob approached his locality and broke into the portion of the building facing east in which his brother 's shop is situate and looted it.
The High Court holds that this is proved and holds further that this preceded the firing by the appellant.
There is a hole in the wall between the two portions of the building in which these two shops are situate and the High Court holds that Zahid 's family got into the appel lant 's portion of the building through this hole and took refuge there.
The High Court also holds that the appel lant 's mother then told the appellant that the crowd had burst into his (appellant 's) shop and was looting it.
The learned Judges state that what he said was not quite true because all that the crowd did was to beat the door of the appellant 's shop with lathis as they were passing but had not broken into the shop.
But they accept the fact that the crowd was beating the doors of the appellant 's shop with their lathis.
In our opinion, the facts found by the High Court are sufficient to afford a right of private defence.
Under section 97 of the indian Penal Code the right extends not only to the defence of one 's own body against any offence affecting the human body but also to defending the body of any other person.
The right also embraces the protection of property, whether one 's own or another person 's, against certain specified offences, namely theft, robbery, mischief and criminal trespass.
The limitations on this right and its scope are set out in the sections which follow.
For one thing, the right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence.
Another limitation is that when death is 570 caused the person exercising the right must be under reason able apprehension of death, or grievous hurt, to himself or to those whom he is protecting; and in the case of property, the danger to it must be of the kinds specified in section 103.
The scope of the right is further explained in sec tions 102 and 105 of the Indian Penal Code.
Neither the learned High Court Judges nor the Sessions Judge has analysed these provisions.
Both Courts appear to be under the impression that actual looting of the appel lant 's shop was necessary before the right could arise.
In that they are wrong.
Under section 102 the right of private defence of the body commences "As soon as a reasonable apprehension of the danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed.
" Examining the provisions we have set out above, it is evident that the appellant had no time to have recourse to the authorities.
The mob or crowd had already broken into one part of the building and was actually beating on the doors of the other part.
It is also evident that the appel lant had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or his family learned Sessions Judge has eloquently drawn attention to the lamentable consequences of communal frenzy in India and in Katni in particular, and he refers to the indiscriminate looting of Muslim shops in that town.
So also the High Court holds that " Looking to the circumstances which had existed in the country before and the fact that the trouble was between the refugees and the local Muslims it cannot be said that there would be no danger to the life of the appellant or at least of grievous hurt if the mob had entered his shop and he prevented it.
The apprehension would undoubtedly be reason able.
" And we know that Muslim shops had already been broken into and looted and Muslims killed in the 571 rioting at Zanda Chowk which preceded this, in our opinion, the High Court was wrong in thinking that the appellant had to wait until the mob actually broke into his shop and entered it.
They have emphasised this in another part of their judgment also where they say that the shot was fired " when there was no looting at the shop and thus no right of private defence.
" It was enough that the mob had actually broken into another part of the house and looted it, that the woman and children of his family fled to the appellant for protection in terror of their lives and that the mob was actually beating at his own doors with their lathis and that Muslim shops had already been looted and Muslims killed in the adjoining locality.
It was impossible for him to know whether his shop would or would not suffer the same fate if he waited, and on the findings it was reasonable for him to apprehend death or grievous hurt to himself and his family once they broke in, for he would then have had the right to protest and indeed would have been bound to do what he could to protect his family.
The threat to break in was implicit in the conduct of the mob and with it the threat to kill or cause grievous hurt to the inmates; indeed the High Court Judges themselves hold that his own shop was menaced.
The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death.
These things cannot be weighed in too fine a set of scales or, as some learned Judges have expressed it, in golden scales.
We have next to see whether the appellant used more force than was necessary, and here also we cannot use golden scales.
He was entitled to cause death and he did not kill more than one man.
He fired only two shots and, as the learned High Court Judges observe, he obviously aimed low.
The High Court holds the mob had moved up to his locality When he fired the shots, so the looting and the beating 572 on the doors were not the isolated acts of a few scattered individuals.
It was the mob that was doing it and in the High Court 's words, "The very fact that in the town of Katni two shots should have struck four Sindhis and none else shows that the rival community was on the move in that area.
" In our opinion, the appellant did not use more force than was necessary.
Indeed, the firing, far from acting as a deterrent, spurred them on and they ransacked and looted the place.
We have confined our attention to the right of private defence of the person though in this case the question about the defence of property happens to be bound up with it.
The appeal is allowed.
The convictions and sentences are set aside and the appellant will be released.
| The appellant a Hindu undivided family carrying on business in grain kept its books of account according to the mercantile system and maintained in its cash books two accounts: one showing the cash balances from day to day and the other known as " Almirah account " wherein were kept large balances which were not required for the day to day working of the business.
On January 12, 1946, on which date the High Denomination Bank Notes (Deinonetisation) Ordinance, 1946, was promulgated, the cash balances of the appellant were RS.
29,284 in its Rokar and Rs. 2,81,397 in the Almirah account.
For the assessment year 1946 47 the appellant filed its Income tax Return showing a loss of Rs. 46,4I5 in the business.
The Income tax Officer, in the course of the assessment, noticed that the appellant encashed high denomination notes of the value of RS.
2,g1,000 on January 19, 1946, and the explanation given by the appellant was that these notes formed part of its cash balances including cash balance in the Almirali account, but it was rejected by the Income tax Officer relying on the following circumstances: (1) that the appellant 's food grains licence had been cancelled for the accounting year for its failure to keep proper stock accounts, (2) that the appellant was prosecuted under the Defence of India Rules but had been acquitted having been given the benefit of doubt, (3) that the appellant was a speculator, and as such could easily have earned amounts far in excess of the value of the high denomination notes encashed, (4) that notwithstanding the fact that the period was very favourable to the food grains dealers the appellant had declared a loss for the assessment year I944 45 UP to 1946 47, though it had the benefit of a large capital on hand, and (5) that the appellant was one of the premier grain merchants of Sahibganj, a place which had gained sufficient notoriety for smuggling foodgrains.
The Income tax Officer came to the conclusion that the appellant had all these probable sources from which it could have earned the sum of Rs. 2,91,000, and accordingly he treated the sum as the appellant 's secreted profits from business and included it in its total income.
The Appellate Tribunal accepted the account books produced by the appellant 302 and examined the cash book and taking into consideration all the circumstances which had been adverted to by the Income tax Officer took the view that the appellant might be expected to have possessed as part of its business cash balance of at least Rs. 1,50,000 in the shape of high denomination notes on January 12, 1946, when the Ordinance was promulgated, but that the nature of the source from which the appellant derived the remaining 14i high denomination notes of Rs. 1,000 each remained unexplained to its satisfaction.
It accordingly reduced the amount considered as the secreted profits from Rs. 2,91,000 to Rs. 1,41,000.
On reference, the High Court held that the finding arrived at by the Tribunal was one of fact and that it could not be urged that it was based on no evidence.
On appeal to the Supreme Court it was contended for the appellant that the finding arrived at by the authorities concerned, though it be one of fact, was vitiated by reason of the authorities indulging in conjectures, suspicions and surmises and basing the same on no material whatever which would go to support the same, and that, in any case, it was a preverse one which a reasonable body of men could not have arrived at on the material on the record.
Held, that the Tribunal had been influenced by the suspicions, conjectures and surmises which were freely indulged in by the Income tax Officer, and had arrived at its conclusion, as it were by a rule of thumb, without any proper materials before it and that its finding could not be sustained; that having accepted the appellant 's books of account it was not open to the Tribunal to accept the explanation of the appellant in part as to Rs. 1,50,000 and reject the same in regard to the sum of Rs. 1,41,000.
Messrs. Mehia Parikh & Co. vs The Commissioner of Income tax, Bombay; , and Kanpur Steel Co. Ltd. vs Commissioner of Income tax, Uttar Pradesh, [1957] 32 I.T.R. 56, relied on.
Where a Tribunal has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the court is entitled to interfere.
Dhirajlal Girdharilal vs Commissioner of Income tax, Bombay, ; Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, [1955] i S.C.R. 941; Messrs. Mehta Parikk and Co. vs The Commisioner of Income tax, Bombay, ; and Meenakshi Mills, Madurai vs Commissioner of rncome tax, Madras, [19561 S.C.R. 69i, followed.
|
ition (Criminal) No. 916 (Under Article 32 of the Constitution of India) Sunil K. Jain and Diwan Balak Ram for the Petitioners.
Manoj Swarup and Dalveer Bhandari for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Shri Ram Narain Dixit in this petition under Article 32 of the Constitution challenges the detention of Ajay Dixit, his son in the District Jail of Agra, under the .
The District Magistrate, Agra passed a detention order and served on Ajay Dixit hereinafter called the detenu under section 3 of the , hereinafter 846 called the Act, on six different grounds.
The grounds mentioned therein are as follows: "1.
That on 10.4.1981 at 10.30 p.m. you alongwith your companions surrounded Shri Kanhaiya Lal Sharma resident of Ferozepur and fired at him with the intention of killing him but he escaped slightly.
In this connection a case under S.307 of I.P.C. was lodged with the Police Station and is pending the trial in the court against you.
That on dated 27.9.82 at 3.10 p.m. you collected goondas in your house in the town of Ferozabad and when the police party reached in order to arrest the goondas you fired at the police party on which a case against you under section 307/34 of Indian Penal Code is pending the trial in the court.
That on dated 27.9.82 you were arrested by the police in the town of Ferozabad and a country made Tamancha and live cartridges without licence were recovered from your possession in respect of which a case against you under S.25/27 of Arms Act is pending the trial in the court.
That on 15.1.83 at 5.00 p.m. you alongwith your brother shot dead Shri Naresh Paliwal brother of Shri Sanjeev Kumar Paliwal resident of Ferozabad.
In this respect a case against you under S.302 of Indian Penal Code was registered in the Police Station and is pending trial in the court.
That on 31.10.83 Shri Sanjeev Kumar Paliwal lodged a report with the Thana Ferozabad (North) that he was carrying the profession of photography.
12 13 days before a boy took him away for the purpose of a photograph to a room where you and your associates were present and you forcibly compelled Mrs. Sanjeev Kumar Paliwal at the point of revolver to take a nude snap of immoral act being committed by Umesh with Sanjeev Kumar Gupta.
In this respect a case against you under Section 342/286 of Indian Penal Code was registered and the same is under trial.
That on 26.2.84 at about 5.00 p.m. you alongwith your associates in the town of Ferozabad attempted to murder 847 by sprinkling kerosene oil and by lighting it with a match box Shri Jai Kumar Jain resident of Ferozabad in order to recover your so called money in respect of which a case against you under S.307 of Indian Penal Code was register ed and is under trial.
" On the above grounds the District Magistrate by his order dated 29.2.1984 stated that he was satisfied that the said Ajay Dixit was likely to act in a manner prejudicial to maintenance of public order and that it was necessary to detain him with the object of preventing him from acting prejudicially to the maintenance of public order.
The said order was passed under Sub section (2) of Section 3 of The ., and the petitioner was detained from 29th February, 1984.
On March 14th, 1984 the petitioner submitted his representation to the Advisory Board.
On 23rd march, 1984, the State Government rejected the representation of the detenu.
The petitioners alleged that the procedures and formalities provided under the Act had not been made available and applied in the case of the detenu.
The petitioner states that the detenu was detained and the grounds mentioned in the order were illusory, insufficient and not bonafide and in any case irrelevant for the detention of the detenu for the maintenance of public order.
Subsection (2) of Section 3 of the Act empowers the Central Government and the State Governments, if satisfied with respect to any person, with a view to preventing him "inter alia from acting in any manner prejudicial to the maintenance of public order", it is necessary to do so to make an order directing such person be detained.
There are decisions which have dealt with limits and the scope of this rather drastic power of preventive detention vested in the Government and which is sanctioned under the provisions of Article 22(3), (4) and (5) of the Constitution.
There are various procedural safeguards like making known to the detenu within a particular time the grounds of detention and giving him information that he can make representation against the detention within a particular time and further that the representation should be placed before the Advisory Board and the opinion of the Advisory Board should be placed before the Government concerned Land thereafter decision taken.
The petitioner made some other averments of non com 848 pliance with the procedural safeguards under the Act.
The main ground in the petition is that the petitioner was not informed of the rights available to him nor of the reasons or order passed on his representation.
In view of the averments made in the petition and the affidavits filed on behalf of respondent, it is not necessary in the facts and circumstances of this case to discuss these in detail.
Preventive detention is an exception to the normal procedure.
It is sanctioned and authorised for very limited purpose under Article 22(3)(b) with good deal of safeguards.
The exercise of that power of preventive detention must be with circumspection and care.
We are governed by, the Constitution and our Constitution embodies a philosophy of government and a way of life.
The working of this Constitution requires understanding between those who exercise power and the people over whom or in respect of whom such power is exercised.
The purpose of all government is to promote common well being and it must sub serve the common good and it is necessary therefore to protect individual rights as far as consistent with security of the society and an atmosphere where the even tempo of the community is least endangered.
These provisions should be so read as to imply grant of power and also limit the user of the power.
The observance of a written law about the procedural safeguards for the protection of the individual is the normal and high duty of a public official.
But in all circumstances is not the highest.
The law of self preservation and national security often claimed a higher priority.
"To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us, thus absurdly sacrificing the end to the means", Thomas Jefferson Writings (Washington ed.
V. page 542 545 Sometimes the executive may have to act without normal safeguards for ordinary detention and resort to preventive detention when the necessity demands it, but it must explain its action when called upon in judicial review and ask for acquittance, The question of difference between 'law and order ' and 'public order ' has come up many a times ill judicial decisions.
In the case of Dr. Ram Manhohar Lohia vs State of Bihar & Ors., a Constitution Bench of this court had to consider this controversy in the context of Rule 30 (i) (b) of the Defence of India Rules, 1962.
Mr. Justice Sarkar who was a party to the majority view 849 observed that it was not necessary to take too technical a view but one should proceed in a matter of substance, if a man could be deprived of his liberty by the simple process of making of an order he could only be so deprived of it if the order is in terms of rule.
If for the purpose of justifying the detention such compliance by itself is enough, non compliance must have a contrary effect.
A mere reference in the detention order to the rule is not sufficient to show that by "law and order" what was meant was public order.
The learned judge observed that the order no doubt mentioned another ground of detention namely prevention of acts and so far as it did so, it was clearly within the rule.
But the order has notwithstanding this, to be held illegal, though it mentioned a ground on which a legal order of detention could have been passed, because it could not be said that in what manner and to what extent the valid and invalid grounds operated on the mind of the detaining authority.
Of course, as the present law stands if one of the grounds is invalid the order of detection can not be set aside merely on that ground.
The National Security (Second Amendment) Act, 1984 was assented to by the President on 31st August, 1984 and it provided that it should be deemed that the Act had come into force on the 21st of June, 1984.
Section 5A of the Act by virtue of Section 2 of the National Security (Second Amendment) Act, reads as follows: "5A.
Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly: (a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are (i) Vague, (ii) non existent, (iii)not relevant, 850 (iv) not connected or not proximately connected with A such person, or (v) invalid for any other reasons whatsoever.
and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention: (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.
" The Act specifically makes the provision of Section SA of the amended portion of the Act applicable in case of an order of detention whether passed before the commencement of the ' National Security (Second Amendment) Act, 1984 or after it.
Therefore in this order of detention section 5A would be applicable, as the order was passed before the coming into force of the National Security (Second Amendment) Act, 1984.
Justice Hidayatullah, as the learned Chief Justice then was, and Justice Bachawat observed in the said decision that the satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer, to a petition for a writ of habeas corpus.
But when from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers, there is need to cause and enquire.
The enquiry then is, not with a view to investigate the sufficiency of the materials but into the officer 's notions of his power.
If the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail to be a good order.
When the liberty of the citizen is put within the reach of authority and the scrutiny by courts is barred, the action must comply not only with the substantive requirements of law but it should be with those forms which alone can indicate the substance.
The learned judges further observed that the contravention 'of law ' always affects 'order ' but before 851 it could be said to affect 'public order ', it must affect the community or the public at large.
One has to imagine three concentric circles, the largest representing "law and order", the next representing "public order" and the smallest representing "Security of State ' '.
An act may affect "law and order" but not "public order", just as an act may affect 'public order" but not "Security of the State".
Therefore one must be careful in using these expressions.
In the decision of this Court in this case of Arun Ghosh vs State of West Bengal, the question was whether the grounds mentioned could be construed to be breach of public order and as such the detention order could b e validly made.
There the appellant had molested two respectable young ladies threatened their fathers life and assaulted two other individuals.
He was detained under section 3(2) of the in order to prevent him from acting prejudicially to the maintenance of public order.
It was held by this Court that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society.
The test is: Does it lead to a disturbance of the even tempo of the life of the community so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquillity of society.
This court found in that case however reprehensible the appellant 's conduct might be, it did not add up to the situation where it may be said that the community at large was being disturbed.
Therefore, it could not be said to amount to an apprehension or breach of public order, and hence, he was entitled to be released.
The law on this point was stated by this Court in the case of Ram Ranjan Chatterjee vs State of West Bengal as follows: "lt may be remembered that qualitatively, the acts which affect 'law and order ' are not different from the acts which affect 'public order '.
Indeed, a state of peace or orderly tranquillity which prevails as a result of the observance or enforcement of internal laws and regulations by 852 the Government, is a feature common to the concepts of 'law and order ' and 'public order '.
Every kind of disorder or contravention of law affects that orderly tranquillity.
The distinction between the areas of 'law and order ' and 'public order ' as pointed by this Court in Arun Ghosh vs State of West Bengal, is one of degree and extent of the reach of the act in question on society".
lt 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.
If tile contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only.
These concentric concepts, of 'law and order ' and 'public order ' may have a common 'epicentre ', but it is the length magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it is an act affecting 'public order ' from that concerning 'law and order '.
Reliance was also placed upon Jaya Mala vs Home Secretary Government of J & K.
In that case also a criminal case had been started on the basis of an incident.
The Court felt that the grounds of detention were such grounds upon which no valid order can be sustained.
It has been further observed at page 540 as follows: "But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. .
If every infraction of law having a penal sanction by itself is a ground for detention danger looms larger that the normal criminal trials, and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law.
" See also in this connection the observations of this Court in Alijan Mian vs District Magistrate, Dhanbad and others.
Stale incidents cannot also be a valid ground for sustaining detention.
See in this connection the observations of this Court 853 in Kamkalar Prasad Chaturvedi vs State of M.P. and Another.
When a challenge is made to detention on the grounds that the stale and irrelevant grounds were the basis for detention then the detenu is entitled to be released and to that extent the order is subject to judicial review not on the ground of sufficiency of the grounds nor the truth of the grounds but only about the relevancy of the grounds which would come under judicial scrutiny.
Bearing the aforesaid principles in mind, the first ground mentioned in the order of detention was that the detenu along with the companions surrounded one Kanhaiya Lal Sharma and had committed an offence under Section 307 of Indian Penal Code on or about 10th April, 1981.
Apart from the fact that the ground was old and stale, it is irrelevant inasmuch as the detenu has been acquitted of the charge before the detention order was passed.
He was acquitted on 2nd February, 1984 whereas the detention order was passed on 29th February.
The respondents in their counter do not dispute this position but state that the information had not reached the detaining or the recommending authority.
This is unfortunate.
The other grounds mentioned in the detention order no doubt are also unfortunate and the conduct alleged of the detenu is reprehensible.
Such conducts, if true, are not of such nature as could possibly endanger 'public order '.
The incident was alleged to have happened ten or twelve days prior to 31st October, 1983, yet the detention order was passed quite some time thereafter in February, 1984.
In certain criminal charges mentioned in grounds numbers 2,3, 4 and 5, there is no difficulty in arresting the detenu.
The grounds mentioned therein are not of such magnitude as to amount to apprehend disturbance of public order, nor was there any evidence that for any conduct of the detenu public order was endangered, or there could be reasonable apprehension about it.
As emphasised by the decisions of this Court, it is important to bear in mind the difference between law and order situation and maintenance of public order.
The act by itself is not determinate of its gravity.
In its quality it may not differ from another but its potentiality may be very different.
Therefore the question whether a man has only committed a breach of law and order or acted in a manner likely to the disturbance of public order is a question of degree of the reach of the act upon 854 society.
In this connection it may be appropriate to refer to the observations in the case of Arun Ghosh vs State of West Bengal (supra) at page 290 as follows: "It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society.
The French distinguish law and order and public order by designating the latter as order publique.
The latter expression has been recognised as meaning something more than ordinary maintenance of law and order.
Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large.
He drew an analogy between public and private crime.
The analogy is useful but not to be pushed too far.
A large number of acts directed against persons or individuals may total up into a breach of public order.
In Dr Ram Manohar Lohia 's case examples were given by Sarkar, and Hidayatulla, JJ.
They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other.
It is always a question of degree of the harm and its effect upon the community.
The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? This question has to be faced in every case on facts.
There is no formula by which one case can be distinguished from another.
" It is, therefore, necessary in each case to examine the facts to determine, not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order.
In view of the nature of the allegations mentioned in the 855 grounds, we are of the opinion that these are not such a nature as to lead to any apprehension that the even tempo of the community would be endangered.
Therefore the detention of the detenu under the provisions of Section 3(2) of the Act was not justified.
There are various allegations of mala fide in this application namely that one of the relations of Advocate General of U.P. was involved.
It is alleged that the Advocate General of U.P. is the father in law of a local resident with whom the family of the detenu had land dispute due to which many attempts on the life of the detenu and his brother had been caused to be made by the Advocate General.
In the view we have taken it is not necessary for us to go into these questions.
There are some submissions about the procedural irregularities.
Though on the whole we do not find much substance but it is not necessary also to detain ourselves on the examination of these question.
In the aforesaid view of the matter, the detention order dated 29th February, 1984 which is Annexure I to the petition is hereby quashed.
The detenu should be set at liberty forthwith.
M.L.A. Petition allowed.
| Section 3 (2) of the (for short, the Act) empowers the Central Government and the State Governments, if satisfied With respect to any person, with a view to preventing him, "inter alia from acting in any manner prejudicial to the maintenance of public order", it is necessary to do so to make an order directing such person to be detained.
Section 5 A of the Act by virtue of section 2 of the National Security (Second Amendment) Act provides.
(i) that where a person has been detained under section 3 of the Act on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and that such an order shall not be deemed to be invalid or inoperative merely because one or some of he grounds are vague, non existent, non relevant, not connected or invalid for any reasons whatsoever and the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.
The District Magistrate, Agra passed an order of detention of Ajay Dixit, the detenu, under section 3 (2) of the Act on 29th February 1984 stating that he was satisfied that the detenu was likely to act in a manner prejudicial to maintenance of public order and that it was necessary to detain him with the object of preventing him from acting prejudicially to the maintenance of public order.
The grounds of detention were (i) that on 10.4.81 the detenu alongwith his companions surrounded Shri Kanhaiya Lal Sharma with the intention of killing him but the latter escaped slightly; (ii) that on 27.9.82 he fired at the police party from his house where the policy had gone to arrest goondas collected by him; (iii) That on his arrest on 27.9.1982 a country made 844 Tamancha and two live cartridges without licence were recovered from him; (iv) That on 15.1.83 he shot dead Shri Naresh Paliwal; (v) That on 31.10.1983, he forcibly compelled Mrs. Sanjeev Kumar Paliwal at the point of a revolver to take a nude snap of immoral act being committed by Umesh with Sanjeev Kumar Gupta; and (vi) That on 26.2.1984, he attempted to murder Shri Jai Kumar Jain.
The grounds of detention also stated the fact that criminal cases were pending trial in the court in respect of the above criminal acts committed by the detenu.
The petitioner father of the detenu, moved this Court under Article 32 of the Constitution for a writ of habeas corpus directing the release of the detenu from detention.
He contended, inter alia, that the grounds mentioned in the order wore illusory, insufficient and not bona fide and in any case irrelevant for the detention of the detenu for the maintenance of public order.
Allowing the writ petition, ^ HELD: (1) The satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer to a petition for a writ of habeas corpus.
But when a challenge is made to a detention on the grounds that the stale and irrelevant grounds were the basis for detention, then the detenu is entitled to be released and to that extent the order is subject to judicial review not on the ground of sufficiency of the grounds nor the truth of the grounds but only about the relevancy of the grounds which would come under judicial scrutiny.
It is, therefore, necessary in each case to examine the facts to determine not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order.
[850F; 853A B; 854G H] (2) It is important to bear in mind the difference between the law and order situation & maintenance of public order.
The contravention 'of law ' always affects 'order, but before it could be said to affect 'public order ' it must affect the community or the public at large.
The question whether a man has only committed a broach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society.
The test is: Does it lead to a disturbance of the even tempo and current of life of the community so as to amount to a disturbance of the public order.
Or, does is affect merely an individual without affecting the tranquillity of society.
It may be remembered that qualitatively, the acts which affect 'law and order ' are not different from the acts which affect 'public order '.
Indeed a state of peace or orderly tranquillity which prevails as a result of the observance or enforcement of internal laws and regulations by the Government is a feature common to the concepts of 'law and order.
and 'public order ' Every kind of disorder or contravention of law affects that orderly tranquillity.
The distinction between the areas of 'law and order ' and 'public order ' "is one of degree and extent of the reach of the act in question on society".
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.
If the contravention in its effect is confined only to a few individuals directly involved as 845 distinguished from a wide spectrum of the public, it would raise a problem of law and order only.
These concentric concepts of 'law and order ' and 'public order ' may have a common 'epicentre ', but it is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order ' from that concerning law and order.
[851A B; D E; G H; 852A D] (3) In the instant case, apart from the fact that the first ground was old and stale, it is irrelevant in as much as the detenu has been acquitted of the charge before the detention order was passed.
The other grounds mentioned in the detention order no doubt are also unfortunate and the conduct alleged of the detenu is reprehensible.
Such conducts, if true, are not of such nature which could possibly endanger 'public order '.
The grounds mentioned therein are not of such magnitude as to amount to apprehend disturbance of public order, nor was there any evidence that for any conduct of the detenu public order was endangered, or there could be reasonable apprehension about it.
In view of the nature of the allegations mentioned in the grounds, this Court is satisfied that these are not of such a nature as to lead to any apprehension that the even tempo of the community would be endangered.
Therefore, the detention of the detenu under the provisions of section 3 (2) of the Act was not justified.
[853C D; 855A] Dr. Ram Manohar Lohia vs State of Bihar & Ors Arun Ghosh vs State of West Bengal , Ram Ranjan Chatterjee vs State of West Bengal ; at 146 Jaya Mala vs Home Secretary Govt.
of J & K. , Alijan Mian V. District Magistrate, Dhanbad and Others [1983] 4 S.C.C. p 301.
at 308 and Kamlakar Prasad Chaturvedi vs State of M.P. and An other.
[1983] 4 S.C.C. 433. followed.
|
ivil Appeal Nos. 2542 to 2544 of 1972.
Appeals by Special Leave from the Judgment and order dated 11 12 1970 of the Madras High Court in Civil Revision Petitions Nos.
1824 and 1825/65.
V. P. Raman, Adv.
and A. V. Rangam for the Appellant.
1123 A. T. M. Sampath for Respondent in C.A. 2542/72.
K. section Ramamurthi, Mrs. Saroja Gopalkrishnan for Respondent in C.A. 2542/72.
K. Jayaram and K. Ram Kumar for R. 1 in CA 2544/72.
K. Rajendra Choudhry for R. 2 in C.A. 2544/72.
The Judgment of.
the Court was delivered by KRISHNA IYER J.
The short point of law decided in the long judgment under appeal may justly be given short shrift.
But the batch of Civil Revision Petitions allowed by the High Court involves a legal issue of deep import from the angle of agrarian reform and surplus land available for distribution under its scheme that we deem it proper to discuss the core question at some length.
If the statutory construction which found favour with the High Court be correct the risk of reform legislation being condemned to functional futility is great, and so the State has come up in appeal by Special Leave challenging the High Court 's interpretation of section 22 of the Tamil Nadu Land Reforms (Fixation of Ceiling on land) Act, 1961 (for short, the Ceiling Act).
Presently, we will set out the skeletal facts relating to the civil appeals and the scheme of the Act designed for distributive justice in the field of agricultural land ownership, sufficient to disclose the purpose of the legislation, the mischief it intends to suppress, the reverse effect of the construction put on the key section (section 22) in the judgment under appeal and the consequent stultification of the objective of the Ceiling Act.
While dealing with welfare legislation of so fundamental a character as agrarian reform, the court must constantly remember that the statutory pilgrimage to 'destination social justice ' should be helped, and not hampered, by judicial interpretation.
For, the story of agrarian re distribution in Tamil Nadu, as elsewhere, has been tardy and zigzag, what with legislative delays, judicial stays and invalidations, followed by fresh constitutional amendments and new constitutional challenges and statutory constructions, holding up, for decades, urgent measures of rural economic justice which was part of the pledges of the Freedom struggle.
It is true that judges are constitutional invigilators and statutory interpreters; but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation 's appointed instrumentalities in the transformation of the socio economic order.
The judiciary in its sphere, shares the revolutionary purpose of the Constitutional order, and when called upon to decode social legislation must be animated by a goal oriented approach.
This is part of the dynamic of statutory intretation in the developing countries so that courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transac 1124 tions of many manifestations now so similar in the country and illustrated by the several cases under appeal.
This caveat has become necessary because the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme.
The Ceiling Act, in its structure and process, follows the common pattern.
The object is equitable distribution of land to the landless by relieving those who hold more than the optimum extent fixed by the law.
The success of the scheme depends on maximisation of surplus land to be taken over by the State from large landholders.
The strategy of fixing a severe ceiling on land holdings was expected to be paralysed by anticipatory strategems by landholders and so the legislature sought to outwit them and clamped down pre emptive restrictions on transfer whereby the surplus takeover would be sabotaged, Chapter II prescribes the ceiling on land holdings and Chapter III proscribes certain types of deleterious transfers and future acquisitions.
One such provision is section 22 which falls for immediate dissection.
The machinery for working out the scheme includes 'authorised officers ' defined in section 3(5) of the Ceiling Act.
The rest of the infrastructure for implementation of the statutory scheme is not material for our case nor the other chapters relating to compensation, exemptions and the like Chapter XI provides for appeals and revisions and the High Court, by virtue of section 83 read with section 115 of the Code of Civil Procedure, has jurisdiction to entertain revisions against orders of Land Tribunals which enjoy appellate powers over orders of authorised officers in the manner provided.
The present appeals are against a common order of the High Court allowing several revision petitions under section 115 C.P.C.
Now, the respondents before us in the several appeals are persons whose transfers have been held void by the authorised officer and the land Tribunal but upheld by the High Court on a narrow construction of section 22 of the Ceiling Act.
The alienations took many forms ranging from stridhana to bona fide sale but shared one common attribute that they were executed during the suspect spell, if one may say so, between the date of commencement of the Act and the notified date.
The legislature, in its realistic anxiety and pragmatic wisdom, demarcated a lethal zone viz., the period between the two dates stated above when all landholders with lands in excess of the ceiling would desperately salvage their surplus by resort to devices, some bona fide, some not, but all having the effect of frustrating the legislative objective of freezing holdings as on the date of commencement of the Act and seizing the surplus in terms cf the Act for eventual equitable distribution, after payment of statutory compensation.
1125 Before embarking on any further discussion of the project of interdicting transfers, as spelt out in section 22, we may read the provision: "Where on or after tho date of commencement of this Act, but before the notified date, any person has transferred any land held by him by sale, gift (other than gift made in contemplation of death), exchange, surrender, settlement or in any other manner except by request or, has effected a partition of his holding or part thereof, the Authorised officer within whose jurisdiction such land, holding of the major part thereof is situated may, after notice to such person and other persons affected by such transfer on partition and after such enquiry as he thinks fit to make declare the transfer or partition to be void if he finds that the transfer or the partition as the case may be, defeats any of the provisions of this Act.
" Three semantic alternatives compete for judicial acceptance.
The first, which appealed to the Land Tribunal is that all alienations during the dubious period specificated in section 22, if executed by a holder who, but for such shedding operation or alienation, would have had lands in excess of the ceiling prescribed by the Act, are void because they are sure to defeat the 'surplus ' provisions of the Act.
The second alternative, which swings to the other extreme but has met with the High Court 's approval, virtually salvages all such transfers save sham and mala fide ones, for only if they are obnoxious in that sense can they be caught in the coils of section 22.
The third possible construction, which is in between the two extremes and has been forcefully pressed before us by Shri K. section Ramamurthy, validates bona fide transfers even during the offending period, the reason being that regardless of their impact on the scheme of the Act or its provisions, the primary object is bona fide fulfilment of the alienor 's purposes such as discharge of pressing debts or borrowing to perform necessitous obligations and not to defeat or thwart the purposes or provisions of the Act.
The judicial choice from among these triple possibles depends on the rules of statutory interpretation.
In the present case the basic facts are beyond dispute.
The legislature had a defined plan of providing for a ceiling on land holding, taking over the balance and distributing it among the landless according to priorities.
In this perspective it defined the "date of the commencement of this Act in section 3(11) as meaning the 15th day of February, 1970.
It also defined in section 3(31) the notified date.
As stated earlier, the Ceiling Act had 1126 a chequered career in court and, indeed, at one stage the whole Act was struck down as unconstitutional.
However, now it is immune to attack having been included in the Ninth Schedule and there is no challenge to its vires before, us.
On account of extensive mischief done by alienations on a considerable scale calculated to undo the public policy behind agrarian reform the legislature felt the necessity to provide in section 22 that transfers made between 6 4 1960 and 2 10 1962 would be void if they defeated the provisions of the Act.
In all the cases before us the transfers which have been ignored by the Authorised officer fall within this interregnum.
That being admitted, the only question is whether the lethal effect of section 22 operates only in the case of transfers which are sham and specifically intended to defeat the Act or does not affect transfers which are otherwise bona fide or is so pervasive that if the effect of the transfer is to defeat the provisions of the Act, whatever the intent of the parties, the transfer is void and can be ignored vis a vis the Ceiling Act and the Authorised officer may legitimately proceed to compute the surplus area on this basis.
The learned judge adverted to an argument that the Act being a confiscatory one, the public authority "invested with the power to enquire into and to invalidate a transfer should act reasonably, and that such a power should be construed beneficently in favour of the subject who is affected by the statue (emphasis added).
This approach, sanctified by tradition and vintage jurisprudence, is inept and inapplicable when we consider agrarian reform legislation whose avowed purpose is to take away as much extent of land as policy dictates so that distribution thereof among the landless may be achieved.
When a whole legislation is geared to deprivation of property, subject to payment of compensation, rules which have frowned upon confiscatory legislation cannot apply at all.
We are concerned with a Re public created by the people of India, with a social transformation where the State is hot antagonistic to the citizen but harmonises individual interest with community good.
The jurisprudential principles in such a situation cannot be the same as have been inherited from a culture which postulates the State versus the subject.
We do not explore the aspect of the law further as we are satisfied that the answer to the specific question raised before us flows directly from a reading of the Section in the light of well established rules of interpretation.
Section 7 is a key provision and runs as follows: "on and from the date of commencement of this Act, no person shall, except as otherwise provided in this Act but 1127 subject to the provisions of Chapter VIII be entitled to hold land in excess of the ceiling area; Provided that in calculating the total of land held by any person, any extent in excess of the ceiling area and not exceeding half an acre in the case of wet land and one acre in the case of dry land shall, irrespective of the assessment of such land, be excluded.
" Section 8 directs every person who holds land in excess of 30 standard acres to submit a return with specified particulars.
Section 18 is the culmination and provides for the publication of a notification to the effect.
that the surplus land with each landholder is required for a public purpose.
Thereupon such land shall be deemed to have been acquired for a public purpose and shall vest in the Government.
Chapter III is a protective armour created by the statute with prohibitions and proscriptions.
In particular, section 22, which we have quoted earlier, contains an interdict.
If any transfer, contrary to its tenor, is created it can be voided by the Authorised officer.
The whole purpose is to make available land with Government for its equitable dispensation according to the statutory plan.
Section 94 is relevant in this context.
6 4 1960 is the date of commencement of the Act.
2 10 62 is the notified date.
Transfers in between these two dates have been executed by the respondents in the various appeals before us.
The concrete question is wether section 22 has the effect of rendering such transfers invalid ipso facto or whether there is need for further proof that such transfers are "sham, nominal and bogus".
The view taken by the High Court is that: " .
Section 22 seems to cover only those sham, nominal and bogus transfers which are only intended to defeat the provisions of the Act.
If the Legislative intention is also to invalidate all bona fide transactions during the relevant period, it would have made certain consequential provisions as to what are the rights of the transferor and the transferee in relation to the property conveyed, and how the resultant equities between the transferee and the transferor have to be worked out.
This view that section 22 will cover only transactions of sham, nominal and bogus character which are intended only to defeat the provisions of the Act will not be inconsistent with the object provided in section 7." 1128 The learned judge seems to take a liberal view that transactions entered into in anticipation of the Ceiling Act will not be hit by the provisions preventing such transfers except where they are mala fide or oolourable.
The reason partly turns on semantics and the court argue with logical support: "The word "defeat" normally means overcome, thwart, evade, frustrate, circumvent, bypass, disappoint, prevent, the accomplishment of the word "defeat" in Section 22 is one to be taken as having been used to import sinister, motive.
I Maxwell on the interpretation of statutes, twelfth edition, after stating that the Courts will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net, that the statute has to be applied to the substance rather than the mere from of transactions thus _ defeating any shifts and contrivances which parties may have devised in the hope of falling outside the Act.
" The conclusion categorically reached by the High Court virtually emasculates section 22 as we understand its object and import.
The learned judge winds up with these words: "on a due consideration of the matter, I hold that under section 22 of the Act the authorised officer is entitled to declare as void only those transfers which are sham and nominal entered into with the avowed object of defeating the provisions of the Act, without any bona fide intention to transfer title.
So in the light of the view expressed above the facts of each case have to be considered.
" Section 22, literally read leads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the Authorised Officer "if he finds that the transfer defeats any of the provisions of this Act.
" There is not the slightest doubt that severally and cumulatively the provisions of the Act seek to make available the maximum extent of land, in excess of the ceiling, to be vested in Government for fulfilment of its purposes.
Chapter II contains a fasciculus of provisions in this behalf and if any transfer carves out of the surplus area some land, pro tanto, the provisions of the Act are defeated.
Indeed, it is not seriously disputed that such will be the conclusion if we do not read into the provisions either the condition that it does not apply to bona fide transfers, as Shri Ramamurthy would have it, or does not apply to any transfers other than sham, nominal or bogus transfers, as the High Court would have it.
A policy oriented interpretation tallies with the literal construction in the 1129 present case.
The mischief rule in Heydon 's case and the grammatical construction which is the Golden Rule converge to the same conclusion in the present case.
The policy of the law of land reform with drastic limit on holdings often drives large holders to evade by manouvres.
They make r .
gifts, execute sales or settlements, enter into other dealings to save their properties from being taken by the State.
May be in a few cases, the owner has real necessity.
But why sell only on The eve of land legislation? Why execute deeds, though for good purposes, only where the bill fixing ceilings is round the corner? By and large, the strategies of extrication of holdings from the arm of the law is the t reason that prompts sudden affection for making gifts, sudden realisation of debts due and sudden awareness of family necessity.
The legislature, astute enough not to be outwitted in its objective, puts a blanket ban on transfers which, in effect, defeat its provisions.
This may cause hardship to some but every cause claims martyrs.
Individual trauma is inevitable while ushering in a new economic order.
This is the rationale of section 22 of the Ceiling Act.
To alloy the sense of the text and to mi alien concepts is to debase the statutory metal.
Likewise, laws are not value free and so he reads the symbols of words best who projects in the process the values of the legislation as distinguished from his own.
Reading other values into the legislators ' words may judicially demonetize the statute and break me comity between constitutional instrumentalities.
The current and correct view of the interpretative process is that words must be given their 'literal ' or 'ordinary ' meaning unless there are compelling reasons, recognised by canons of construction, to the contrary.
It must be remembered that the judicial rule of law for interpreting statutes applies the grammatical approach, thereby to bring out the value judgment incorporated in the statute itself.
Some times it is called the 'equity of the statute '.
As Prof. R. B. Stevens of the Yale University has pointed out: "Whenever the judges support to depart from the literal or ordinary meaning, and apply the mischief rule or the golden rule, there is danger that in place of those irrelevant criteria, the canons of construction, they have more obviously substituted their own (perhaps more harmful) impressions, views, prejudices or predispositions.
Such conflicts between what Parliament intended and what the judges assumed Parliament to have intended have long been appreciated.
"(1) (I) Modern Law Review, Vol.
28,1965 p 525 16 409 SCI/79 1130 Those who have reflected on the meaning of meaning have said that words. "mean" nothing by themselves. (1).
They convey policy and the judge who interprets must seek the intent of the legislature by gaining an insight into this policy and making it manifest through the process of construction.
Looking at the words of section 22 in the light of the scheme, of prohibition of transfers to preserve the surplus lands for distribution, we find no justification for importing into section 22 more than its words convey.
The Section says what it means, nothing more, nothing else.
A simple scan of the provision reveals that any transfer, gift, surrender, settlement or other alienation referred to in the Section may be declared void by the Authorised officer "if he finds that the transfer or the partition. defeats any of the provisions of this Act.".
The trichotomy is obvious.
There must be a transfer or other alienation.
It must have taken place during the period mentioned in the Section.
It must have the effect of defeating any of the provisions, of the Act.
If these three elements are present, the Authorised officer must void the transfer.
There is no room for importing a fourth principal that the transfer should be 'sham, nominal or bogus '.
Nor indeed is there any additional consideration that if the transfer is bona, fide for family necessity or other urgency then it is good, even though it defeats the provisions of the Act.
We cannot amend the Section or dilute its imperatives, scared by the consequences or moved by extraneous sympathies.
Sub conscious forces and individual prepossessions have a subtle way of entering the interpretative verdict of the judge.
We have to be constantly careful to exclude such intrusions.
Moreover, when the whole purpose of the Section is, to prevent any alienation which defeats any of the purpose if visions of the Act, it is impermissible to introduce any requirement, other than is mentioned in the Section, as a condition for its operation.
Obviously, the provision seeks to provide social justice for the landless and it defeats the purpose if, by the interpretative process, soft Justice to large landholders is brought about.
We consider the 'literal ' meaning of the Section to be that any transfer or other alienation mentioned in the Section which reduces or impairs the otherwise available extent of surplus land beyond the ceiling "defeats. the provisions of this Act.
" This is the plain meaning of the Section which gives no room for doubt or justification for importation of any further condition like sham, bogus etc.
A return to the rules of strict construction, when the purpose of (I) C. Ogden and I. Richards, The Meaning of Meaning 9 (10th Edn. 1956) 1131 the statute needs it, is desirable, especially with a view to give effect A to the intention of the legislature.
We are reminded of Lord Denning 's interesting remarks in his recent book "The Discipline of Law" under heading "I am a Portia Man".
In justification of his view Russell LJ quoted a passage from Shakespeare.
It is worth recording because there are lessons to be drawn from it as there often are from Shakes peare. 'I may perhaps be forgiven for saying that it appears to me that Lord Denning MR has acceded to the appeal of Bessanio in the Merchant of Venice.
Bessanio "And, I beseech you, Wrest once the law to your authority: To do a great right, do a little wrong.
But Portia retorted: "It must not be; there is no power in Venice Can alter a decree established: It will be recorded for a precedent, And many an error, by the same example, Will rush into the State: it cannot be." Then said Russell LJ. 'I am a Portia man '.
I cannot believe that Russell LJ would be a 'Portia man ' if it meant aligning himself with Shylock in support of a strict law of penalties which could not be relieved by equity.
To be truly a 'Portia marl ' The lawyer should follow the way ill which Portia avoided an unjust decree.
Not to let the words of the deed be the masters: but so construe them adapt them as the occasion demands so as to do what justice and equity require.
This is how she turned the tables on Shylock: It is in this denouement that I would follow the example of Portia I too am a Portia man In the interpretation of section 22 we too are Portia men.
For this reason we reverse the view of the High Court that section 22 will not apply to nullify any transaction of transfer or partition unless it is further 1132 shown that it is sham, nominal or bogus.
Nor do we agree with Shri Ramamurthy that even if a Transaction defeats the ceiling provisions, it may still be valid if the transfer is, from an individual point of view, bona fide.
The short reply is that from the community 's angle, especially the landless community 's angle hungering for allotment, the alienation, however necessary for the individual, is not bona fide visa vis the community.
Therefore, we allow the appeal in the light of the interpretation we have adopted, restore the tribunal 's holding and rule that if any transfer defeats the provisions of the Act by reducing the extent of surplus land in excess of the ceiling available from any person such transaction bona fide or not, is void in the matter of computation of the permissible area and the surplus area.
May be, that the transaction may be good for other purposes or may not be.
The Authorised officer is within his power if he ignores it as void for purposes of section 22, section 7 and other ceiling related provisions.
The detailed discussion of the High Court on many other aspects of the Act do not affect the core of the matter and cannot deflect us from the conclusion we have arrived at.
The appeals are allowed but in the light of the earlier direction of the Court the State will pay the costs of the respondent.
P.B.R. Appeal allowed.
| A suit (No. 1262/53) Challenging the notification under Section 4 of the Land Acquisition Act dated 10 10 1952 issued by the former Government of Bombay and later another notification under Section 6 of the Act dated 14 8 1953 (issued during the pendency of the suit), notifying that the final plots Nos. 41.
42 and 43 were required for public purpose viz. State Transport was dismissed by the Trial Court on 28 1 1959.
The first and the second appeals having failed, the respondents came up to this Court.
This Court in its decision inter partes, Valji Bhai 's case struck down Section 6 notification on the ground that the acquisition being for the benefit of a Corporation, though for a public purpose was bad beeause no part of the compensation was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with.
After the bifurcation of the erstwhile State of Bombay, the land acquisition proceedings came within the cognizance of Gujarat State.
The State by its letter dated 22 8 1966 decided to contribute towards compensation a sum of Re. 1/ which was subsequently raised to Rs. 500/ .
The Government felt that as long time has elapsed since the earlier report under Section 5A was submitted by the Collector, a fresh enquiry should be made.
Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1 8 1966 intimating to the respondents that if they so desired they might submit their further objections on or before 16 8 1966.
Complying with this notice, the respondents submitted further objections on 31 8 1966 and they were also given a personal hearing.
After examining the enquiry report submitted by the enquiry officer the Government of Gujarat issued a notification under Section 6 on 10 10 1967.
The respondents questioned the validity and legality of this notification in the writ petition filed by them on 14 2 1968 on the only ground that it was issued more than 15 years after the date of Section 4 notification.
The High Court was of the opinion that if the power to make a declaration under Section 906 6 is exercised after an unreasonable delay from the date on which notification under Section 4 is issued such exercise of power would be invalid and it accordingly struck down the notification under Section 6 of the Act.
Hence the two appeals one by the State of Gujarat and the other by the Gujarat State Road Transport Corporation.
Allowing the appeals by certificate, the Court ^ HELD: 1.
The impugned section 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore could not be struck down on the only ground that the power to issue second section 6 notification was exercised after an unreasonable and unexplained delay.
Section 6 notification, dated 10th october 1967, therefore is valid and legal.[918G H, 919A] 2.
A combined reading of the provisions contained in sub section (2) of Section 4 with the one contained in the proviso to sub section (1) of Section 6 introduced by the Land Acquisition (Amendment and Validation) Act, (Central Act 13 of 1967) with effect from 20 1 1967 would make it clear that the Government would be precluded from making a declaration under section 6 after the expiry of a period of three years from the date of issue of a notification under Section 4 which may be issued after the Amendment Act came into force.
And in respect of those section 4 notifications which were issued prior to the commencement of the Ordinance i.e. 20 1 1967, any notification which is required to be issued under section 6 must be made within a period of two years whereafter as a necessary corollary all section 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source of reservoir for issuing section 6 notification.
Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of sections 4, 5A, and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied.
The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met.
Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief.
Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case.
There is now no more possibility of a gap of more than three years from the date on which section 4 notification is issued, otherwise it would be invalid as being beyond the prescribed period.
[916 G H, 917 A D] In the instant case, the notifications under section 4 was prior to the commeneement of the ordinance.
Therefore, the provision contained in sub section (2) of section 4 of the 1967 Amendment Act would be directly attracted.
The Government could, therefore, make a declaration within a period of two years from 20th January 1967.
The Government has in fact issued the impugned notification under section 6 on 10th October 1967 i.e. within the period prescribed by the Statute.
[917 E F] 907 3.When a period is prescuibed for exercise of power it manifests the legislative intention that the authority exercising the power within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power.
The very prescription of time inheres a belief that the nature and quantum of power and the manner in which it is to be exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within the time could not be negatived on the only ground of unreasonable delay.
[917H, 918 A B] Therefore, in this case, there was no unreasonable delay in exercise of power and hence the exercise was neither bad nor invalid.
[918B] 4.
Once the legislature stepped in and prescribed a sort of limitation within which power to issue notification under section 6 could be exercised, it was not necessary to go in search of a further fetter on the power of the Government by raising the implication.
[918F G] In this case, the High Court by implication read a fetter on the power of the Government to issue section 6 notification within a reasonable time after the issue of section 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time.
In raising this impliccation the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time.
Coupled with it two other factors were taken into consideration such as the effect of issuing a section 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquured; the right of the Government to unilaterally cancel section 4 notification in the event of fall in prices; history of legislation; and delayed issue of section 6 notification would deny adequate compensation to the owner.
But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue section 6 notification was to be exercised within the prescribed period of time.
At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision.
[918C F] 5.
In the case of death of a party to a proceeding who is joined in his capacity as Karta of an undivided Hnndu family, if the undivided Hindu family continues to be in existence the succeeding Karta can be substituted for the deceased Karta of the family and that would be sufficient compliance with Order XXII Rule 4 of C.P.C. [911D E] In the insant case an application made under Order XXII Rules 10 C.P.C. made after the prescribed period of limitation and in order to avoid seeking condonation of delay for setting aside abatement is not correct.
[911E] [The Court, however, overruled the objection on this ground since the L.rs.
have already been substituted].
|
Appeal No. 7 of 1964.
Appeal from the judgment and decree dated January 7, 1955 of the Madras High Court in Appeal Suit No. 371 of 1959.
609 R. Ganapathy Iyer and R. Thiagarajan, for appellants.
In the suit which is the subject matter of this appeal the plaintiffs alleged that Plaint 'A ' Schedule properties belonged to the second defendant and his son, the third defendant.
The second defendant sold the village for Rs. 28,000/ to one Swaminatha Sarma by a sale deed exhibit A dated December 12, 1912 which he executed for himself and as guardian of the third defendant who was then a minor.
The second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minor son 's half share should later on be set aside.
Accordingly the second defendant executed the Indemnity Bond exhibit
B in favour of Swaminatha Sarma.
The sons of Swaminatha Sarma sold Plaint 'A ' Schedule village to the father of the Plaintiffs for a sum of Rs. 53,000/ .
On the same date they assigned the Indemnity Bond exhibit
B to the father of the plaintiffs under an Assignment Deed exhibit
The third defendant after attaining majority filed O.S. No. 640 of 1923 in the Chief Court of Pudukottai for setting aside the sale deed exhibit
A in respect of his share and for partition of joint family properties.
The plaintiffs were impleaded as defendants 108 and 109 in that suit.
The suit was decreed in favour of the third defendant and the sale of his share was set aside on condition of his paying a sum of Rs. 7,000/ to defendants 108 and 109, and a preliminary decree for partition was also granted.
In further proceedings, the village was divided by metes and bounds and a final decree exhibit F was passed on October 6, 1936.
Meanwhile, a creditor of the third defendant obtained a money decree and in execution thereof, attached and brought to sale the third defendant 's half share in the 'A ' Schedule village.
In the auction sale Subbaiah Chettiar, the plaintiff 's brother in law purchased the property for a sum of Rs. 736/ subject to the liability for payment of Rs. 7,000/ under the decree in O.S. No. 640 of 1923.
Thereafter, the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the 'A ' Schedule village and are entitled to recover the same from the second defendant personally and out of the 'B ' Schedule properties.
The plaintiffs have claimed damages to the extent of half of the consideration for the sale deed exhibit
C. minus Rs. 7,000/ withdrawn by them.
The plaintiffs claimed a further sum of Rs. 500/as Court expenses making a total of Rs. 20,000.
The suit was contested on the ground that the Court sale in favour of Subbaiah Chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half share of the 'A ' Schedule village and consequently the plaintiffs did not sustain any loss.
The trial court held that Subbaiah Chettiar P.W. I was benamidar of 610 the plaintiffs who continued to remain in possession of the whole village.
The trial court was, however, of the opinion that though the plaintiffs had, in fact, purchased the third defendant 's halfshare in the Court sale, they were not bound to do so and they could claim damages on the assumption that third parties had purchased the same.
The trial court accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on 'B ' Schedule properties.
The second defendant took the matter in appeal to the Madras High Court which found that the only loss actually sustained by the plaintiffs was the sum of Rs. 736/ paid for the Court sale and the sum of Rs. 500/ spent for the defence of O.S. No. 640 of 1923.
The High Court accordingly modified the decree of the trial court and limited the quantum of damages to a sum of Rs. 1236/ and interest at 6 per cent p.a. from the date of the suit.
The question presented for determination in this appeal is what is the quantum of damages to which the plaintiffs are entitled for a breach of warranty of title under the Indemnity Bond exhibit
B dated December 19, 1912.
It was contended by Mr. Ganapathy Iyer on behalf of the appellants that in O.S. No. 640 of 1923, defendant No. 3 obtained a partition decree and a declaration that defendant No. 2 was not entitled to allenate his share in the 'A ' Schedule properties.
It was submitted that on account of this decree the appellants lost title to half share of 'A ' Schedule properties and accordingly the appellants were entitled to get back half the amount of consideration under the Indemnity Bond exhibit
The argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half share of the third defendant in Court auction, was not a relevant factor so far as the claim for damages was concerned.
It was suggested that the purchase in court auction was an independent transaction and the defendants ,could not take the benefit of that transaction.
We are unable to accept the contention of the appellants as correct.
In the present case it should be observed, in the first place, that the Indemnity Bond exhibit
B states that defendant No. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son Chidambaram is set aside and you are made to sustain any loss".
In the second place, it is important to notice that the sale deed exhibit
A executed by the second defendant in favour of Swaminatha Sarma was only voidable with regard to the share of the third defendant and the family properties.
The sale of the half share of defendant No. 3 was not void ab initio but it was only voidable if defendant No. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity.
In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute.
A breach of the 611 convenant can only occur on the disturbance of the vendee 's possession and so long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a convenant of the warranty of title.
The view that we have expressed is borne out by the decision of the Madras High Court in Subbaroya Reddiar vs Rajagopala Reddiar (1) in which A who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof.
C then brought a suit against A and B, got a decree and obtained possession thereof in execution.
In this state of facts it was held by Seshagiri Ayyar, J. that B 's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the Limitation Act.
At page 889 of the Report Seshagiri Ayyar, J. states: "The cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and (c) where though the title is known to be imperfect, the contract is in part carrried out by giving possession of the properties.
In the first class of cases, the starting point of limitation will be the date of the sale.
That is Mr. Justice Bakewell 's view in [Ramanatha Iyer vs Ozhapoor Pathiriseri Raman Namburdripad ; and I do not think Mr. Justice Miller dissents from it.
However, the present case is quite.
different.
In the second class of cases the cause of action can arise only when it is found that there is no good title.
The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified.
The cause of action will therefore arise when his right to continue in possession is disturbed.
The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat vs Hanuman Mandur (I Cal.
123 (P.C.) and in Bassu Kuar vs Dhum Singh (I 889) I.L.R. II All.
47 (P.C.) are authorities for this position.
" A similar view has been expressed by the Allahabad High Court in Muhammad Siddiq vs Muhammad Nuh (2) and the Bombay High Court in Gulabchand Daulatram vs Survajirao Ganpatrao.(3) In the present case it has been found by the High Court that P.W. 1, the auction purchaser was the brother in law of the plaintiffs (1) I.L.R. (2) I.L.R. 52 All. 604.
(3) A.I.R. 1950 Bom.
612 and that he was managing the estate of the plaintiffs and defending O.S. 640 of 1923 on their behalf It has also been found that P.W. I did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property.
The only loss sustained by the plaintiffs was a sum of Rs. 736/ paid at the Court sale and a sum of Rs. 5001 spent for the defence of O.S. No. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land.
Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1236/ which was the actual loss sustained by them and they are not entitled to any further amount.
For these reasons we hold that there is no merit in this appeal which is dismissed with costs.
Appeal dismissed.
| The second defendant sold property belonging to himself and his minor son the third defendant.
and also executed an indemnity bond in favour of the vendee agreeing to indemnify him for any loss that might be caused to him in case the sale of the third defendant 's half share should later on be set aside.
vendee sold the property to the plaintiffs and assigned the indemnity bond in their favour and the plaintiffs took possession of the property.
The third defendant, after attaining majority, sued for ,setting aside the sale in respect of his half share and for partition.
The plaintiffs contested the suit but the third defendant 's suit was decreed.
He, however, did not dispossess the plaintiffs.
Meanwhile, a creditor of .the third defendant obtained a money decree against him and in execution ,thereof attached and brought to sale the third defendant 's half share, and, ,the brother in Law of the plaintiffs purchased the property, but ,the plaintiffs continued in possession of the property.
The plaintiffs, thereafter, filed the suit for recovery of half the consideration paid by them, on the allegation that they sustained damage by the loss of one half of the property bought by them, and that they were entitled to recover damages from the second defendant.
The suit was contested on the ground that the court sale in favour of the brothers in law of the plaintiffs was benami for the plaintiffs, and that as the plaintiffs never lost ownership or possession of the halfshare, they did not sustain any loss.
.The trial court decreed the suit.
The High Court, on appeal, confined the decree to the actual loss sustained, namely, the amount for the court sale and the amount spent for the defence of the third defendant 's suit.
In appeal to the Court, on the question of the quantum of damages to which the plaintiffs were entitled, HELD : High Court was right in granting a decree to, the plaintiffs only for the sum which was the actual loss sustained by them.
The sale of the half share of the third defendant was not void ab initio but was only voidable.
In such a case the indemnity bond becomes enforceable only if the vendee is dispossesed from the properties, because, a breach of the covenant can only occur on the disturbance of the vendees possession.
SD long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the indemnity bond or for the breach of a convenant of the warranty of title.
[610 H 611 B] Subbaroya Reddiar vs Rajagopala Reddiar, Mad. 887 Muhammad Siddiq vs Muhammad Nuh, I.L.R. 52 All. 604 and Gulabchand Daulatram vs Suryaji Rao Ganpatrao, A.I.R. 1950 Bom.
401, approved.
|
iminal Appeal No. 90 of 1955.
On appeal by special leave from the Judgment and order dated the 17th June 1955 of the Travancore Cochin High Court at Ernakulam in Criminal Miscellaneous Petition No. 113 of 1955 (R.T. 'No. 4 of 1954 and Criminal Appeal No. 136 of 1954).
B. R. L. Iyengar, for the appellant.
Sardar Bahadur, for the respondent, 1023 1955.
December 1.
The appellant was convicted of murder in Sessions Case No. 20 of 1954 by the Sessions Judge of Trichur now in the State of Travancore Cochin and sentenced to death.
The sentence was in due course confirmed by the High Court and an application for leave to appeal against it to this Court was rejected.
The appellant filed mercy petitions to the Raj Pramukh of Travancore Cochin and to the President of India and both of them were rejected.
After all these attempts had failed, the Sessions Judge issued a warrant on the 29th March, 1955, fixing 6th April, 1955, for the execution of the prisoner.
Meanwhile, the Superintendent, Central Jail, Viyyur, where the condemned prisoner was lodged, informed the Sessions Judge by his letter dated the 1st April, 1955, that the prisoner had sent a mercy petition to the Maharaja of Cochin and requested for directions, since no orders had been received in respect of that petition.
it may be mentioned that the Sessions Division of Trichur is admittedly in the former State of Cochin.
It does not appear from the record whether this mercy petition to the Maharaja of Cochin was sent before or after the mercy petitions to the Raj Pramukh of Travancore Cochin and to the President were disposed of.
On receipt of the letter dated the 1st April, 1955, from the Superintendent, Central Jail, the Sessions Judge passed an order that the circumstances of the case demanded that the execution of the sentence should not take place on the date already fixed.
He accordingly issued an order staying execution of the sentence, previously ordered by his warrant dated the 29th March, 1955.
At this stage, the Public Pro secutor filed an application to the Sessions Judge on the 30th May, 1955, praying that the stay may be vacated and that fresh directions to execute the warrant may be issued.
On that application, the Public Prosecutor raised the question that a mercy 1024 petition to the Maharaja of Cochin, who as such, has lost sovereignty over the territory forming part of the previous Cochin State, and hence also lost his prerogative of pardon, was incompetent and could not stand in the way of the warrant being executed.
The learned Sessions Judge dealt with this question and agreed with the contention of the Public Prosecutor.
Accordingly, he vacated the stay and issued a fresh warrant for execution of the prisoner giving a week 's time to the prisoner to take the matter on appeal to the High Court, if so advised.
The prisoner filed an appeal to the High Court and the learned Judges of the High Court after consideration of the arguments on both sides agreed with the view taken by the learned Sessions Judge, and dismissed the appeal by its judgment dated the 17th June, 1955.
The present appeal is against this order of the High Court.
For the hearing of this appeal counsel was assigned to the appellant amicus curiae and all the relevant constitutional provisions have been fully and fairly placed before us.
Learned counsel appearing for the State has also been heard.
We are satisfied that the question that has been raised does not admit of substantial argument and that the view taken by both the Courts below is correct.
The entire basis for any argument on behalf of the appellant is the pre existing undoubted power of the Maharaja of Cochin to exercise the prerogative of pardon in respect of a sentence of death passed by the courts within his State.
That prerogative right has been 'affirmed in Article XXI of the Covenant dated the 29th May, 1949, entered into between the Rulers of Travancore and Cochin for the formation of the United State of Travancore and Cochin.
The article is in the following terms: "Notwithstanding anything contained in the preceding provisions of this Covenant, the Rulers of Travancore and Cochin shall continue to have, and exercise, their present powers of suspension, remission or commutation of death sentences in respect of any person who may have been, or is hereafter, sentenced 1025 to death for capital offence committed within the territories of Travancore or Cochin as the case may be ' It is only on the assumption that the power thus recognised in this article of the Covenant still survives in the Maharaja of Cochin, notwithstanding that he had lost his sovereignty over the territories which constituted the State of Cochin that the appellant has any statable case.
But this assumption is clearly unfounded having regard to the events which culminated in the accession and integration of the State of Travancore Cochin with the Dominion of India and thereafter its absorption into the Union of India, when the Constitution of India came into operation on the 26th January, 1950.
The relevant historical events may briefly be stated.
In August, 1947, the Rulers of the States of Travancore and Cochin executed separate instruments of accession to the Dominion of India on the same lines as most other Indian States did, at the time.
In May, 1949, the two States formed into a United State under a Covenant signed by each of the Maharajas, the provisions of which were guaranteed by the Government of India.
It is Article XXI of this Covenant which has already been referred to and which provides for the continuance of the prerogative of the Maharaja of Cochin for commutation of death sentences within his State.
Under this Covenant it was also provided that the then Ruler of Travancore should be the first Raj Pramukh of the United State of Travancore Cochin.
It was specifically provided by Article IX thereof as follows: "The Raj Pramukh shall, within, a fortnight of the appointed day, execute on behalf of the United State an Instrument of Accession in accordance with the provisions of section 6 of the Government of India Act, 1935, and in place of the Instruments of Accession of the Covenanting States".
By Article X(4) of the Covenant it was provided that "The Legislature of the United State shall, subject to the provisions of this Covenant, have full power 1026 to make laws for the United State, including provisions as to the Constitution of the United State, within the framework of this Covenant and the Constitution of India".
In pursuance of article IX, the Raj Pramukh of Travancore Cochin executed an Instrument of Accession dated the 14th July, 1949, which was accepted by the Governor General of India on the 15th August, 1949.
By article I of this Instrument it was declared that the 'United State acceded to the Dominion of India.
In pursuance of Article X(4) the legislative assembly of the State of Travancore Coobin resolved that the Constitution framed by the Constituent Assembly be adopted by the State.
In consequence thereof the Raj Pramukh of Travancore Cochin issued a proclamation dated the 24th November, 1949, which runs as follows: "Whereas with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act, 1935, which now governs the constitutional relationship between this State and the Dominion of India will stand repealed; and whereas ' in the best interests of the United State of Travancore and Cochin, which is closely linked with the rest of India by a community of interests in the economic, political and other fields, it is desirable that the constitutional relationship established between this State and the Dominion of India, should not only be continued as between this State and the contemplated Union of India further strengthened, and the Constitution of India as drafted by the Constituent Assembly of India, which includes duly appointed representatives of this State, provides a suitable basis for doing so; And whereas by virtue of the power vesting in it under the Covenant establishing this State, the Legislative Assembly of the State has resolved that the Constitution framed by the Constituent Assembly of India be adopted by this State; I now hereby declare and direct 1027 That the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the United State of Travancore and Cochin as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions: That the provisions of the said Constitution shall as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State".
For our present purposes, the last paragraph in this Proclamation is important.
On the coming into force of the Constitution of India on the 26th January, 1950, the State of Travancore Cochin became a part of the Union of India and was one of the Part B States as provided under article 1 clause (2) taken with Part B of the First Schedule.
The Constitution specifically provided for the prerogative of mercy in respect of sentences of death in articles 72, 161 and 238.
Article 72 provides for the power of the Presi dent, article 161 for the power of the Governor in a Part A State, and article 238 (1) taken with article 161 for the power of the Raj Pramukh of a Part B State.
In the light of these provisions the continuance of the prerogative of the Maharaja of Cochin relating to the execution of the death sentences with reference to the ex State of Cochin would be inconsistent with the new Constitution.
Such power, there fore, must be taken to have been superseded and abrogated as stated in the last para of the Proclamation above mentioned.
It would follow that article XXI of the Govenant of May, 1949, no longer survives.
Article 372(1) of the Constitution has also been relied upon on behalf of the appellant.
This runs as follows: "Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or re 130 1028 pealed or amended by a competent Legislature or other competent authority".
The argument based on this article is that the criminal law of the ex Cochin State continued to be in force in spite of the new Constitution having come into force and that the exercise of the prerogative by the Maharaja of Cochin in respect of the ex State of Cochin was an integral part of that law.
Apart from the question whether such prerogative which was incidental to his sovereignty, could survive after he lost his sovereignty over the territory, the difficulty in the way of this argument is twofold.
(1) The continuance is subject to the other provisions of the Constitution; and (2) The continuance is only until altered or repealed or amended by a competent Legislature.
As already pointed out, the continuance of the prerogative of the Maharaja of Cochin would be inconsistent with articles 72, 161 and 238 of the Constitution.
Further it is to be noticed that by the Code of Criminal Procedure (Amendment) Act, 1951, (Central Act I of 1951), passed by the Union Legislature, the Code of Criminal Procedure, 1898, has been made applicable to the whole of India by amending section I of the Code and by substitution therein for the words "whole of India except Part B States", the words "whole of India except the States of Jammu and Kashmir and Manipur".
The Code of Criminal Procedure and along with it sections 401, 402, and 402 A thereof, relating to commutation of sentences having thus been made specifically applicable to all Part B States by Central Act I of 1951, the prerogative under the old Cochin law must in any case be deemed to have been repealed or abrogated by competent legislative authority after the coming into force of the Constitution.
It was suggested in the Courts below that in so far as the Maharaja 's prero gative was concerned the Legislature was incompetent to abrogate it in view of article 362 of the Constitution.
But that article has no bearing.
It refers only to personal rights, privileges and dignities of the Rulers of Indian States.
It is obvious even from the Covenant, in which article XXI appears, that the 1029 power of pardon thereunder is different from "personal rights, privileges and dignities" which have been dealt with under articles XVI and XVII in the following terms.
The Ruler of each Covenanting State, as also the members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August,1947.
XVII.(1) The succession, according to law and custom to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles of the Ruler thereof is hereby guaranteed".
There is thus no substance in any of the arguments on which the case for the appellant can possibly be presented.
This appeal is accordingly dismissed.
| The respondent an assessee to wealth tax as an individual, in the assessment for the assessment year 1968 69, valued his property situate on plot No. 12, Block 39 Kautilya Marg, Chanakyapuri in his return of net wealth @ Rs. 4,52,000 as against the value of Rs. 6,00,000 shown by him in the previ ous years.
The property consisted of leasehold interest in the land together with a house built on it.
The land be longed to the President of India and it was leased by the President of India to one Vashesharan Devi on the terms and conditions set out in an agreement of lease dated 30th December, 1954 and the leasehold interest was acquired from Vashesharan Devi by the assessee.
Clause (13) of the lease deed provided that the assessee shall not be entitled to assign the leasehold interest in the land without obtain ing the prior approval in writing of the lessor and 50 per cent of the unearned increase in the value of the land at the time of assignment shall be claimable by the lessor and moreover, if the lessor so desires, he shall have pre emp tive right to purchase the property after deducting 50% of the unearned increase in the value of the land.
It further provided that "all such assignees and transferees . . shall be bound by all the covenants and conditions herein contained and be answerable in respect therefor".
In accordance with this clause, the Architects who are approved valuers estimated the value of the property @ Rs. 5,82,268 and from this ' figure, they deducted a sum of Rs. 1,30,000 representing 50 per cent of the unearned in crease in the value of the land, which belonged to the lessor and arrived at the value of Rs. 4,52,268/ .
The Wealth Tax Officer did not accept the estimate of the valuation and taking the annual rental value of Rs. 1,32,000/ fetched by the property as the basis, computed the net annual rent at Rs. 82,956/ and arrived at the figure of Rs. 8,29,560/ as the value of the property by applying the multiple of ten to the net annual rental value of Rs. 82,956/ .
The claim of the assessee to deduct from the value of the property 50 per cent of the unearned in crease in the value of the land was rejected on the ground that this claim was based "merely on hypothetical presump tions".
The value of the property was, however, reduced from Rs. 8,29,560/ to Rs. 6,00,000/ since that was the figure accepted by the Revenue in the past assessment years.
The appeals before the Appellate Assistant Commissioner and the Tribunal failed.
On a reference, the High Court took the view that the liability to pay 50 per cent of the un earned increase in the value of the land to the lessor at the time of the assignment was a disadvantage attached to the leasehold interest in the land and hence its value was liable to be deducted from the value of the property in arriving at the net wealth.
Dismissing the appeals, the Court, HELD: (1) In determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth tax the price which the leasehold interest would fetch in the open market, were it not encumbered or affected by the burden of the restriction contained in clause (13) of the leasedeed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date.
[427 C D] (2) The only way in which in a. case of this kind the valuation section 7(1) of the Wealth Tax Act can be done is by taking the market value of the leasehold interest as if it were unencumbered or unaffected by the burden or restriction contained in clause (13) and deducting from it, 50 per cent of the unearned 419 increase in the value of the land on the basis of the hypo thetical sale as representing the value of such burden or restriction.
[425 A C] (3) The true test for determining the matter of payment made by an assessee out of an amount received by him wheth er it is an application of part of the amount which belongs to him or it is payment of an amount which is diverted before it reaches the assessee so that at the time of re ceipt, it belongs to the 'payee and not to the assessee.
In the present case 50 per cent of the unearned increase in the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price.
[425 E F] C.I.T.v.
Sitaldas Tirathdas SC; applied.
Pandit Lakshmi Kant Jha vs Commissioner of Wealth Tax, Bihar , explained.
(4) The burden or limitation attaching to the leasehold interest must be taken into account in arriving at the value of the leasehold interest and it can not be value ignoring the burden or limitation The covnaent in clause (13) is clearly a covenant running with the land and it would bind whosoever is the holder of the leasehold interest for the time being.
It is a constituent part of the rights and liabilities and advantages and disadvantages which go to make up the leasehold interest and it is an incident which is in the nature of burden, on the leasehold interest.
Plainly and indisputably, it has the affect of depressing the value which the leasehold interest would fetch if it were free from this burden or disadvantage.
When the lease hold interest in the land has to be valued this burden or disadvantage attaching to the leasehold interest must be duly discounted in estimated the price which the leasehold interest would fetch.
To value the leasehold interest on the basis that this burden or disadvantage were to be ignored would be to value an asset different in content and quality from that actually owned by the assessee.
[424 B, 423 D H] Corrie vs MecDermott , quoted with approval.
(5) When under the lease deed the lessor has a bundle of rights which includes "something" more than the reversion, that "something" would necessarily be subtracted from the interest of the lessee and to that extent, the interest of the lessee would be the leasehold interest minus that "something".
What goes to augment the interest of the lessor would correspondingly reduce the interest of the lessee and it cannot be taxed as the wealth of both the lessor and the lessee.
It would be includible in the net wealth of the lessor and hence it cannot at the same time form part of the wealth of the lessee and must be subtracted in determining the nature and extent of the interest of the lessee.
[424 E F]
|
Criminal Appeal No. 750 of 1989.
From the Judgment and Order dated 11.4.1988 of the Gujarat High Court in Spl.
Application No. 733 of 1987.
Kapil Sibal, Additional Solicitor General, A. Subba Rao and P. Parmeshwaran for the Appellants.
Vineet Kumar and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This criminal appeal preferred by the appellants, namely, Union of India and the Additional Secretary to the Government of India is against the judgment of the High Court of Gujarat at Ahmedabad in Special Crimi nal Application No. 733 of 1987 dated 11.4.
1988 quashing the order of detention dated 19.6.
1987 passed by the second appellant in exercise of the powers under subsection (1) of Section 3 of the Conservation of Foreign Exchange and Pre vention of Smuggling Activities Act, 1974 with a view to preventing the first respondent, Vasanbharthi Jivanbharthi from engaging in transporting smuggled goods.
It seems that the first respondent (detenu) has challenged the detention on numerous grounds, one of which being that none of the members of his household had been informed of the passing of the impugned order of detention and of the fact that the detenu had been taken into custody and also of the place where the detenu was detained.
This ground was only subse quently added by an amendment with the permission of the Court.
The High Court holding that the detenu 's relatives were not informed about the detention order or about the place where the detenu was detained in compliance with the observation by this Court in A.K. Roy vs Union of India, ; , concluded that the order has been vitiated by such non compliance.
Further, the High Court has rejected the plea of 744 the appellants that the relatives of the detenu knew about the detention order as well the place of detention and stated as follows: "Hence if the relatives of the detenu have not been informed and even if from the record, it is found that the relatives had come to know about it from some source, the order of detention would most certainly be invalidated.
" In the result, the order of detention was quashed and the detenu was directed to be set as liberty.
Mr. Kapil Sibal, the learned Additional Solicitor Gener al has assailed the finding of the High Court stating that the respondent No. 1 (detenu) was already an undertrial prisoner and his relatives inclusive of his maternal uncle had visited him at the jail within two days and, therefore, that the non communication of a written intimation about the fact of passing of the order of detention and of the place of detention in pursuance of the detention order have no significance, and as such the observation made in A.K. Roy 's case can hardly by availed of by the detenu and the order cannot said to be invalidated on that ground.
This plea is taken specifically in paragraph 21 and in Grounds I & II in paragraph 23 of the Special Leave Petition.
Besides the above stand taken in the SLP, the appellants have reiterat ed.
the same in paragraph 9 of the application for ex parte stay of the Order of the High Court, the relevant portion of which reads thus: "The affidavit in opposition was filed on behalf of the Union of India that the detenu was already under trial prisoner and his relatives in fact knew that and also that the maternal uncle had immediately, within two days, visited him at the jail.
Therefore.
it was not necessary to inform the relatives of his detention and place of detention, as contemplated in the decision of the Supreme Court reported in ; K. Roy 's case).
" No counter is filed by the first respondent (detenu) in opposition to the above plea of the appellants.
In the above background, we shall now examine whether the High Court is justified in setting aside the Order for the reasons mentioned supra on the basis of the decision in A.K. Roy 's case The relevant portion of the observation in A.K. Roy 's case reads thus: 745 "In order that the procedure attendent upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, we consider it imper ative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody.
Intimation must also be given as to the place of detention, including the place where the detenu is trans ferred from time to time.
The object and purpose of the above observation, in our view, seem to be that the family members of the detenu should not be kept in darkness by withholding the informa tion about the passing of the order of detention and the place of detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meeting their relations and getting any help or assistance.
Coming to the present case, we are satisfied that the family members had sufficient knowledge about the detention of the detenu by virtue of the mittimus issued as well the place of detention.
Therefore, no legitimate grievance can be made that there is contravention to the observation in A.K. Roy 's case.
Hence for the reasons mentioned above, we are unable to agree with the view taken by the High Court and accordingly we set aside the impugned Judgment and remit the matter to the High Court of Gujarat for consideration of the other contentions raised by the detenu challenging the order of detention and to dispose of the case on its merit.
We hope that the High Court will give priority to this matter and dispose of the same expeditiously.
Taking into consideration of the fact that the detenu is now enlarged consequent upon the judgment of the High Court which we have set aside, the detenu shall not be taken into custody to serve the unexpired period of detention till the matter is finally disposed of by the High Court.
The Criminal Appeal is disposed of accordingly.
P.S.S. Appeal allowed.
| A case was registered against the respondent, an officer of the Indian Police Service, under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947, on 8.3.1984 but the investigation report was submitted to the Government on 17.9.1987.
In November, 1987, the respond ent filed a criminal petition for quashing further proceed ings pursuant to the registration of the First Information Report contending that there had been inordinate delay in the investigation and that the prosecution had not filed the report as contemplated under Section 173 Cr.
P.C. till he filed the petition.
The appellant contended that the delay was occasioned on account of dilatory tactics adopted by the respondent and that the case was a complicated and time consuming one.
The High Court quashed the First Information Report and observed that wherever there was an inordinate delay on the part of the investigating agency in completing investigation, the case merited quashing of the First Infor mation Report even.
The State preferred an appeal in this Court contending that the High Court 's observation was too wide a proposition and it would be detrimental to the prosecution in future under all circumstances, regardless of reasons therefor.
Dismissing the appeal, this Court, HELD: 1.1 No general and wide proposition of law can be formulated that wherever there is inordinate delay on the part of the 747 investigating agency in completing the investigation, such delay, ipso facto, would provide ground for quashing the First Information Report or the proceedings arising there from.
[750H, 751A] 1.2 A lethargic and lackadaisical manner of investiga tion over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis.
Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence and inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation.
However, there are offences of grave magnitude which would necessari ly involve considerable time for unearthing the crimes and bringing the culprits to book.
Therefore, it is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investiga tion in a criminal case should be completed.
[750B F] 1.3 The determination of the question whether the ac cused has been deprived of a fair trial on account of de layed or protracted investigation would also, therefore, depend on various factors including whether such delay was unreasonably long or caused deliberately or intentionally to hamper the defence of the accused or whether it was due to the dilatory tactics adopted by the accused.
The Court, in addition, has to consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused.
The assessment of these factors necessarily vary from case to case.
[750G H] Raghubir Singh vs State of Bihar, [1986] 4 SCC 481, relied on.
Bell vs Director of Public Prosecutions of Jamaica and another, [1985] 2 All England Law Reports 585, referred to.
The Power of the Courts to stay a Criminal Prosecution, ' , referred to.
In the instant case, the respondent was placed under suspension pending enquiry but was reinstated on the basis of enquiry report and further action was stopped.
However, by a subsequent order dated 5th July, 1985 the earlier order was cancelled and a show cause notice for 748 his compulsory reitrement was issued.
The Central Adminis trative Tribunal held that the order dated 5th July, 1985 was illegal and beyond the powers of State Government.
This Court dismissed State 's Special Leave Petition.
In the meantime, the respondent was allowed by the appellant to retire peacefully from service on attaining the age of superannuation and the First Information Report and conse quent proceedings were quashed by the High Court.
In these circumstances, this is not a fit case for interference.
[751D, E, G, 752A, C E]
|
Appeal No. 516 of 1959.
Appeal from the judgment and order dated September 3, 1957, of the Bombay High Court in Income tax Reference No. 49 of 1957.
J.M. Thakar, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants.
A. N. Kripal and D. Gupta, for the respondent.
December 12.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The three appellants appeal against the judgment and order of the High Court of Bombay answering, in the affirmative, the following question: "Whether the share income of the assessees from the unregistered firm (which is separately taxed), namely, Rs. 26,110 can be set off against their share loss from registered firms, namely, Rs. 13,167?" The facts are as follows: Two of the appellants are 176 brothers, and the third appellant is the widow of a third brother, who died during the pendency of the appeal after certificate had been granted by the High Court.
The three brothers were partners in two registered firms and one other firm, which was unregistered.
The assessment years for the purposes of the appeal are 1948 49 and 1949 50.
For the assessment year 1948 49, the income of the three brothers was the same, and it was as follows: From registered firms .
Rs. 11,902 loss 1,265 loss Total loss Rs. 13,167 Income from the unregistered firm Rs. 26,110 profit Other income Rs. 262 The income of the unregistered firm was taxed on the firm and not in the hands of the partners, as was possible under the provisions of cl.
(b) of sub section
(5) of section 23.
In assessing the amount of Rs. 262, the Income tax Officer first determined the total income of each of the appellants by setting off their share of the profits of the unregistered firm against their share of the loss of the registered firms.
The appellants contended that, inasmuch as tax had already been assessed on the unregistered firm, this could not be done, and that as there was loss in the business of the registered firms, no tax was demandable on Rs. 262.
They also contended that they were entitled to carry forward the, loss amounting to Rs. 12,905 to the succeeding year under section 24(2) of the Income tax Act.
These contentions were not accepted by the Income tax Officer, to whose order it is not necessary to refer in detail.
The assessment for the assessment year 1949 50 was also done on similar lines.
The appeal to the Appellate Assistant Commissioner was unsuccessful, and six appeals were taken to the Tribunal by the three appellants three for each assessment year.
These appeals were disposed of by a common order.
The Tribunal held, relying upon the second proviso to section 24(1), that just as loss in an unregistered firm could not be set off against profits 177 from a registered firm under that proviso, the profits in an unregistered firm could not be set off against the loss from a registered firm.
It relied upon a decision of the Madras High Court in Commissioner of Income tax vs Ratanshi Bhavanji (1), which it purported to follow in preference to a decision of the Punjab High Court in Banka Mal Niranjandas vs Commissioner of Income tax (2).
The same reasoning was applied to the assessment year 1949 50, and in the result, all the six appeals were allowed.
The order of the Tribunal involved, in addition to the point set out above, certain other questions, which were asked by the assessees to be referred to the High Court for decision under section 66(1).
The Commissioner also asked for a reference in respect of the decision, substance whereof has been set out above.
The Tribunal referred two questions at the instance of the assessees and one question, which we have already quoted, at the instance of the Commissioner.
In the High Court, the assessees abandoned the two questions, and the High Court accordingly expressed its opinion in the judgment and order under appeal, on the remaining question.
The High Court differed from the decision of the Tribunal, and held that the profit from the unregistered firm could be set off against the losses from the registered firms to find out the rate applicable to Rs. 262, which was other income of the assessees.
The High Court also held that the assessees could not carry forward the loss of the registered firms to the following year, because such loss must be deemed to have been absorbed in the profits of the unregistered firm.
It, however, certified the case as fit for appeal to this Court, and the present appeal has been filed.
In our opinion, the High Court correctly answered the question referred to it, but was in error in holding that the losses of the registered firms could not be carried forward, because they must be deemed to have been absorbed in the profits of the unregistered firm.
Inasmuch as we substantially agree with the High (1) (2) 23 178 Court on the first part of the case, it is not necessary to examine closely or in detail the reasons on which the decision of the High Court proceeds.
In our opinion, the matter is simple, and can be stated within a narrow compass.
Under section 3 of the Income tax Act, income tax is chargeable for an assessment year at rate or rates prescribed by an annual Act in respect of the total income of the previous year.
Section 14 (2)(a), before its amendment in 1956, provided that the tax shall not be payable by an assessee, if a partner of an unregistered firm in respect of any portion of his share in the profits and gains of the firm, computed in the manner laid down in cl.
(b) of sub section
(1) of section 16 on which the tax had already been paid by the firm.
The section thus gave immunity from tax to the share of the assessee as a partner in an unregistered firm in respect of the share of profits received by him from the unregistered firm and on which the unregistered firm had already been taxed.
Section 16(1)(a), however, provided that in computing the total income of an assessee, any sum exempted under sub section
(2) of section 14 shall be included.
The combined effect of those two sections was stated by the High Court to be, "that although the share of a partner in the profits of an unregistered firm is exempt from tax, it is included in his total income for the purpose of rate only.
" We agree that this is a correct analysis.
The Tribunal relied upon the second proviso to section 24(1), which read as follows: "Provided further that where the assessee is an unregistered firm which has not been assessed under the provisions of clause (b) of sub section (5) of section 23 . any such loss shall be set off only against the income, profits and gains of the firm and not against the income, profits and gains of any of the partners of the said firm; and where the assessee is a registered firm, any loss which cannot be set off against other income, profits and gains of the firm shall be apportioned between the partners of the firm and they alone shall be entitled to have the amount of the loss set off under this section.
" 179 The Tribunal came to the conclusion that, ". just as a partner in an unregistered firm which has suffered loss will not be allowed to set off his share loss in the unregistered firm against his income from any other source, so it stands to reason that his loss from other sources cannot also be set off against his share income from an unregistered firm.
" The decision of the Tribunal was not based upon any specific provision of the Income tax Act but upon a parity of reasoning, by which a specific provision about loss was held to apply the other way round also.
The High Court correctly pointed out that all that section 14, subs.
(2), did was to save the profits of an unregistered firm from liability to tax in the hands of the partners.
It did not affect the computation of the total income to determine the rate applicable under section 3, in the light of section 16(1)(a).
Indeed, section 16(1)(a) clearly provided that any sum exempt under section 14(2) was to be included in computing the total income of an assessee, and in view of this specific provision, the converse of the second proviso to section 24(1) which we have quoted above, hardly applied.
To this extent, the order of the Tribunal was incorrect.
The error was pointed out by the High Court, and the question thus raised was properly decided.
We see no reason to differ from the High Court on this part of the case.
The question, however, arose before the High Court as to whether in view of this decision, the assessees could carry forward loss from the registered firms in the subsequent year or years.
The High Court came to the conclusion that they could not carry forward the loss.
Indeed, the Tribunal had earlier stated that if the profits from the unregistered firm were to be set off against the losses of the registered firms, such losses would not be carried forward to the following year, and that would be contrary to section 24.
The High Court rejected this ground in dealing with the question as to the rate applicable to the other income, and pointed out and in our view, rightly, that under sections 14(2) and 16(1)(a) the profits and losses had to be set off against each other, to find out the total income.
180 The High Court, however, held that once losses were set off against profits, they were to that extent absorbed, and that there was nothing to carry forward.
This conclusion does not follow.
Section 24 provides for a different situation altogether; it provides for the carrying forward of a loss in business to the subsequent year or years till the loss is absorbed in profits, or till it cannot be carried forward any further.
That has little to do with the manner in which the total income of an assessee has to be determined for the purpose of finding out the rate applicable to his income, taxable in the year of assessment.
To read the provisions of sections 14(2) and 16(1)(a) in this extended manner would be to nullify in certain cases section 24 altogether.
Neither is such an intention expressed; nor can it be implied.
In our opinion, though the decision of the High Court on the main issue and on one aspect of the question posed for its opinion was correct, it was in error in deciding that the losses of ,the registered firms could not be carried forward because they had been absorbed by the profits of the unregistered firm.
To this extent, the judgment and order of the High Court will stand modified.
Subject to that modification, the appeal will be dismissed.
In the circumstances of the case, there will be no order as to costs.
Appeal dismissed with modification.
| During the course of conciliation proceedings in respect of a dispute between the appellant company and its workmen a settlement was arrived at between the parties on February 18, 1954.
Despite the settlement some of the workmen went on strike on February 23, 1954, but eventually it was called off on March 19 and 20, 1954.
On the ground that the strike was illegal because it took place during the currency of a settlement, the appellant took steps to serve charge sheets on the workmen who had joined the strike and, after a managerial inquiry, dismissed sixty of them.
There were conciliation proceedings in respect of the dismissal of the workmen before the Labour Commissioner and an agreement was arrived at between the appellant and the union on September 2, 1954.
The Labour Commissioner was apprised of this settlement, but since it was found that the union was opposing reinstatement of certain workmen, he proposed to hold further conciliation proceedings.
The appellant was against holding further conciliation steps and, therefore, the Labour Commissioner reported the matter to the Government under section 12(4) of the .
A reference was accordingly made and the Tribunal gave the award under which all the dismissed workmen were to be reinstated on the ground that they had not been shown to have taken part in violence and there were extenuating circumstances in their case inasmuch as they were misled to join the strike in order to oust the old office bearers of the union so that others might be elected in their place, and that though a much larger number of workmen had taken part in the illegal strike and the union took up the case, only these sixty were eventually dismissed while the rest were reinstated.
The appellant objected to the award on the grounds (1) that as a settlement had been arrived at during the course of conciliation proceedings on September 2, 1954, which specifically dealt with the case of these sixty workmen, the reference was incompetent in view of section 18 of that Act, (2) the reference was also incompetent because what was referred was riot an industrial dispute but a dispute between the employer and its individual workmen, and (3) the Tribunal 's order of reinstatement was in any case unjustified.
309 Held:. .(1) under sections 12 and 18 of the , a settlement which is binding under section 18 on the ground that it was arrived at in the course of conciliation proceedings is a settlement arrived at with the assistance and concurrence of the conciliation officer, and that a settlement which is not binding under section 18 will not be a bar to a reference by the Government.
In the present case the agreement of September 2, 1954, did not have the approval of the conciliation officer and, consequently, the reference based on 'the report of the conciliation officer under section 12 of the Act was competent.
(2). that the reference was not bad on the ground that an individual dispute had been referred to the Tribunal for adjudication, because the dispute in the present case was originally sponsored by the union and related to the dismissal of a much larger number of workmen.
(3). that where the finding of the Tribunal was that there was misconduct which merited dismissal under the Standing Orders and that the managerial inquiry was proper, the Tribunal was not justified in interfering with the action of the management unless it found unreasonable discrimination in the matter of taking back employees, or unfair labour practice or victimisation against the employees.
Indian Iron and Steel Co. Ltd. and Another vs Their Workmen, ; , followed.
I. G. N. and Railway Co. Ltd. vs Their Workmen, ; , distinguished.
|
Civil Appeal No. 1331 of 1978.
From the Judgment and order dated 31.3.1977 of the Allahabad High Court in C.M. Writ No. 72 of 1777.
Arvind Kumar, K.B. Chatterjee, R.K. Mathur and Mrs. Laxmi Arvind for the Appellant.
Prithvi Raj and Ashok K. Srivastava for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by special leave arises out of and is directed against the dismissal of Civil Misc.
Writ No. 72/77 filed by the appellant by the High Court of Allahabad by judgment and order dated 31.3.1977.
The facts are not in controversy and the only question for consideration in the appeal is whether the High Court was in error in affirming the view taken by the Prescribed Authority and the Appellate Authority (the District Judge, Mathura) that an extent of 12.35 acres, which the appellant claimed to have transferred to his daughter, by means of a registered gift deed, has also to be reckoned in computing the total extent of land in the appellant 's holding for determination of the ceiling area in his holding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act (hereinafter the Act) 1960.
In response to a notice issued under Section 10(2) of the Act, the appellant contended that he was not in possession of 23.61 acres of surplus agricultural land as set out in the notice and that the authorities had failed to notice that he had transferred by means of a registered deed of gift dated 7.1.1972 an extent of 12.35 acres of land to his invalid daughter Pushpa Devi who remained unmarried inspite of being 30 years old because of her being born a crippled child and, secondly, the lands bearing khasra No. 226, 227 and 229 were part of Abadi and, therefore, stood excluded from the operation of the Ceiling Act.
Both the contentions did not find favour with the Prescribed Authority as well as the Appellate Authority.
In so far as the first contention is concerned, with which alone we are concerned in this appeal, both the authorities held that the appellant had failed to establish that the transfer of land in favour of his daughter was made in good faith and was not intended for the immediate or deferred benefit 543 of the appellant and other members of his family and furthermore the transfer appeared to be a device to defeat the provisions of the Act The appellant filed Civil Misc.
Writ No. 72/77 in the High Court for having the order of the Prescribed Authority as affirmed by the Appellate Authority quashed but failed to meet with success and hence the present appeal by special leave.
The learned counsel for the appellant assailed the finding rendered against the appellant as regards the purported gift of land to his daughter, on the following grounds: (1) Though the registered deed of gift had been executed after the prescribed date viz. 21.1.71, the transfer was in pursuance of an earlier family arrangement to provide maintenance for the invalid daughter and, therefore, the transfer falls outside the purview of Section 5(6) of the Act.
(2) Alternatively, if the transfer attracted the operation of Section 5(6) and did not constitute an excepted transfer under Clause (b) of the proviso to Section 5(6), then Section 5(6) should be held ultra vires Article 31 A of the Constitution.
(3) The Act is violative of Article 14 of the Constitution in that it discriminates between major unmarried daughters and minor unmarried daughters by excluding the former from the definition of 'family ' under Section 3(7) of the Act Before examining the merits of the above said contentions, it has to be stated that the Act as well as the amending Acts viz. Uttar Pradesh Act 18 of 1973 and Uttar Pradesh Act 2 of 1975 have been included in the Ninth Schedule and therefore Section 5(6) is not open to attack on the ground of constitutional infirmity by reason of the immunity conferred by Article 31 B. Bearing this position in mind, we may refer to the definition of Section 3(7) and Section 5(6) of the Act The relevant provisions read, as under: "Section 3(7): 'family ' in relation to a tenure holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters)". "Section 5(6): In determining the ceiling area appli 544 cable to a tenure holder, any transfer of land made after the twenty fourth day of January, 1971 which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this sub section shall apply to (a) a transfer in favour of any person (including Government) referred to in sub section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family.
From the definition of family in Section 3(7) it may be seen that a major daughter of a tenure holder, even if she is unmarried, is undoubtedly not treated as a member of the family.
As regards Section 5(6) the legislature has provided that any extent of land transferred after 24.1.1971 has also to be included in the total extent of holding of the tenure holder for the purposes of calculation of the ceiling area unless the transfer falls within the category of excepted transfers under clause (a) or (b) of the proviso.
Taking up the first contention of the appellant s counsel, we find no merit in it because the finding of the Prescribed Authority and the Appellate Authority, which has found acceptance with the High Court, is a finding of fact and as such its correctness cannot be canvassed in an appeal under Article 136 of the Constitution Even otherwise we do not see any error in the impugned finding because the appellant had failed to prove that there was an earlier family arrangement and if there was one, to explain why he had delayed the execution of the deed of gift till after the Act came into force, especially when the purported gift would only result in himself and his sons being in possession of the land and enjoying the income therefrom.
That apart, there is no scope for treating the gift as falling outside the purview of Section 5(6) because the sub section mandates "any transfer of land made after the twenty forth day of January, 1971", to be ignored and not to be taken into account unless the transfer stands protected by proviso (a) or (b) of the sub section.
545 As regards the second contention that Section 5(6) is violative of Article 31 A of the Constitution, we may straightaway observe that the question is no longer res integra.
In D. G. Mahajan vs Maharashtra, ; at pages 810 to 812 and at page 824 this Court has held that "that Section 5, sub clause 6 of the amended U.P. Imposition of Ceiling on Land Holdings Act, even if it contravenes the seconds proviso to clause 1 of Article 31 A, a matter on which we do not wish to express any opinion since it is unnecessary to do so, is validated under Article 31 B" and "that Section 5 sub clause (6) of the U P Imposition of Ceiling on Land Holdings Act is valid and its constitu tionality cannot be assailed by reason of the immunity enacted in Article 31 B." In a later case Ambika Prasad vs U.P. State, ; the validity of the Act was declared and inter alia it was held that "the provision in Section 5(6) when read in the light of the proviso is fair and valid.
" There is, therefore no scope for the apellant to raise any contention that Section 5(6) is ultra vires Article 31 A. So far as the last contention is concerned, even this question is concluded by the pronouncement in Ambika Prasad 's case (supra) and does not, therefore, survive for consideration.
This Court while observing that though "the anti female kink is patent in that the very definition of family discloses prejudice against the weaker sex by excluding adult daughter without providing for any addition to the ceiling on their account," has nevertheless held that the provisions do not discriminate between man and woman qua man and woman but merely organise a scheme where life 's realism is legislatively pragmatised The relevant portion of the judgment reads as under: "Section 5(3) does not confer any property on an adult son nor withdraw any property from an adult daughter.
That provision shows a concession to a tenure holder who has propertyless adult sons by allowing him to keep two more hectares per such son.
The propertyless son gets no right to a cent of land on this scope but the father is permitted to keep some more of his own for feeding this extra mouth.
If an unmarried daughter has her own land, this legislation does not deprive her any more than a similarly situated unmarried son.
Both are regarded as tenure holders.
The singular grievance of a chronic spinster vis a vis a similar bachelor may be that the father is allowed by section 5(3) to hold an extra two hectares only if the unmarried major is a son.
546 Neither the daughter nor the son gets any land in consequence and a normal parent will look after an unmarried daughter with an equal eye.
Legal injury can arise only if the daughter 's property is taken way while the son 's is retained or the daughter gets no share while the son gets one.
The legislation has not done either.
So, no tangible discrimination can be spun out.
May be, the legislature could have allowed the tenure holder to keep another two hectares of his on the basis of the existence of an unmarried adult daughter.
It may have grounds rooted in rural realities to do so.
The Court may sympathise but cannot dictate that the land holder may keep more land because he has adult unmarried daughter.
That would be judicial legislation beyond permissible process.
" The above pronouncement of the Constitution Bench concludes the issue regarding the vice of discrimination.
For the reasons aforesaid, all the contentions of the apellant fail and the appeal will stand dismissed.
The parties are, however, directed to pay and bear their respective costs.
N.V.K. Appeal dismissed.
| The 2nd petitioner, a member of the Delhi Higher Judicial Service and working as an Additional District Judge in a writ petition to this Court, contended that he was directly recruited to service as a Scheduled Castes candidate and that the High Court had acted in an unreasonable manner in refusing to grant selection grade to him on more than one occasion.
Disposing of the Writ Petition, ^ HELD: 1.
Where promotion to higher grade or post is made on the criteria of merit, many a time a junior officer is bound to supersede his senior.
In the process of assessment of comparative merit, supersession of a senior officer may result.
This cannot be helped.[614G H] In the instant case, the petitioner was considered on merit along with others, and as the High Court found officers junior to him suitable for grant of selection grade the petitioner could not be selected.
This Court finds no illegality in the High Court 's order.
[615A] 2.
Integrity of a judicial officer is a great asset to administration of justice.
It must be given due weight.
[615C] 3.
The petitioner in the instant case, comes from a weaker section of the society and he has been found to be an honest officer.
This fact needs consideration.
The High Court should consider the petitioner 's 614 case sympathetically for the grant of selection grade at the next selection.
[615D]
|
eal No. II of 1949.
Appeal by special leave from the judgment of the Allaha bad High Court (Harish Chandra J.) dated 11th November, 1949, in Criminal Miscellaneous Case No. 960 of 1949.
The facts of the case and the arguments of counsel are set out fully in the judgment.
Alladi Krishnaswami Iyer (Alladi Kuppuswami with him) for the appellant.
M.C. Setalvad, Attorney General for India (V. N. Sethi, with him) for the respondent.
May 5.
The judgment of Kania C.J. and Patanjali Sastri J. was delivered by PATANJALI SASTRI J. This is an appeal by special leave from an order of the High Court at Allahabad dismiss ing an application under sections 491 and 561 A of the Code of Criminal Procedure for release of the appellant who was arrested in pursuance of an extradition warrant issued by the Regional Commissioner of the United State of Rajasthan who is the principal officer representing the Crown in the territory of that State.
The appellant who is a member of the Uttar Pradesh Civil Service was appointed in 1948 to serve what was then known as the Tonk State in various capacities, and during such service he is alleged to have helped the Nawab in obtaining the sanction of the Government of India to the payment of Rs. 14 lakhs to the Nawab out of the State Treasury for the discharge of his debts, and to have induced the Nawab by threats and deception to pay the appellant, in return for such help, sums totalling Rs. 3 lakhs on various dates.
On these allegations the appellant is charged with having committed offences under section 383 (Extortion) and 575 section 420 (Cheating) of the Indian Penal Code which are extraditable offences under the (hereinafter referred to as "the Act").
The warrant was issued under section 7 of the Act to the District Magis trate, Nainital, where the appellant was residing after reverting to the service of the Uttar Pradesh Government, to arrest and deliver him up to the District Magistrate of Tonk.
The appellant 's case is that the sum of Rs. 3 lakhs was paid to him by the Nawab to be kept in safe deposit in a bank for the Nawab 's use in Delhi, that no offence was committed and that the amount was returned when demanded by the authorities of the Tonk State.
The warrant was issued mala fide on account of enmity.
Various technical objections were also raised to the validity of the warrant and to the jurisdiction of the Magistrate at Nainital to take cogni sance of the matter and arrest the appellant.
The High Court overruled all the objections and dismissed the application for the release of the appellant.
On behalf of the appellant Mr. Alladi Krishnaswami Aiyar contended that section 7 of the Act under which the warrant purports to have been issued had no application to the case and that the entire proceedings before the Magistrate were illegal and without jurisdiction and should be quashed.
Learned counsel, relying on section 18 of the Act which provides that nothing in Chapter III (which contains section 7) shall "derogate from the provisions of any treaty for the extradition of offenders," submitted that the treaty entered into between the British Government and the Tonk State on the 28th January, 1869, although declared by section 7 of the Indian Independence Act, 1947, to have lapsed as from the 15th August, 1947, was continued in force by the "Stand still Agreement" entered into on the 8th August, 1947, that that treaty exclusively governed all matters relating to extradition between the two States, and that, inasmuch as it did not cover the offences now charged against the appel lant, no extradition of the appellant could be demanded or ordered.
576 The Attorney General appearing for the Government ad vanced three lines of argument in answer to that contention.
In the first place, the standstill agreement entered into with the various Indian States were purely temporary ar rangements designed to maintain the status quo ante in respect of certain administrative matters of common concern pending the accession of those States to the Dominion of India, and they were superseded by the Instruments of Acces sion executed by the Rulers of those States.
Tonk having acceded to the Dominion on the 16th August, 1947, the stand still agreement relied on by the appellant must be taken to have lapsed as from that date.
Secondly, the treaty was no longer subsisting and its execution became impossible, as the Tonk State ceased to exist politically and such sover eignty as it possessed was extinguished, when it covenanted with certain other States, with the concurrence of the Indian Government "to unite and integrate their territories in one State, with a common executive, legislature and judiciary, by the name of the United State of Rajasthan," the last of such covenants, which superseded the earlier ones, having been entered into on the 30th March, 1949.
Lastly, even assuming that the treaty was still in operation as a binding executory contract, its provisions were in no way derogated from by the application of section 7 of the Act to the present case, and the extradition warrant issued under that section and the arrest made in pursuance thereof were legal and valid and could not be called in question under section 491 of the Criminal Procedure Code.
As we are clearly of opinion that the appellant 's contention must fail on this last ground, we consider it unnecessary to pronounce on the other points raised by the AttorneyGeneral especially as the issues involved are not purely legal but partake also of a political character, and we have not had the views of the Governments concerned on those points.
It was not disputed before us that the present case would fall within section 7 of the Act, all the requirements thereof being satisfied, if only the applicability of 577 the section was not excluded, under section 18, by reason of the Extradition Treaty of 1869, assuming that it still subsists.
The question accordingly arises whether extradi tion under section 7 for an offence which is not extradita ble under the treaty is, in any sense, a derogation from the provisions of the treaty, which provides for the extradition of offenders for certain specified offences therein called "heinous offences," committed in the respective territories of the high contracting parties.
Under article 1 the Gov ernment of the Tonk State undertakes to extradite any per son, whether a British or a foreign subject, who commits a heinous offence in British territory.
A reciprocal obliga tion is cast by article 2 on the British Government to extradite a subject of Tonk committing such an offence within the limits of that State.
Article 3 provides, inter alia, that any person other than a Tonk subject committing a heinous offence within the limits of the Tonk State and seeking asylum in British territory shall be apprehended and the case investigated by such Court as the British Govern ment may direct.
Article 4 prescribes the procedure to be adopted and the conditions to be fulfilled before extradi tion could be had, and article 5 enumerates the offences which are "to be deemed as coming within the category of heinous offences" which, however, do not include the of fences charged against the appellant.
The argument on behalf of appellant was put thus: The maxim expressio unius est exclusio alterius is applicable, as pointed out by McNair on The Law of Treaties, (1938 pp. 203, 204), to the interpretation of treaties.
According to that rule the treaty in question should be read as allowing extradition only for the specified offences and for no others, that is to say, as implying a prohibition of extra dition by either State for any other offence than those enumerated in article 5.
Further, while the treaty entitled each of the high contracting parties to demand extradition on a reciprocal basis, an unilateral undertaking by the Indian Government to grant extradition for an offence for which it could not claim extradition under the treaty 578 violates the principle of reciprocity which is the recog nised basis of all international compacts for extradition.
Such an arrangement places the State of Tonk in a more advantageous position which was not contemplated by the framers of the treaty.
And where, as here, the person whose surrender is demanded is an Indian subject who is not liable to be extradited under the treaty, his surrender under section 7 trenches upon the liberty of the subject.
In so far, therefore, as that section authorises extradition of a person, especially when he is an Indian subject, for an offence which is not extraditable under the treaty, it derogates from the provisions of the treaty within the meaning of section 18, and its application to the present case is thereby excluded.
The argument proceeds on a miscon ception and cannot be accepted.
No doubt the enumeration of "heinous offences" in arti cle 5 of the treaty is exhaustive in the sense that the high contracting parties are not entitled, under the treaty, to claim extradition of criminals in respect of other offences.
But we cannot agree that such of enumeration implies a prohibition against either those parties providing by its own municipal laws for the surrender of criminals for other offences not covered by the treaty.
It is difficult to imagine why the contracting States should place such a fetter on their respective legislatures in advance not only in regard to their subjects but also in regard to alien offenders, for, if such prohibition is at all to be implied, it should cover both.
As pointed out in Wheaton 's Interna tional Law, there is no universally recognised practice that there can be no extradition except under a treaty, for some countries grant extradition without a. treaty: (Fourth Edition, sections 116 (a) to (d), pp. 186 189).
No doubt the constitutional doctrine in England is that the Crown makes treaties with foreign States for extradition of criminals but those treaties can only be carried into effect by Act of Parliament: (Ibid section 116 (b), p. 187).
Accordingly, the extradition Acts are made applicable by an Order in Council in the case of each State which enters into an extradition treaty 579 with the Crown, and they are made applicable only so far as they can be applied consistently with the terms and condi tions contained in the treaty.
Under such a system where the high contracting parties expressly provide that their own subjects shall not be delivered up, as in the case of the treaty between England and Switzerland, the power to arrest and surrender does not exist: Regina vs Wilson(1).
This, it was observed by Cockburn C.J. in that case, was a "serious blot" on the British system of extradition, and the Royal Commission on Extradition, of which he was the chairman, recommended in their report that "reciprocity in this matter should no longer be insisted upon whether the criminal be a British subject or not.
If he has broken the laws of a foreign country his liability to be tried by them ought not to depend upon his nationality .
The convenience of trying crimes in the country where they were committed is obvious.
It is very much easier to transport the criminal to the place of his offence than to carry all the witnesses and proofs to some other country where the trial is to be held:" (Wheaton, section 120 (a), pp. 197, 198).
Evidently, similar considerations led to the passing of the Act by the Indian Legislature providing for the surrender of criminals, including Indian subjects, for a wide variety of offences, with power to the Governor General in Council to add to the list by notification in the Gazette generally for all States or specially for any one or more States.
This statutory authority to surrender cannot of course enlarge the obliga tion of the other party where an extradition treaty has been entered into, and this is made clear by section 18.
But it is equally clear that the Act does not derogate from any such treaty when it authorises the Indian Government to grant extradition for some additional offences, thereby enlarging, not curtailing, the power of the other party to claim surrender of criminals.
Nor does the Act derogate, in the true sense of the term, from the position of an Indian subject under the treaty of 1869.
That treaty created no right in the subjects of either (1) 580 State any more than in fugitive aliens not to be extradited for other than "heinous offences.
" It is noteworthy that even in Wilson 's case, (ubi supra) where there was an excep tion in the treaty in favour of the subjects of the con tracting States, the decision was based not on the ground that the treaty by itself conferred any right or privilege on English subjects not to be surrendered but on the ground that the Order in Council applying the Extradition Act, 1870, to Switzerland limited its operation, consistently with the terms of the treaty, to persons other than English subjects.
It is, therefore, not correct to say that, by providing for extradition for additional offences, the Act derogates from the rights of Indian citizens under the treaty or from the provisions of the treaty.
We are accord ingly of opinion that the arrest and surrender of the appel lant under section 7 of the Act is not rendered unlawful by anything contained in the treaty of 1869, assuming that it still subsists.
The appeal fails and is dismissed.
FAZL ALI J.
I have had the advantage of reading the judgments prepared by my brothers Sastri and Mukherjea, who have given different reasons for arriving at the same con clusion.
As I am inclined to agree with the line of reason ing in both the judgments, I concur in the order that this appeal should be dismissed.
MAHAJAN J.
I agree with the judgment going to be deliv ered by my brother Mukherjea.
For the reasons given therein this appeal should be dismissed.
MUKERJEA J.
This appeal, which has come up before us on special leave granted by this Court, is directed against a judgment of Harish Chandra J. of the Allahabad High Court dated 11th of November, 1949, by which the learned Judge dismissed an application of the appellant under sections 491 and 561 A of the Criminal Procedure Code.
The facts which are material for purposes of this appeal are not in controversy and may be shortly stated as follows: The appellant Dr. Ram Babu 581 Saksena, who is a resident of the United Provinces, was a member of the Executive Civil Service in that province, and during his official career, extending over SO years, held various important posts, both in and outside that province.
In January, 1948, he was appointed Administrator of the Tonk State, where a dispute was going on at that time regarding succession to the rulership of the State between two rival claimants.
On 11th of February, 1948, the dispute was set tled and Ismail Ali Khan was recognised as the Nawab or the Ruling Prince of the State and appellant was then appointed Dewan and Vice President of the State Council, of which the Nawab was the President.
In April, 1948, the Tonk State, together with several other States in Rajputana, integrated and formed together the United State of Rajasthan and the appellant thereupon became the Chief Executive Officer of the Rajasthan Government.
Towards the end of July, 1948, he got another special post under the Rajasthan Government, but soon afterwards, he took leave and proceeded to Naini Tal, where he has been residing since then.
On 23rd May, 1949, he was arrested at Naini Tal on the strength of a warrant issued under section 7 of the , by Shri V.K.B. Pillai, Regional Commissioner and Political Agent of the United State of Rajasthan.
The warrant, which is dated the 8th of May, 1949, was addressed to the District Magistrate of Naini Tal and directed the arrest of Dr. Saksena and his removal to Rajasthan, to be delivered to the District Magistrate of Tonk for enquiry into certain of fences against the laws of that State which he was alleged to have committed.
After his arrest, the appellant was released on bail in terms of the warrant itself and was directed to be present before the District Magistrate of Tonk on the 7th of June, 1949.
The allegations against the appellant in substance are, that while he was 'the Dewan of the Tonk State and Vice President of the State Council, the Nawab, being in urgent need of money to meet his personal demands, requested Dr. Saksena to help him in obtaining for his own use 582 a sum of Rs. 14 lakhs from the State Treasury.
Dr. Saksena promised his assistance on condition that the Nawab would give him a sum of Rs. 3 lakhs out of this amount as his share.
By dint of his efforts, the appellant succeeded in inducing the State Ministry to pay the full amount of Rs. 14 lakhs to the Nawab in different instalments.
The first instalment, amounting to over Rs. 21/2 lakhs was paid on 31st March, 1948, and a further sum of Rs. 5 lakhs was paid on 21st of April following.
On that date, it is said, the Nawab paid to Dr. Saksena a sum of Rs. 1,50,000 which was only half of the promised amount.
A few days later, Dr. Saksena pressed for payment of the balance and held out threats to the Nawab that in case the money was not paid, the latter would find himself in serious difficulties as his position as a Ruling Prince of the State was not at all secure and there were grave charges against him.
As a result of these threats and misrepresentations, the Nawab was induced to pay to the appellant the balance of Rs. 1,50,000 in two instalments.
The matter became known to the Regional Commissioner some time in November 1948 and he called Dr. Saksena for an interview and succeeded in getting back from him the entire sum of Rs. 3 lakhs which the Nawab had paid.
On the basis of these facts, Dr. Saksena has been accused of having committed offences under sections 383 and 420 of the Indian Penal Code.
On 3rd June, 1949, Dr. Saksena filed an application in the High Court of Allahabad under sections 491 and 561 A of the Criminal Procedure Code, complaining of illegal and unauthorised detention under the warrant of the Regional Commissioner of Rajputana dated the 8th of May, 1949.
The legality of the warrant and of arrest thereunder was at tacked on a number of grounds.
It was contended, first of all, that the applicant was falsely implicated by the Nawab on account of enmity which grew up between them for various reasons and the allegations made were totally false.
It was next said that the District Magistrate of Naini Tal could not take cognizance of the matter without the previous 583 sanction of the U.P. Government under section 197 of the Criminal Procedure Code and that the sanction of the Rajpra mukh of the United State of Rajasthan was also necessary before any proceeding could be initiated.
The third and the main contention was that the alleged offences being said to have been committed in the State of Tonk, the case would be governed by the provisions of the Extradition Treaty entered into between the British Government and the Tonk State on 28th of January, 1869, and as neither "extortion" nor "cheating" was mentioned in the list of offences for which extradition was permissible under that Treaty, the warrant of arrest issued under section 7 of the Extradition Act was wholly illegal and unauthorised.
It is admitted that these offences are specified in the Schedule to the Indian Extra dition Act of 1903, but it was said that section 18 of the Extradition Act expressly made the Act inapplicable when its provisions "derogated" from those of a Treaty.
Lastly, it was urged that the extradition warrant was a mala fide step taken by the Nawab of Tonk with the help of his friend the Regional Commissioner of Rajasthan for ulterior purposes and that it constituted a fraud upon the Statute and an abuse of the processes of law.
The application was heard by Harish Chandra, J. sitting singly, and by a judgment dated 11th of November, 1949, which fully and elaborately dis cussed the different points raised in the case, the learned Judge rejected the application of the petitioner.
No cer tificate was given by the High Court under section 205 (1) of the Government of India Act, 1935, and the present appeal has been brought to this Court on the strength of special leave granted by it.
Sir Alladi Krishnaswami Aiyar, who appeared in support of the appeal, has very properly not pressed before us all the points that were canvassed on behalf of his client in the Court below.
His contention, in substance, is that the rights of extradition in the present case should be regulat ed exclusively by the provisions of the Extradition Treaty that was entered into between the Tonk State and the British Government 584 on 28th of January,.
1869, and was subsequently modified by a supplementary ,Treaty in the year 1887.
This Treaty, it is argued, has not been abrogated or rendered ineffective in any way by reason of the merger of the Tonk State in the United State of Rajasthan, and the decision of the High Court on this point is erroneous.
According to the provi sions of this Treaty, no extradition is permissible in respect to offences of "extortion" and "cheating" with which the appellant is charged and the warrant of arrest issued by the Political Agent is consequently illegal and ultra vires.
It is conceded by Sir Alladi that if section 7 of the , is held to be applica ble to the facts of the present case, the warrant of arrest issued by the Political Agent of Rajasthan could not be assailed as invalid or inoperative; but his contention is that section 18 of the Extradition Act makes an express reservation in cases where Treaty rights exist and to the extent that the provisions of Chapter III of the Extradition Act derogate from those of any Treaty relating to extradi tion of offenders, the Treaty is entitled to prevail.
To appreciate the merits of this contention, it may be convenient to refer at this stage to a few sections of the of 1903 as well as to the material provisions of the Extradition Treaty between the Tonk State and the British Government which have a bearing upon the present question.
Chapter 111 of the deals with surrender of fugitive criminals in case of States other than foreign States and section 7, with which this chapter opens, provides as follows: "(1) Where an extradition offence has been committed or is supposed to have been committed by a person, not being a European British subject, in the territories of any State not being a foreign State, and such person escapes into or is in British India, and the Political Agent in or 1or such State issues a warrant, addressed to the District Magis trate of any district in which such person is believed to be, (or if such person is believed to be in any Presidency town 585 to the Chief Presidency Magistrate of such town), for his arrest and delivery at a place and to a person or authority indicated in the warrant such Magistrate shall act in pursu ance of such warrant and may give directions accordingly.
" * * * * The expression "extradition offence" has been defined in section 2 (b) and means "any such offence as is described in the First Schedule to the Act.
" The First Schedule gives a catalogue of offences described with reference to specific sections of the Indian Penal Code and it includes offences punishable under sections 383 and 420 of the Indian Penal Code prima facie, it seems therefore that all the conditions laid down in section 7 of the Extradition Act are fulfilled in the present case.
the warrant has been issued by the Political Agent of a State which is not a "foreign State" as defined by the Act and the offences with which the appellant is charged are "extradition offences" as specified in Sched ule i. Sir Alladi 's contention, as stated above, is that section 7, which is in Chapter III of the Extradition Act, is controlled by section 18 which lays down that "nothing in this chapter shall derogate from the provisions of any treaty for the extradition of offenders, and the procedure provided by any such treaty shall be followed in any case to which it applies, and the provisions of this Act shall be modified accordingly.
" Turning now to the Extradition Treaty between the Tonk State and the British Government, it will be seen that the First Article of the Treaty provides for extradition, where a British subject or a foreign subject commits a "heinous" offence in British territory and seeks shelter within the limits of the Tonk State.
The Second Article deals with an offender who is a subject of the Tonk State and having committed a "heinous" offence within the State seeks asylum in British territory; while the Third Article relates to a person other than a Tonk subject who commits a "heinous" offence within the limits of the Tonk State and seeks asylum in British territory.
The conditions 586 under which extradition could be had in all such cases and the procedure to be followed are laid down in article 4.
Article 5 then gives a list of offences which would be deemed as coming within the category of "heinous" offences.
It is not disputed that neither "cheating" nor "extortion" are mentioned in this list.
The whole controversy, there fore, centers round the point as to whether in view of the provisions of the Extradition Treaty mentioned above, extra dition could legally be made or demanded in respect of offences coming under sections 383 and 420 of the Indian Penal Code which are mentioned in the list of offences specified in Schedule I to the Extradition Act but do not find a place in article 5 of the Treaty.
Could it be said that the provisions of the Extradition Act, derogate in this respect from the Treaty between the Tonk State and the British Government and consequently, the terms of the Treaty would override the statute as indicated in section 18 of the Extradition Act ? The learned Attorney General, who appeared for the Government of India, put forward a two fold argument in reply to the contention of Sir Alladi.
He argued in the first place, that section 18 of the has no application to the present case inasmuch as the Extradition Treaty between the Tonk State and the British Government, upon which the appellant relies, does not subsist and cannot be enforced, at the present day.
The other contention is that even if the Treaty still subsists, there is nothing in its terms which prohibits extradition for offences other than those described as heinous offences in article 5.
It is argued that "to derogate" means "to detract" or "to take away" and the Schedule to the Extradi tion Act by mentioning certain offences, which do not occur in the list of "heinous offences" as given in the Treaty, cannot be said to have derogated from the terms of the Treaty.
Both these points were fully argued on both sides and it is clear that if on either of these points a decision is reached adverse to the appellant, the appeal is bound to fail.
587 So far as the first point is concerned, Mr. Setalvad has drawn our attention to various political changes that have come over the Tonk State since the conclusion of the Extra dition Treaty in 1869.
In 1869 Tonk was one of the Native States in India with a "separate" political existence of its own and the Treaty that was entered into in that year was meant to regulate exclusively the rights and obligations in matters of extradition of offenders as between the Tonk State on the one hand and the British Government on the other.
In 1887 there was a modification of the Treaty but it is not disputed that the modification made certain alter ations in the procedure which are not material for our present purpose.
The major political change with regard to all Indian States which vitally affected their existing Treaties with the British Government occurred on the 15th of August, 1947, when India became an Independent Dominion.
Section 7 of the Indian Independence Act provided inter alia that: "(1) As from the appointed day (b) The suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States . .
As a result of this provision, the Extradition Treaty between Tonk and the British Government must be deemed to have lapsed with effect from the 15th of August, 1947.
If matters stood there, obviously there would be nothing left upon which section 18 of the could possibly operate.
There was, however, a Standstill Agreement entered into by the Indian Dominion with the Indian States, the first article of which runs as follows: "1.
(1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, in so far as may be appropriate, contin ue as between the Dominion of 588 India or, as the case may be, the part thereof, and the State.
(2) In particular, and without derogation from the generality of sub clause (1) of this clause the matters referred to above shall include the matters specified in the Schedule to this agreement.
" The Schedule does mention "extradition" as one of the matters to which the Standstill Agreement is applicable.
This was certainly intended to be a temporary arrangement and Mr. Setalvad argues that as there was no Treaty in the proper sense of the term but only a substitute for it in the shape of a temporary arrangement, section 18 of the Extradition Act which expressly mentions a Treaty cannot be applicable.
While conceding that prima facie there is force in the conten tion, I think that this would be taking a too narrow view of the matter and I should assume for the purposes of this case that under the Standstill Agreement the provisions of the Treaty of 1869 still continued to regulate matters of extradition of criminals as between the Tonk State on the one hand and the Indian Dominion on the other till any new agreement was arrived at between them.
Though the Standstill Agreement was to take effect after the establishment of the Indian Dominion, the In strument was actually signed on 8th of August, 1947.
On the 16th of August, 1947, Tonk acceded to the Dominion of India and one of the terms in the Instrument of Acces sion is that the "Ruler accepts the position that with regard to matters specified in the Schedule to the Instrument, the Dominion Legislature would be entitled to make laws for the State." "Extradition including the surrender of criminals and accused persons to parts of His Majesty 's Dominion outside India" is one of the matters specified in the Schedule.
Thus the State gave up and surrendered in favour of the Dominion Legislature its right, to legislate in respect to extradition after the date of accession.
Whether the existing Extradition Treaty was ipso facto abrogated by this Instrument of Accession is not so clear.
Obviously, the Indian Dominion 589 could pass any legislation it liked regarding matters of extradition between the Tonk State, and any other State, either Indian or Foreign.
No such law was, however, passed by the Indian Legislature except that very recently under an Adaptation Order the Extradition Act of 1903 has been made applicable to States under Group B in the Indian Constitution in which Rajasthan is included.
It is to be noted that the Extradition Act itself, which is made applicable to the United State of Rajasthan, contains an express provision in section 18 which safeguards exist ing treaty rights.
It is somewhat unusual that an Extradi tion Treaty would be subsisting even after the State had acceded to India but we have no materials before us upon which we could definitely hold that the Treaty has been expressly superseded or abrogated by the Indian Legislature.
The next important thing is that in April, 1948, there was a Covenant entered into by the Rulers of nine States including Tonk, by which it was agreed by and between the covenanting parties that the territories of these nine States should be integrated into one State by the name of the United State of Rajasthan.
This was done with the concurrence of the Dominion of India.
Later on, on 12th of May, 1949, Mewar also became a party to this Covenant and the United State of Rajasthan was reconstituted by the integration of the territories of all the ten States.
By the Covenant of Merger, the Covenanting States agreed to unite and integrate their territories in one State known as the United State of Rajasthan and to have a common executive, legislature and judiciary.
The Rulers of all the States became members of the Council of Rulers and the President was designated as the Raj Pramukh of the United State.
Article VI of the Covenant of Merger runs as follows: "(1) The Ruler of each Covenanting State shall, as soon as practicable and in any event not later than the first day of May, 1948, make over the administration of his State to the Raj Pramukh; and thereupon 590 (a) all rights, authority and jurisdiction belonging to the Ruler which appertain or are incidental to the Govern ment of the Covenanting State shall vest in the United State and shall hereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder; (b) all duties and obligations of the Ruler pertain ing or incidental to the Government of the Covenanting State shall devolve on the United State and shall be discharged by it; and (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State.
" The question now is how far was the Extradition Treaty between the Tonk State and the British Government affected by reason of the merger of the State into the United State of Rajasthan.
When a State relinquishes its life as such through incorporation into or absorption by another State either voluntarily or as a result of conquest or annexation, the general opinion of International Jurists is that the treaties of the former are automatically termi nated.
The result is said to be produced by reason of com plete loss of personality consequent on extinction of State life(1).
The cases discussed in this connection are gener ally cases where independent States have ceased to be such through constrained or voluntary absorption by another with attendant extinction of the former 's treaties with other States.
Thus the forceable incorporation of Hanover into the Prussian Kingdom destroyed the previous treaties of Hanover.
The admission of Texas into the United States of America by joint resolution extinguished the Treaties of the Independent Republic of Texas(2).
The position is the same when Korea merged into Japan.
According to Oppenheim, whose opinion has been relied upon, by Sir Alladi, no succession of rights and duties ordinarily takes place in such cases, and as political and personal treaties presuppose the exist ence of a contracting State, (1) Vide Hyde on International Law, Vol.
III, p. 1529.
(2) Vide Hyde on International Law, Vol.
II1, p. 1531, 591 they are altogether extinguished.
It is a debatable point whether succession takes place in cases of treaties relating to commerce or extradition but here again the majority of writers are of opinion that they do not survive merger or annexation(1).
The remarks quoted above do not, however, seem quite appropriate to a case of the present description.
Here there was no absorption of one State by another which would put an end to the State life of the former and extinguish its personality.
What happened here was that several States voluntarily united together and integrated their territories so as to form a larger and composite State of which every one of the covenanting parties was a component part.
There was to be one common executive, legislature and judiciary and the Council of Rulers would consist of the Rulers of all the Covenanting States.
It may not be said, therefore, that the Covenanting States lost their personality altogether and it is to be noted that for purposes of succession of Ruler ship and for counting votes on the strength of population and other purposes the Covenant of Merger recognises a quasi separation between the territories of the different States.
But although such separation exists for some pur poses between one State territory and another, it is clear that the inhabitants of all the different States became, from the date of merger, the subjects of the United State of Rajasthan and they could not be described as subjects of any particular State.
There is no such thing as subject of the Tonk State existing at the present day and the Ruler of Tonk cannot independently and in his own right exercise any form of sovereignty or control over the Tonk territory.
The Government, which exercises sovereign powers, is only one, even though the different Rulers may have a voice in it.
It seems to us that in those altered circumstances the Extradi tion Treaty of 1869 has become entirely incapable of execution.
It is not possible for the Tonk State, which is one of the contracting parties to act in accordance with the terms of the treaty, for it has no longer any independent (1) Oppenheim on International Law, Vol.
I, p. 152, 592 authority or sovereign rights over the Tonk territory and can neither make nor demand extradition.
When as a result of amalgamation or merger, a State loses its full and inde pendent power of action over the subject matter of a treaty previously concluded, the treaty must necessarily lapse(1).
It cannot be said that the sovereignty of the Tonk State in this respect is now vested in the United State of Rajasthan.
The authority, so far as extradition was concerned, was already surrendered by the Tonk State in favour of the Dominion Government by the Instrument of Accession.
But even assuming that these treaty rights could devolve upon the United State of Rajasthan by reason of article 6 of the Covenant of Merger, the latter, it seems to me, could be totally incapable of giving effect to the terms of the treaty.
As has been said already, there could be no such thing as a subject of the Tonk State at the present moment and article 2 of the Treaty which provides for extra dition of Tonk subjects accused of having committed heinous offences within Tonk territory and seeking asylum elsewhere would be wholly infructuous.
The United State of Rajasthan could not possibly demand extradition on the basis of this article, and if reciprocity, which is the essence of an Extradition Agreement, is gone, the Treaty must be deemed to be void and inoperative.
The decision in Terlinden vs Ames (2) which was relied upon by Sir Alladi in course of his arguments, rather forti fies the view that I have taken.
The question there was whether an Extradition Treaty between Prussia and the United States of America, which was entered into in 1852, could be given effect to after the incorporation of Prussia into the German Empire.
The question was answered in the affirmative.
It was pointed out inter alia that the Constitution of the German Empire left sufficient independent power and sover eignty to the States composing the confederation to enable them to act upon these treaties and it was observed by Chief Justice Fuller, who delivered the opinion of the Court, that where sovereignty in respect (1) Vide Hyde on International Law, Vol.
p. 1535.
(2) ; 593 to the execution of treaties is not extinguished and the power to execute remains unimpaired, outstanding treaties cannot be regarded as void.
This is the real criterion and as obviously the power of the Tonk State to execute the treaty is altogether gone after the Covenant of Merger, the treaty cannot but be regarded as void.
The other case cited by Sir Alladi, viz., that of Lazard Brothers vs Midland Bank Ltd.(1) has absolutely no bearing on this point.
It laid down the well accepted proposition of International Law that a change in the form of government of a contracting State does not put an end to its treaties.
The treaty entered into by the Czarist Russia could be given effect to after the Revolution, once the new government was recognised as a person in International Law.
My conclusion, therefore, is that the Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of being given effect to in the present day in view of the merger of the Tonk State in the United State of Rajasthan.
As no treaty rights exist, section 18 of the has no application and section 7 of the Act has been complied with, there is no ground upon which we can interfere.
In view of my decision on the first point, the second point does not require determination and I refrain from expressing any opinion upon it.
In the result, the appeal fails and is dismissed.
DAS J I substantially agree with the reasonings given in the judgment just delivered by my learned brother Mukher jea and concur in dismissing this application.
Appeal dismissed.
| While greasing the spur gear wheel of an oil mill, one of the hands of a workman got caught and had to be amputated.
It appeared that at the time of the accident the cover of the spur gear wheel was not there.
The respondent, who is the manager of the mill was prosecuted under section 92 of the for having failed to comply with section 21(1) (iv) (c) of the Act.
The workman said that the cover had been removed by the respondent for repairs, while the case of the respondent was that the workman had himself removed it.
The trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone, without his consent or knowledge.
On appeal, the High Court affirmed the acquittal.
Held: (i) The mere fact that someone else had removed the safeguard without the knowledge, consent or connivance of the occupier or manager does not provide a defence to him.
When the statute says that it will be his duty to keep a guard in position while the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this he was not liable.
(ii) Even where the occupier or manager could establish that somebody else had removed the fence, he has further to prove that he exercised due diligence to see that the fence, which under the Act was his duty to see was kept in position all along, had not been removed.
|
ivil Appeal No 138 of 1955.
Appeal from the judgment and decree dated October 15, 1953, of the Mysore High Court at Bangalore in Regular Appeal No. 255 of 1950 51, arising out of the order dated September 18, 1950, of the Court of the District Judge, Bangalore, in Misc.
Case No. 39 of 1947 48.
G. Channappa, Assistant Advocate General, Mysore R. Gopala Krishnan and T. M. Sen, for the appellant ' A. V. Viswanatha Sastri, M. A. Rangaswami, K. R. Sarma and K. R. Choudhury, for the respondent.
November 7.
The Judgment of the Court was delivered by section K. DAS, J.
This appeal by the Special Land Acquisition Officer, Bangalore, has been brought to this Court on a certificate granted by the High Court of Mysore, and is from the decision of the said High Court dated October 5, 1953, in a regular appeal from an order made by the 2nd Additional District Judge, Bangalore, on September 18, 1950, on a reference under section 18 of the Land Acquisition Act (herein.
after referred to as the Act).
The facts so far as they are relevant to the appeal before us are these.
An area of about 51,243 squard 406 yards of land was acquired by Government under Notification No. M. 11054 Med.
80 45 25 dated April 16, 1946, for development of the Appiah Naidu Maternity Home at Malleswaram, Bangalore City, into a Maternity Hospital.
There were eight owners interested in the property acquired, out of whom two objected to the award made by the Special Land Acquisition Officer, now appellant before us.
One of these two was T. Adinarayana Shetty, a diamond merchant of Mysore City.
Originally, he was the respondent before us, and on his death his son and legal representative has been brought into the record as the sole respondent to this appeal.
The deceased respondent Adinarayana Setty (hereinafter called the respondent) was interested in 48,404 sq.
yards out of the total area, and it may be stated here that there is no dispute before us that out of the said 48,404 sq.
yards an area of about 3,000 sq.
yards consists of land which has been variously characterised as a depression or a pit or low lying land (called 'halla ' in the local vernacular language).
Out of the total amount of compensation awarded by the Special Land Acquisition Officer, a sum of Rs. 1,41,169/was awarded to the respondent.
The Special Land Acquisition Officer proceeded on the following basis for his award.
Firstly, he found that the land value in and around Bangalore City had increased in recent years owing to the war and the respondent had paid to the Deputy Commissioner, Bangalore District, a sum of money called a conversion fine for sanctioning a scheme of converting the land into non agricultural land.
Thereafter, a layout for building sites was prepared and approved by the Municipality and the res pondent sold a few of the sites shown in the layout to some purchasers.
This was done before the publication of the preliminary notification of acquisition; but the sale of further building sites was stopped after the said publication.
Secondly, the Special Land Acquisition Officer took into consideration the value of the sites sold by the respondent and came to the conclusion that Rs. 10/ per sq.
yard was the market value of the land in question.
He awarded to the respondent compensation for approximately 48,404 sq. yards at the 407 rate of Rs. 10/ per sq. yard, but after deducting therefrom an area of 26,248 sq. yards which, according to the Special Land Acquisition Officer, was required for making roads and drains as per the layout scheme.
The total amount thus calculated came to Rs. 2,21,563.
and odd and from this a sum of Rs. 98,807 was again deducted as representing the expenditure which would be required for making roads and drains.
The net amount was thus found to be Rs. 1,22,756 and odd and adding 15% as the statutory compensation payable to the respondent the total amount awarded by, the Special Land Acquisition Officer to the respondent, came to Rs. 1,41,169/ .
Against this award, the respondent raised an objection, and a reference was accordingly made to the District Judge of Bangalore under section 18 of the Act.
This reference was heard by the 2nd Additional District Judge who, by his order dated September 18, 1950, came to the following conclusions: (i) that the rate awarded by the Land Acquisition Officer at Rs. 10/ per sq.
yard was fair and should be,upheld; (ii) that a sum of Rs. 10,000/ for providing electric installation out of the sum of Rs. 98,807/ deducted by the Land Acquisition Officer from the compensation payable to the respondent should not be deducted; and (iii) that with regard to the area of the low lying.
land which I was completely excluded by the Land Acquisition Officer, the respondent should get at the rate of Rs. 3/ per sq. yard or approximately a sum of I Rs. 10,000/ .
In other words, the learned Additional District Judge increased the compensation in favour of the respondent by a sum of about Rs. 20,000/ .
Not being satisfied, the respondent preferred an appeal to the High Court of, Mysore.
The learned Judges of the High Court found that the proper compensation for the land,.
except the portion characterised as low lying, should be Rs. 13/8/per sq. yard and as to the low lying portion it should be reduced by Rs. 51 per sq.
yard inasmuch as a sum of Rs. 15,000/ was necessary, according to the 408 evidence given in the case, for filling it up; in other words, the High Court awarded compensation at the rate of Rs. 8/8/ per sq. yard for the low lying land.
The High Court also reduced the area which had to be deducted for making roads, etc., according to the layout scheme from 26,248 sq.
yards to 12,101 sq.
yards.
It also reduced the layout charges to Rs. 64,432/ .
The High Court added to the compensation a sum of Rs. 7,000/ as the value of a building which the respondent had constructed on one of the sites on the finding that the construction was made prior to the preliminary notification.
In this respect the High Court departed from the finding of the Land Acquisition Officer that the building was put up after the publicaion of the preliminary notification.
The total amount of compensation which the High Court awarded came to about Rs. 4,80,000 and odd.
As the judgment of the High Court was a judgment of reversal and the appellant felt dissatisfied with it, a certificate of fitness was asked for and was granted by the High Court on July 6, 1954.
The present appeal has been brought to this Court in pursuance of that certificate.
The appellant has confined his appeal to the following three points: (1) payment of compensation of a sum of Rs. 7,000/ for the building said to have been constructed before the publication of the preliminary notification; (2) payment of compensation at Rs.
,8/8/per sq. yard for the low lying land (halla); and (3) payment of compensation at Rs. 13/8/ for the remaining land after deducting the area for making roads and buildings.
We may state that there is no dispute before us now as to the area which should be so deducted and also as to the amount of layout charges, as the findings of the High Court on these two points nave not been challenged before us.
On behalf of the respondent our attention has been ' drawn to the decisions of the Privy Council in Charan Das vs Amir Khan (1), Narsingh Das vs Secretary of State for India (2) and Nowroji Bustomji Wadia vs (1) (1920) 47 I.A. 255.
(2) (1924) 52 I.A. 133.
409 Bombay Government (1).
On these decisions it is submitted by learned counsel that though section 26 of the Act was amended in 1921 by insertion of sub section
(2) which says that every award shall be deemed to be a decree ' and thus an appeal therefrom must be considered and determined in the same manner as if it is a judgment from a decree in an ordinary suit the established practice of the Privy Council has been not to interfere with a finding on the question of valuation, unless there is some fundamental principle affecting the valuation which renders it unsound.
The practice, it is stated, was based on two considerations: first, that the courts in India were more familiar with local conditions and circumstances on which the valuation depended and, secondly, the Privy Council found it necessary to limit the extent of the enquiry in order to spare the parties costly and fruitless litigation.
On behalf of the appellant it is submitted that this Court has no doubt adopted the practice that it will not ordinarily interfere with concurrent findings of fact, but this Court has no such established practice as was adopted by the Privy Council in valuation cases even where a difference of opinion has occurred between two courts upon the number of rupees per yard to be allowed for a plot of land.
He has further submitted that the reasons for the practice adopted by the Privy Council do not apply with equal force to this Court.
In view of the facts of this case and the opinion which we have formed after hearing learned counsel for both parties, we do not think it necessary to make any final pronouncement as to the practice which this Court should adopt in a valuation case where two courts have differed.
We are content to proceed in this case on the footing that we should not interfere unless there is something to show, not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied.
(1) (1925) 52 I.A. 367.
52 410 We are satisfied that there is no error of principle or otherwise in the findings of the High Court as to the first two points urged in support of the appeal.
As to the construction of the building for which a compensation of Rs. 7,000 has been awarded, the clear finding of the High Court is that it was constructed prior to the preliminary notification.
It has been further stated before us that the building is in actual occupation of the medical department.
Learned counsel for the appellant has taken us through the evidence on the question of construction of the house and the application for a licence for building the said ' house which was made by the respondent to the Bangalore Munici pality.
We are unable to hold that that evidence has the effect of displacing the clear finding of the High Court.
As to the low lying land, we consider that the High Court has given very good reasons for its finding.
Admittedly, the area of the low lying land (halla) is about 3,000 sq.
yards.
The Land Acquisition Officer valued it at Rs. 3 per sq. yard.
A sum of Rs. 15,000 has been deducted from the compensation payable to the respondent on the ground that that amount will be required for filling up the low lying land and converting it into building sites.
Therefore, the position is that the respondent has not only been made to part with 3,000 sq.
yards of land at 3 per sq. yard, but he has also been made to pay Rs. 15,000 for filling up the land.
If these two figures are added, even then the market value of the land comes to about Rs. 8 per sq. yard.
This is so even if we do not follow the method adopted by the High Court that the sum of Rs. 15,000 for 3,000 sq.
yards gives an average of Rs. 5 per sq. yard and that amount should be deducted from the rate of Rs. 13 8 0 per sq. yard fixed as the proper compensation for the remaining land.
We are of the opinion that on the materials before us the value per sq. yard fixed by the High Court for the low lying land is fully justified even on adoption of the method suggested by learned counsel for the appellant.
Learned counsel for the respondent has referred us to the circumstance that some of the sales 411 of building sites which the respondent had made appertained to the low lying land and he has further emphasised the circumstance that just opposite the low lying land which is at the eastern end of the entire area, some houses had been built.
We have taken these circumstances into consideration, but do not think that the conclusion which learned counsel for the respondent wishes us to draw follows therefrom.
First of all, it is by no means clear that the sales of the building sites at the low rate of Rs. 6 8 0 or thereabout appertained to the low lying land only, and, secondly, the mere circumstance that some buildings have been made on land opposite the low lying lands but on the other side of the road, does not necessarily mean that the low lying lands are as valuable as the other land in the area.
We are therefore of the view that the compensation fixed by the High Court for the low lying land is not vitiated by any error of the kind which will justify our interference with it.
We now proceed to consider the third and main point urged on behalf of the appellant, namely, the rate of 13/8 per sq. yard for the other land in the area.
Learned counsel for the appellant has submitted before us that the High Court has committed two fundamental errors in arriving at this finding.
Furthermore, the High Court has been influenced by extraneous considerations such as the purpose for which the land was acquired, the report of certain medical authorities as to the unsuitability of the land for the purpose for which it was acquired, and the delay in putting the land to the use for which it was acquired.
We agree with learned counsel for the appellant that these were extraneous considerations which had no bearing on the question of valuation and the learned Judges of the High Court misdirected themselves as to the scope of the enquiry before them when they imported these considerations into the question of valuation.
We further think that the High Court committed an error of principle in arriving at the figure Rs. 13/8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the 412 relevant time.
It is not disputed that the function of the court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under section 4(1) and the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bonafide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years ' purchase of the actual or immediately prospective profits of the lands acquired.
In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors.
There were altogether seven transactions of alienation made by the respondent.
One was a gift which must necessarily be excluded.
The earliest of the sales was in favour of Muniratham which was made on May 15, 1945.
Another was made on July 18, 1945.
This was in favour of Venugopal who was the husband of a grand daughter of the respondent.
Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August, 1945.
The notification under section 4 of the Land Acquisition Act was made on October 4, 1945.
What the learned Judges of the High Court did was to take only four out of the aforesaid six transactions into consideration and then to draw an average price therefrom.
The learned Judges gave no sufficient reason why two of the transactions were left out.
In one part of their judgment they said : " The evidence discloses that the appellant has effected four sales about a couple of months prior to the date of preliminary notification and the rates secured by him are Rs. 12, 15, 14 and 7/8 which on calculation give an average of Rs. 12/2 per sq. yard ".
Why the transaction of May 15, 1945, which was at a rate of Rs. 6/8 per sq. yard only was left out it is difficult to understand.
Similarly, the transaction of July 18, 1945, was at the rate of Rs. 10 per sq. yard.
That also was left out.
We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court.
If all the six transactions of sale are taken into consideration, the average rate comes to about Rs. 10/13 per sq. yard only.
Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average.
Having arrived at an average of Rs. 12/2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12/2.
Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13/8.
No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference.
It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions.
It is difficult to understand why it should be utilised again for arriving at the market value of the land in question.
We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only.
Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (exhibit 11).
The respondent had therein said: Hence, under the standing orders compensation has to be paid at rates for building land in the neighbourhood.
This rate ranges from Rs. 10 to Rs. 12, an average of Rs. 10 a sq. yard, as could be verified from entries in the local Sub Registrar 's Office and Bangalore City Municipal Office.
At any rate, I myself have sold in the course of this year some six sites out of the land proposed to be acquired for rates ranging from Rs. 7 to Rs. 15 or on an average of Rs. 10 per sq. yard.
At this rate the compensation amount will be Rs. 5,12,430 and adding the statutory allowance of Rs. 76,860 at 15 per cent.
on the compensation amount on account of the compulsory nature of the acquisition, the total cost of the land will be Rs. 5,89,290 or nearly six lakhs of rupees.
" 414 The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 ,per sq.
yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme.
It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard.
It is worthy of note that the six transactions to which the respondent referred were sales of small building sites.
It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed.
We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land in question should be Rs. 11 per sq. yard.
The result, therefore, is that we allow this appeal to this limited extent only, namely, the order of the High Court will be modified by substituting the figure Rs. 11 per sq. yard for the figure Rs. 13/8 awarded by the High Court as compensation to the respondent for land other than the low lying land.
We maintain the order of the High Court that the parties will receive and pay costs in proportion to their success and failure, as now determined, in the courts below; but so far as the costs of this Court are concerned, the parties must bear their own costs in view of their divided success here.
Appeal partly allowed.
| Certain land belonging to the respondent was compulsorily acquired by the Government for a maternity hospital.
Most of the land consisted of building sites but there was a building on a small portion of the land and a portion was low lying land.
The Special Land Acquisition Officer held on the basis of the value of sites previously sold by the respondent, that the market value of the land was Rs. 10/ per sq. yard and awarded a sum of Rs. 1,41,169/ to the respondent as compensation.
He did not give any compensation for the low lying land or for the building.
Against this award the respondent raised an objection and a reference was made to the District judge.
The District judge accepted the rate of Rs. 10/ per sq. yard as fair, reduced the amount of deductions for providing electric installations by Rs. 10,000/ and allowed a sum of Rs. 10,000/ for the low lying area at the rate of Rs. 3/ per sq.
yard, thereby increasing the amount of compensation by Rs. 20,000/ .
Not being satisfied the respondent appealed to the High Court.
The High Court held that the rate of compensation for the land except the low lying portion, should be Rs. 13/8/ per sq yard and for the low lying portion it should be Rs. 8/8/ per sqyard.
It further awarded a sum of Rs. 7,000/ for the building.
In arriving at the figure of Rs. 13/8/ the High Court took into account only four sale transactions which had been made by the respondent at the rates of Rs. 12, I5, 14 and 7/8/ per sq. yard but did not take into consideration two other transactions which had been made by the respondent at the rates of Rs. 6/8/ and Rs. 10 per sq. yard.
It calculated the average of the four transactions to be Rs. 12/2/per sq. yard and then took a second average between Rs. 15/ , 405 which was the maximum price obtained by the respondent and RS.
12/2/ and arrived at the figure of Rs. 13/8/ .
The High Court was also influenced by considerations such as the purpose for which the land was acquired.
, the report of certain medical authorities as to the unsuitability of the land for the maternity hospital and the delay in putting the land to the use for which it was acquired.
Held, that with regard to the valuation of the land, other than the low lying portion, the High Court misdirected itself by taking into account extraneous considerations and had committed an error of principle in arriving at the figure of Rs. 13/8/ by adopting a wrong method of ascertaining the market value.
The High Court ought to have taken the average of all the six sale transactions and arrived at the proper valuation of Rs. 11/. per sq. yard.
There was no justification for ignoring two of the sale transactions or for taking a second average.
With respect to the compensation for the low lying land and the building there was no error of principle or otherwise in the findings of the High Court and no interference was called for.
|
ivil Appeal No. 2548 of 1983 From the Judgment and Order dated 15.9.82 of the Allaha bad High Court in Civil Misc.
W.P. No. 14807 of 1981.
Pramod Swarup for the Appellant.
R.B. Mehrotra for the Respondents.
562 The Judgment of the Court was delivered by KANIA, J.
This is an Appeal by Special Leave against a judgment and order dated September 15, 1982 delivered by the Allahabad High Court in Civil Miscellaneous Writ No. 14807 of 1981.
The appellant before us is the tenant of the shop in question.
Respondent No. 1 is a proforma party, namely, the Prescribed Authority, and respondent No. 2 is the landlord of the building containing the shop in question, situated at Mandi Harbansganj Dhampur.
We propose to refer to the appel lant as the tenant and respondent No. 2 as the landlord.
In 1959 the landlord filed an application under section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as "the U.P. Rent Act of 1947") for the eviction of the tenant from the said shop.
The said application was made on the ground that the landlord wanted to demolish the shops in the building including the said shop and in their place wanted to construct new shops and also to construct the residential portion on the first floor.
In the new building the accommodation would be much larger and, apart from shops, even residential premises would be constructed.
In paragraph 7 of the application, the landlord gave an "assurance (undertaking that the applicant will give the new shop to the second party after the new shops are constructed on a reasonable rent.
" It is common ground that the applicant referred to was the landlord and the second party referred to was the tenant.
This applica tion was contested by the tenant along with other tenants, against whom also, the similar applications were filed.
The application was made to the District Magistrate within the meaning of the said expression in sub section (d) of section 2 of the U.P. Rent Act of 1947.
The Rent Controller and Eviction Officer who acted as District Magistrate with in the connotation of the said term under the said Act, about which there is no dispute, granted the permission and rejected the contentions of the tenant.
In the order grant ing the permission, which order.
is dated February 27, 1980, the Rent Controller and Eviction Officer noted that the landlord was ready to give the newly constructed shops to the tenants on a reasonable rent.
Taking into account all relevant facts and circumstances including the aforesaid fact of the assurance cure undertaking given by the land lord, the permission to evict the tenant was granted.
Against this decision all the tenants including the tenant herein filed revision petitions which were dismissed by the Commissioner, Rukhilkand and Division, Bareilly.
The tenants applied by way of further revision to the State Governor under Section 7 F of the said U.P. Rant Act of 1947.
In disposing of the revision 563 petitions, the Special Secretary, who disposed of the same in the name of the Governor of the State of U.P., noted that the landlord had given an undertaking to the tenants that they would be given newly constructed shops on standard rent and that during the period taken for construction, alterna tive accommodation would also be given to them.
Thereafter, the landlord filed a suit on the basis of the aforesaid permission for eviction of the tenant.
During the pendency of the suit, the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter re ferred to0 as 'the U.P. Rent Act of 1972") came into force.
The U.P. Rent Act of 1947 was repealed by sub,section (1) of section 43 of the U.P. Rent Act of 1972 save and except to the extent provided in the savings clause set out at subsec tion (2) of that section.
Some amendments were made to section 43(2) (rr) in the U.P. Rent Act of 1972 by the U .P.
Act of XXXIII of 1976, whereby the landlords who had on the basis of the permissions granted to them under section 3(1) of the U.P. Rent Act of 1947 instituted suits for the evic tion of their tenants were given the right to apply for eviction of their tenants straightaway if the permission granted to them under section 3(1) of the U.P. Rent Act of 1947 had been obtained on any ground specified in sub,sec tion (1) or subsection (2) of section 21 of the U.P. Rent Act of 1972.
Taking advantage of these provisions, the landlord filed an application for an order of eviction against the tenant on the ground that the permission had been obtained by the landlord on the ground specified in clause (b) of section 21(1) of the U.P. Rent Act of 1972 and hence, he was entitled to an order of eviction straightaway under section 43(2) (rr) of the U.P. Rent Act of 1972.
The Prescribed Authority dismissed the application of the land lord on the ground that the permission obtained by him was a conditional permission and it could not come into operation unless the landlord had complied with the offer made by him before the Rent Controller and Eviction Officer, namely, to make available to the tenant an alternative shop.
It was held by the Prescribed Authority that till that condition was satisfied by the landlord, he could not claim the evic tion of the tenant under section 43(2) (rr) of the U.P. Rent Act of 1972.
Against this order, the landlord preferred the aforesaid writ petition which was disposed of by the learned Single Judge of the High Court by the impugned judgment.
The learned Judge took the view that the Prescribed Authority was bound to allow the application of the landlord under section 43(2) (rr) of the U.P. Rent Act of 1972 and order eviction.
It was held by the learned Judge that the ground on which permission was granted by the Rent Controller and Eviction Authorities under the U.P. Rent Act of 1947 fell within clause (b) of sub section (1) of section 21 of the U.P. 564 Rent Act of 1972 and hence, the Prescribed Authority under the Act of 1972 had no jurisdiction to embark upon any fresh enquiry as to the nature of the permission.
It was held by the learned Judge that the finding of the Rent Control authorities was that the building was in a dilapidated condition and required demolition and hence, the Prescribed Authority had no jurisdiction to impose any condition before granting an eviction order.
It was held by him that the Prescribed Authority had failed to exercise its statutory duty to order the eviction of the tenant.
The learned Single Judge directed the Prescribed Authority to pass an order of eviction against the tenant.
It is this judgment of the learned Single Judge which is impugned before us by Shri Parmod Swaroop, learned counsel for the appellant.
Learned counsel for the appellant submitted that the decision of the prescribed Authority to decline the prayer for eviction made by respondent No. 2 was justified in view of the undertakings given by respondent No. 2 when the permission to file a suit for eviction was given under the U.P. Rent Act of 1947 and the High Court was in error in upsetting the decision of the Prescribed Authority.
It was, on the other hand, contended by Mr.Mehrotra, learned counsel for respondent No. 2 that in view of the provisions of section 43(2) (rr) of the U.P. Rent Act of 1972, the Pre scribed Authority had no jurisdiction to go behind the permission and was bound to give an order for eviction unconditionally as held by the High Court in its impugned judgment.
Although the judgment of the Prescribed Authority, which was set aside by the High Court, is not before us, it appears clear from the impugned judgment that the Prescribed Authority took the view that the permission granted to respondent No. 2 to file the suit for eviction was a condi tional one and was operative only on the performance of the condition incorporated in the undertaking given by the landlord.
We are of the view that the entire argument before us proceeds to a large extent on a misapprehension.
However, before dealing with the rival submissions, we propose to refer to the relevant provisions of the aforestated two Acts very briefly.
U.P. Rent Act of 1947 was a temporary measure enacted with the object of continuing during a limited period the powers to control the letting and the rent of residential and non residential accommodation and to prevent the evic tion of tenants from the same.
The relevant portion of sub section (1) of section 3 of that Act runs as follows: 565 "3.
Restrictions on eviction.
(1) Subject to any order passed under sub section (3) no suit shall, without the permis sion of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds:" Thereafter, clauses (a) to (g) set out the grounds on which a suit for eviction could be filed without the permission of the District Magistrate.
Sub section (2) of section 3 pro vides for an application for revision against the order of the District Magistrate granting or refusing the grant of permission to file a suit for eviction of a tenant to the Commissioner.
Sub section (4) provides that the order of the Commissioner made in such revision application as set out above, shall be subject to any order passed by the State Government under section 7F of that Act.
Sub section (d) of section 2 of the U.P. Rent Act of 1947 gives an inclusive definition of the term "District Magistrate" ,red states that the said term would include an officer authorised by the District Magistrate to perform any of his functions under that Act.
The U.P. Rent Act of 1972 was enacted to make provisions in the interest of the general public for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in the urban areas.
Section 21 of this Act provides for release of a building under occupation of the tenants, that is, very briefly, for the eviction of tenants from the buildings under tenancy and also inter alia prescribes grounds on which such eviction can be ordered.
It may be mentioned that eviction of tenants is not permitted except on prescribed grounds.
Section 43 of the U.P. Rent Act of 1972 provides for repeal and savings.
Under sub section (1) of that sec tion the U.P. Rent Act of 1947 is repealed.
The relevant portion of sub section (2) of section 43 of the U.P. Rent Act of 1972 which is in the nature of a savings provision runs as follows: "43 Repeal and savings.
(1) x x x x (2) Notwithstanding such repeal X X X (rr) where any permission referred to in section 3 of the 566 old Act has been obtained on any ground speci fied in subsection (1) or sub section (2) of section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub section, after the commencement of this Act, whether or not a suit for the eviction of the tenant has been instituted, the landlord may apply to the prescribed authority for his eviction under section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the pre scribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under section 22".
The provisos to the clause are not relevant for our purpose.
The main contention of the learned counsel for respond ent No. 2 before us was that in view of the provisions of clause (rr) of sub section (2) of section 43 of the U.P. Rent Act of 1972, once the permission to file the suit for eviction was granted by the authorities concerned under the U.P. Rent Act of 1947 and that permission was on a ground specified in sub section (1) or sub section (2) of section 21 of the U.P. Rent Act of 1972, it was not open to the Prescribed Authority before which the application for evic tion was filed to reconsider the same.
The Prescribed Au thority, in the present case, has tried to analyse that permission and declined to grant the decree for eviction on the basis that the permission was conditional and the land lord was not willing to carry out those conditions.
In our view, the question of the authority under the U.P. Rent Act of 1947 having imposed any condition, does not arise at all.
A plain reading of the order of the Rent Controller and Eviction Officer, Bijnor as well as the orders of the Com missioner in revision and that of the State Government makes it clear that the permission given to the landlord to file the suit was not subject to any condition at all.
At the same time, the judgment of the Rent Controller clearly shows that one d the circumstances which constituted the basis for the grant of the permission to file the ,suit for eviction was that the landlord gave an assurance cum undertaking to give newly constructed shops to the tenants sought to be evicted including the tenant before us and that the landlord also gave a similar assurance to give alternative accommoda tion to the tenant during the period which would be taken in completing the new construction.
As we have already pointed out, the petition for permission to file a suit, flied before the Rent Controller by the landlord, in terms, con tained an 567 assurance cum undertaking that the landlord would give the newly constructed shops after the new shops were constructed to the tenants sought to be evicted on a reasonable rent.
It appears that the offer to provide for alternative accommoda tion during the period when the new construction was coming up was made by the landlord in the course of the hearing before the said Eviction Officer, Bijnor.
The revision petition against that said order was dismissed by the Com missioner, Rukhilkhand Division, as we have already pointed out earlier.
The order passed under section 7F of the U.P. Rent Act of 1947 by the State Government also dismissed the revision petition preferred by the tenant to the State Government.
The order of the State Government which was passed on behalf of the Governor of the State by the Special Secretary, however, clearly notes that the landlord had given an undertaking to the tenants that they would be giving the newly constructed shops to them on standard and that during the period taken up in completing the new con struCtion, alternative accommodation would also be given to them.
However, no condition in this connection was imposed by the State Government on the permission to file the suit for eviction.
Under these circumstances, we propose to proceed on the assumption that the High Court was justified in coming to the conclusion that the Prescribed Authority under the U.P. Rent Act of 1972 had no jurisdiction to go behind the permission granted by the relevant authorities under the U.P. Rent Act of 1947 for the filing of the eviC tion suit.
However, it appears to us that the High Court was, with respect, in error in not taking into account the undertakings cumassurance given by the landlord to the tenant in his application for permission to file a suit as well as in the course of the hearing before the aforemen tioned authorities.
We do not find anything in the provi sions of seCtion 43(2) (rr) of the U.P. Rent Act of 1972 which would enable the landlord to evade his duty to comply with the undertakings cum assurances given by him.
These undertakings cum assurances givenby the landlord certainly formed part of the basis on which the permission to file the suit for eviCtion was unconditionally given to him.
It is but fair that the court should see to it that the tenant is not deprived of the benefit of the undertakingscum assur ances.
In fact, no good reason has been shown as to how the landlord can justly claim that he is no longer bound by the undertakingscum assurances given by him as set out earlier.
In these circumstances, we set aside the order of the High Court and pass the following order in its place: (1) We direct that the Prescribed Authority, Nagina, District Bijnor, to pass an order of eviCtion against the appellant tenant before us but the ' Prescribed Authority will give the necessary directions or 568 orders to respondent No. 2 landlord to provide alternative accommodation to the appellant during the period when the new construction is coming up and also pass appropriate orders for ensuring that after the new construction is completed, a comparable shop is given to the appellant herein.
(2) In order not to delay the construction of the new shops, the Prescribed Authority may provide that, in case the landlord fails to or is unable to provide alternative accommodation to the appellanttenant during the period when the new construction is being completed, he shall pay a certain sum as fixed by the Prescribed Authority per month to the appellant tenant which would be reasonably adequate to enable that tenant to obtain alternative accommodation for that period.
For the aforesaid purpose, the Prescribed Authority may give such directions as it may think fit.
Before parting with the matter, we may refer to two decisions which were cited before us.
The first of these is the decision of a Full Bench of the Allahabad High Court in Asa Singh vs B.D. Sanwal & Ors., AIR 1969 All. 474.
The Full Bench of that High Court inter alia held in that case that while granting permission under section 3 of the U.P. Rent Act of 1947 the District Magistrate was bound to consider also the need of the tenant for the accommodation, if such a case is set up by the tenant.
This case was cited by the learned counsel for the tenant.
Learned counsel for respond ent No. 2, on the other hand, cited the decision of another Full Bench of the Allahabad High Court in Bansilal Sahu vs The Prescribed Authority & Anr., AIR 1980 All. 194 which, very briefly stated, laid down that the Prescribed Authority under the U.P. Rent Act of 1972 is bound while acting under clause (rr) of section 43(2) of the said Act, irrespective of the occurrence of subsequent events, to order eviction according to the permission granted by the Prescribed Au thority under section 3 of the U.P. Rent Act of 1947.
In our view, it is not necessary for us to enter into a discussion of either of the authorities because they do not touch upon the question which has arisen before us, namely, enforcing the undertakings cumassurances given by the land lord in obtaining the permission under section 3 of the U.P. Rent Act of 1947.
The Appeal is allowed to the extent aforestated.
Looking to the facts and circumstances of the case, there will be no order as to costs.
R.N.J. Appeal allowed.
| The prosecution case was that a mob Of 40 50 persons including the appellant, formed an unlawful assembly with the common objects of dismantling the hut of R, of setting fire to it and committing assault, if resisted; they assaulted some persons, and the appellant ordered one Budi to set fire to the hut and Budi set fire to it with the result that it was burnt down, Twenty two persons including the appellant and Budi, were sent up for trial.
The Sessions judge found that all of them formed an unlawful assembly with the common objects of dismantling the hut and committing assault on remonstrance, but that there was no common object to set fire to the hut and the act of incendiarism was an isolated act of some members of the unlawful assembly.
He found that the appellant had given the order to Budi to set fire to the hut and Budi had set fire to it in consequence of the abetment.
The Sessions judge convicted the accused persons under sections 147, 148 and 323 of the Indian Penal Code.
Budi was further convicted under section 436 and the appellant under section 436 read with section 109 of the Indian Penal Code.
On appeal the High Court set aside the conviction of Budi under section 436 holding it not proved that he had set fire to the hut.
The High Court upheld the conviction of the appellant under section 436 read with section :cog holding that he had given the order to set fire to the hut and that it was actually set on fire by one of the members of the unlawful assembly.
The appellant challenged his conviction under section 436 read with section 109 on the ground that it was not established that the person who set fire to the hut had done so in consequence of the order of the appellant Held, that the appellant was rightly convicted under section 436 read with section 109 of the Indian Penal Code.
On the findings given in the case it must be held that the person who set fire to the hut was one of the members of the unlawful assembly and that he did so in consequence of the order of the appellant.
Raja Khan vs Emperor, A.I.R. 1920 Cal. 834 and Umadasi Dasi vs Emperor Cal. 112, referred to.
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