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11 7 of 1958.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
R.K. Garg, M. K. Ramamurthi section C. Agarwala and D. P. Singh, for the petitioners.
The respondent did not appear.
306 1961 August 29.
The Judgment of the Court was delivered by S.K. DAs, J.
This is a writ petition oil behalf of the Bihar State Mukhtars ' Association, Patna and the Vice President and the General Secretary thereof.
The petition has been heard exparte as there, has been no appearance on behalf of the Chief Justice and Judges of the Patna High Court who were cited as respondents to the petition.
The petitioners contend that certain rules of the Patna High Court made as far back as 1922 under s.11 of the (Act XVIII of ' 1879), hereinafter referred to as the Act, in respect of the functions.
, powers and duties of Mukhtars practising in the subordinate courts are now invalid and void, because they contravene the fundamental right of the petitioners guaranteed under article 19(1)(g) of the Constitution of India and are not saved by cl.
(6) thereof.
The petitioners have, in particular, challenged the validity of r. 2 made by the said High Court under section 11 of the Act and incorporated in Chapter III, Part VII of the General Rules and Circular Orders of the High Court of Judicature at Patna (Civil), 1922.
The petitioners pray that an appropriate writ, direction or order be issued by this Court declaring that r. 2 aforesaid is unconstitutional and there fore, void and inoperative.
We shall presently read the rule ; but before we do so a few facts which are not in dispute may be stated.
The petitioners state that the Bihar State Mukhtars ' Association was formed some 30 years back with the object of generally protecting the interests of the Mukhtars in the State of Bihar practising in the courts subordinate to the High Court of Patna within the meaning of section 3 of the Act.
At its various annual conferences the said Association passed resolutions to move the high Court for the removal of the restriction imposed by r. 2 aforesaid on the right of Mukhtars practising in 307 subordinate civil courts.
The High Court did not remove the restriction.
On July 27, 1958 at an emergent Executive Committee meeting of the Association it was.
resolved to move ' the Supreme Court under article 32 of the Constitution.
The present writ petition has been filed in pursuance of that resolution.
The enrolment of Mukhtars is made under certain provisions of the Act to which a reference must now be made Under s.3 of the Act "a subordinate Court" means all courts subordinate to the High Court including courts of Small Causes established under Act IX of 1850 or Act XI of 1865.
"Legal practitioner" means an advocate, vakil or attorney of any High Court, a pleader, Mukhtar or revenue agent.
Section 6 of the Act empowers the High Court to make from time to time rules consistent with the Act in respect of certain matters including inter alia the qualifications, admission and certificates of proper persons to be Mukhtars of the subordinate courts.
It appears that by a rule made under section 6 of the Act, the High Court of Patna laid down that any person who shall produce a certificate from a committee constituted by the High Court that he has passed an examination in the subjects prescribed from time to time by the High Court for the mukhtarship examination may be admitted.
as a Mukhtar to practise in courts subordinate to the High Court.
Rule 10 laid down the subjects in which the examination was to be held.
This examination was known as the Mukhtarship examination.
It was abolished some time in the year 1947 48.
Under section 7 of the Act the High Court made certain rules for the grant of certificates to Mukhtars who had passed the necessary examination for admission as prescribed by the rules referred to above.
Section 7 also provided for annual renewal of such certificates.
The argument of learned advocate for the petitioners is rested.
mainly on the pro.
visions of section 9 and they must be quoted in full, 308 "Every mukhtar holding a certificate issued under section 7 may apply to be enrolled in any Civil or Criminal Court mentioned therein and situate within the same limits ; and, subject to such rules as the High Court may from time to time make in this behalf, the presiding Judge shall enroll him accordingly; and thereupon he may practise as a mukhtar in any such Civil Court and any Court subordinate thereto, and may (subject to the provisions of the Code of Criminal Procedure) appear, plead and act in any such Criminal Court and any Court subordinate thereto.
" Section 10 says in effect that except as provided by the Act or any other enactment t for the time being in force, no person shall practise as a Mukhtar in any Court unless he holds a certificate issued under s.7 and has been enrolled in such court or in some court to which it is subordinate.
Then come,% section 1 1 under which the impugned rule was made.
This section is in these terms.
"Notwithstanding anything contained in the Code of civil Procedure, the High Court may, from time time, make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtars practising in the subordinate courts and, in the case of a High Court not established by Royal Charter, in such Court.
" The High Court of Patna made a number of rules defining the functions, powers and duties of Mukhtars practising in the subordinate courts.
One of these rules is r. 2 which is 'in these terms.
"Rule 2: A Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature , and.
effect of his application or to offer any legal argument or to examine any witness without the leave of the Court specially given.
" 309 The argument of learned Advocate for the petitioners is 'this.
He has submitted that s.9 of the Act gives every Mukhtar holding a certificate issued under s.7 the right to apply to be enrolled in any Civil or Criminal Court subordinate to the High Court and on enrollment in accordance with the rules , he has the right to practise as a Mukhtar in any Civil Court and in 'Courts subordinate thereto and ' has further the right to appear, plead and act in any Criminal Court.
This right of practice learned Advocate for the petitioners has contended, cannot be curtailed and section 11 which empowers the High Court to Make rules declaring what shall be deemed to be the functions, powers and duties of the Mukhtars practising in the subordinate courts does not empower the High Court to make a rule which curtails the right given by s.9.
His argument further is that the impugned rule curtails the right of a Mukhtar to, practise in the Civil Courts inasmuch as it says, that a Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature and effect of his application or to offer any legal argument or to examine any witness without the leave of the court specially given.
He has contended firstly, that the rule is in excess; of the rulemaking power under section 11 and secondly, is An unreasonable restriction on the right guaranteed under article 19(1)(g) of the Constitution.
The simple question for decision really is this: is the impugned rule in excess of the powers given to the High Court under section 11 of the Act ? If the rule is intra vires the Act, then clearly enough there has been no violation of any, fundamental right of the petitioners.
The right of the petitioners to practise in the subordinate court a was create d by the act.
In the arguments before us there was no challenge to the constitutional validity of section 11 of the Act as permitting.
an unreasonable restriction of a guaranteed right, if on a proper construction that section enabled the High Court to regulate the right 310 of practice of Mukhtars.
The complaint before us was that the impugned r. 2 was not justified by section 11 of the Act.
Therefore, the only question which we need consider is whether the impugned rule is in excess of the authority given by section 11 of the Act.
It seems to us that the impugned rule is clearly within that authority.
The learned Advocate for the petitioners has.
sought to make a distinction between the right to practise as given by section 9 and the functions, powers and duties as mentioned in section 1 1.
Relying on the majority decision in Aswini ' Kumar Ghosh and another vs Arabinda Bose & another(1) he has submitted that the right to practise means the right to appear and plead as well as to act on, behalf of suitors in the subordinate courts; the power of the High Court to make rules under s.1 1 of the Act as respects the functions, powers and duties of Mukhtars practising in the subordinate courts merely means that the High Court may give effect to the right given under section 9 by making rules, but it cannot curtail that right ; when therefore the High Court made the impugned rule restricting the right of Mukhtars to plead in civil courts, it did something in excess of the power given by section 11.
We are unable to accept this line of argument as correct.
Sections 9 and 1 1 of the Act must be read together and it would be wrong to treat the right to practise given by section 9 as.
dissociated from the functions, powers and duties of Mukhtars referred to in section 1 1.
The learned Advocate for the petitioners is reading the two sections as though one section gives an absolute right and the other section merely empowers the making of rules to effectuate that right.
That, we do not think, is a proper reading of the two sections.
It is worthy of note that under section 9 itself a distinction is made between the right of a Mukhtar to practise in civil courts and his right to appear, plead and act in any criminal.
court.
In express terms section 9 gives every (1) ; 311 Mukhtar the right to appear, plead and act in any criminal court ; it does not, however, give such an unlimited right in a civil court.
On the contrary, it merely says that on enrolment a Mukhtar may practise in any civil court, but under section 11 the High Court may make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtars practising in the subordinate courts.
It is clear to us that in declaring what shall be the functions and powers of mukhtars practising in the subordinate courts, the High Court can so delimit them as to regulate the right of practice.
It will be wrong to treat the functions and powers as dissociated from the right to practise.
The right to practise 'Must depend on the functions and powers.
It is also worthy of note that the expression used in section 11 of the Act is much wider than the expression used in section 15 of the Indian Bar Council Act, 1926, (Act XXXVIII of 1926), which gives the Bar Council the power to make rules to provide for and regulate the rights and duties of Advocates of the High Court.
We do not think that the majority decision in Aswini Kumar Ghosh vs Arabinda Bose (1) is of any assistance to the petitioners.
That decision depended on the interpretation of section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951.
That section provided that "notwithstanding anything contained in the Bar Councils Act or any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court, every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of ' that High Court".
It was held by the majority that a rule made by a High Court which denied to an Advocate of the Supreme Court the right to exercise an essential part of his function, by insisting oil a, dual agency on the Original Side was much more than a rule (1) 312 of practice and constituted a serious invasion of his statutory right to practise and the power of making such a rule, unless expressly reserved, was repugnant to the right conferred by section 2 aforesaid The point to be noticed is that the majority held that unless the power was expressly reserved by the statute, a rule could not be made repugnant to the right conferred by section 2 of the.
Supreme Court Advocates (Practice in High Courts) Act, 1951.
If it be held that sections 9 and 1 1 of the Act must be read together and functions and powers mentioned in s.11 are not dissociated from the right to practise mentioned in a. 9, then it is clear enough that section 1 1 expressly reserves the power of the High Court to make rules declaring what shall be the functions, powers and duties of Mukhtars practising in the subordinate courts.
If this be the correct interpretation of sections 9 and 11 of the Act, then the principle laid down by the majority in Aswini Kumar Ghosh vs Arabinda Pose(,) is if no assistance to the petitioners in the present case.
For the reasons given above, we hold that r.2 of the rules made by the High Court under section 11 of the Act is not in excess of the rule making power and the petitioners cannot complain of any violation of their fundamental right to practise the profession to which they have been enrolled under the provisions of the Act.
The petition fails and is accordingly dismissed.
As there has been no appearance on behalf of the respondents, there will be no order for costs.
Petition dismissed.
| Mr. A, an Advocate on Record of this Court, wrote letters soliciting clients.
One of such letters, a post card was addressed to the Law Minister of Maharashtra and ended as follows, "You might have got an Advocate on Record in this Court but I would like to place my services at your disposal is you so wish and agree".
To the Registrar of this Court he admitted having written the post card, but before the Tribunal stoutly denied having done so.
The Tribunal found on evidence that the Advocate had written the post card.
When the matter came up before the court, the Advocate at first denied having written the post card but on being pressed by the court to make a true statement admitted that he had written the postcard and had admitted that before the Registrar.
^ Held, that it is against the etiquette of the Bar and its professional ethics to solicit briefs from clients and an Advocate who does so must be guilty of grossly unprofessional conduct.
There can be no doubt in the instant case that the Advocate concerned had written the post card soliciting briefs.
It makes no difference whether he did so in ignorance of this elementary rule of the profession or in disregard of it, since his conduct in court showed that he had no regard for truth and, consequently, he deserved no sympathy of the court and must be suspended.
|
n No. 43 of 1976.
S.C. Agarwal for the Petitioners.
912 L.N. Sinha, Sol Genl.
and B. Datta for Respondents.
The Judgment of the Court was delivered by BEG, C.J.
The petitioners before us are employees of the Forest Research Institute and Colleges Dehra Dun in the posts designated as Computers.
Their grievance is that they should be treated as Research Assistants Grade II and given the same scale of pay and other conditions of service as are applicable to Research Assistants Grade II.
The respondents, Union of India and the President of the Forest Research Institute deny that the petitioners are entitled to be treated as Research Assistants Grade II.
The petitioners rely upon certain alleged admissions on behalf of the oppo site parties, on certain classifications of Computers in the past, prior to the recommendations the Third Pay Commission 1973 as well as on the last mentioned report of the Central Pay Commission.
Furthermore, learned counsel has invited Union of India and another whereupon a Writ Petition by Computers, they were shown as having been given identical scales of pay with the Research Assistants Grade II.
This decision however, does not deal with any controversy as to the correct classification of computers in comparison with Research Assistants Grade II.
All we need say is that this case deals with the position under the Report of 1959 of ' the Second Pay Commission which has no bearing on the position which follows from the Report of the Third Pay Commission of 1973.
Moreover, it is evident that even at that time Research Assistants Grade II and Computer were shown as separate classes even though their pay scales and the revised pay scales were shown as identical.
Thus the claim of the petitioners is that this Court should not only include the Computers amongst Research Assistants Grade II, which is not borne out even from the Report of the Second Pay Commission, but go further and equate their pays, so that.
even though they belong to different classes, their scales of pay may be identical.
We are afraid this is a matter which lay entirely within the sphere of the func tions of the Pay Commission.
This Court cannot satisfactori ly decide such disputed questions on the salender material on which the learned counsel for the petitioner relies in order to displace what appears to us to be, prima facie, the effect of the Report of the Third Pay Commission of 1973.
This report shows that Computers not only belong to a separate class of their own but received less pay than Research Assistants of Grade II.
Learned Counsel for the petitioner 's tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, which deals with "Scientific Services" (specifi cally mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and Colleges are mentioned in paragraphs 58 onwards.
It seems to us to be erroneous to attempt to place Computers in Chapter XV, which deals with specified "Scientific Services" where Computers are not mentioned, or in Chapter XXI, which also does not mention Corn 913 puters at all.
Learned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with the Forest Research Institute in Chapter XXI do not mention Computers.
It does not follow from this that Computers necessarily belong to the class into which the petitioners want to get in without showing what the criteria and func tions of persons entitled to be treated as Research Assist ants of Grade II are as compared with the Computers who, prima facie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions.
Indeed, everyone working in a research institute could, in some way, be said to be assisting in research.
We think that these are questions entirely unfit for determination upon a peti tion for a Writ for the enforcement of fundamental rights.
It requires: firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifica tions for each class.
The Pay Commission had done this elaborately.
The learned Solicitor General has invited our attention to the case of Union of India vs G.R. Prabhavalkar & Ors.
reported in ; , where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226.
We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercis ing its writ issuing jurisdiction.
The learned counsel for the petitioners has tried to take us at some length into the material on which he as sails the view taken by the opposite parties.
We are unable to agree that, on the material placed before us, we can accept the petitioners ' interpretation of facts to which our attention was drawn.
We are unable to consider other mate rial also to which our attention was attempted to be drawn because, on the basis of the materials shown to us, we are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed before us.
Finally, learned counsel for the petitioners pleaded that we may permit him to raise this matter before an Admin istrative or Service Tribunal if and when one is constitut ed.
It is not necessary for us to give him any permission to do that.
We may however observe that the petitioners are at liberty to pursue other remedies, including those which may be available to them if any such Tribunal is set up in future.
We want to make it clear that the question whether there is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can, be laid down.
Moreover, a dis crimination, which involves the invocation of Article 14, is not necessary covered by Article 16.
We do not propose to discuss here the differences between Articles 14 and 16, because we think that, even the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately.
The validity of that classification cannot, 914 we think, be displaced by the kind of evidence relied upon on behalf of the petitioners.
And, until that classifica tion is shown to be unjustified, no question of violating Article 16 can arise.
We, therefore, leave the petitioners to other means of redress if they still feel aggrieved.
The result is that we dismiss the Writ Petition, but make no order as to costs.
S.R. Petition dis missed.
| The appellant was tried by the Sessions Judge with the aid of assessors for an offence under section 409, I.P.C. for misappropriating certain sums of money received as promoter of a Company from three ,different persons for the purpose of allotment of shares and omitted to be brought into the Company after it was formed, and also for an offence under section 477 A, I.P.C. by the same Sessions Judge with the aid of a jury for the offence of falsifying a minute book, the same persons acting both as assessors and jurors.
They returned a verdict of not guilty in respect of both the charges.
The Sessions Judge, disagreeing with the verdict of the jury under section 477 A, referred the matter to the High Court under section 307 of the Code of Criminal Procedure.
Disagreeing also with the opinion of the assessors in respect of the charge under section 409, I.P.C. he held the appellant guilty and sentenced him to 4 years ' rigorous imprisonment.
Against this conviction the appellant appealed to the High Court.
Both the reference under section 307 of the Code of Criminal Procedure and the appeal were heard together by the High Court which confirmed the appellant 's conviction under section 409 and the sentence passed by the Sessions Judge and disagreeing with the verdict of the jury it held him guilty under section 477 A and sentenced him to two years ' rigorous imprisonment.
On appeal by special leave to the Supreme Court: Held (i) that the contention that when the Sessions Judge disagreed with the verdict of the jury and the opinion of the assessors, 1036 he should have referred the whole case under section 307 of the Code of Criminal Procedure to the High Court and not merely that part of it which related to the charge under section 477 A, I.P.C. was without force because the Sessions Judge had contravened no provision of law and committed no illegality in deciding the case which related to the charge under section 409, I.P.C.
That section 307, Code of Criminal Procedure applies in terms only to trials by a jury and the Sessions Judge had no power under that section to refer cases tried with the aid of assessors for the decision of the High Court.
In the present case there was the further fact that both the appeal against the conviction under section 409, I.P.C. and the reference under section 307 of the Code of Criminal Procedure in respect of the charge under section 477 A were disposed of by the same judgment; (ii)that the contention that the appellant 's true status was that of a servant and not that of an agent and that he should have been tried not under section 409, I.P.C. but under section 408, I.P.C. was also without force inasmuch as his status was that of an agent and not that of a servant in view of his duties as Secretary of the Society.
The distinction between the two is this a servant acts under the direct control and supervision of the master, and is bound to con form to all reasonable orders given to him in the course of his work.
An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal; (iii)that the contention that there had been violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under section 409, I.P.C. and one under section 477 A was also without force as the case was governed by section 235 of the Code of Criminal Procedure as the several offences under section 409, I.P.C. and section 477 A, I.P.C. arose out of the same acts and formed part of the same transaction.
Emperor vs Haria Dhobi, (A.I.R. 1937 Patna 662), Pachaimuthu In re, ([1932] I.L.R. , Emperor vs Lachman Gangota, (A.I.R. 1934 Patna 424), Emperor vs Kalidas, ([1898] , Emperor vs Vyankat Sing ([1907] and Emperor vs Chanbasappa (A.I.R. , referred to.
|
N: Criminal Appeal No. 543 of 1976.
Appeal by special leave from the judgment and order dated the 6th May 1975 of the Rajasthan High Court in D.B. Criminal Jail Appeal Nos.
277, 413 to 416 and 918 of 1971.
Badri Das Sharma for the Appellant.
Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave on behalf of the State of Rajasthan is directed against the judgment of the Rajasthan High Court acquitting the two respondents, Shrimati Kalki alias Kali and her husband, Amara (alongwith four other co accused).
Respondent Kalki was convicted under Section 302 and Section 148 of the Penal Code and sentenced to imprisonment for life and for rigorous imprisonment for two years, respectively.
The five other accused persons including respondent, Amara, were convicted under Section 302 read with Section 149 and under Section 147 of the Penal Code, and each of them was sentenced to imprisonment for life and to one and a half years rigorous imprisonment respectively.
The material facts of the prosecution case were that there was a land dispute between Nimba (P.W.6) father of the deceased, Poona, on the one hand, and respondent Amara and the members of his family, on the other.
On July 17, 1970 at about sunset the accused persons of whom respondent Kalki was armed with an axe and respondent, Amara with a dharia, came to the house of the deceased.
At that time the deceased was inside his hut with his wife Mooli (P.W.1).
Amara called Poona.
Poona came out followed by his wife Mooli, when he was knocked down by Amara and Rama whereupon Kalki gave him blow with the axe on the neck.
Poona met with instantaneous death.
Mooli (P.W.1) raised an outcry when Geli, mother of the deceased (P.W.2) who had been at some distance from the hut came running to the place of occurrence and saw the assailants leaving the place.
506 3.
Nimba lodged a report at the police station at Nana.
Police registered a case.
In due course the case was sent to, and tried by, the Session Judge who convicted and sentenced the six accused persons including the two respondents as stated above.
This Court granted special leave to appeal only against the two respondents and refused it as against the other four.
The question before us is whether the two respondents or any of them caused the death of Poona.
There is no dispute that Poona met a homicidal death.
The High Court has set aside the Order of conviction and sentence passed by the Session Judge on the grounds (1) that P.W.1 the widow of the deceased "is. a highly interested witness, in as much as, she is the wife of the deceased and there was an enmity between the deceased and the accused on account of the dispute about the agricultural land", and (2) "that there are material discrepancies in her statement".
We have been led through the evidence of P.W. 1, the only eye witness in the case, of P.W.2, Geli, who says that she saw the respondents leaving the place of occurrence with the weapons in their hands, and of P.W.5 the Medical Officer, who held the Post Mortem examination on the deceased.
His evidence fully supports the evidence of P.W.1, who deposed that respondent Kalki gave a blow on the neck of the deceased with an axe.
P.W. 5 found one incised wound measuring 5" X 2" X 4" on the lateral side of the left side of neck.
On a perusal of the evidence of these witnesses, we do not have the least doubt in our mind that it was respondent Kalki who gave an axe blow on the neck of the deceased and that respondent Amara came along with his wife with a dharia with the common intention of causing the death of Poona.
In fact it was he who called out Poona from inside the hut, and felled down and facilitated the murder of Poona by his wife, Kalki.
As mentioned above the High Court has declined to rely on the evidence of P.W.1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence.
With respect, in our opinion, both the grounds are invalid.
For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence.
True, it is she is the wife of the deceased; but she cannot be called an 'interested ' 507 witness.
She is related to the deceased.
'Related ' is not equivalent to 'interested '.
A witness may be called 'interested ' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished.
A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested '.
In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents.
The second ground on which the High Court refused to place reliance on the evidence of P.W. 1 was that there were "material discrepancies".
As indicated above we have perused the evidence of P.W. 1.
We have not found any "material discrepancies" in her evidence.
The discrepancies referred to by the High Court are, in our opinion, minor, insignificant, natural and not 'material '.
The discrepancies are with regard to as to which accused "pressed the deceased and at which part of the body to the ground and sat on which part of the body; with regard to whether the respondent Kalki gave the axe blow to the deceased while the latter was standing or lying on the ground, and whether the blow was given from the side of the head or from the side of the legs.
In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be.
These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like.
Material discrepancies are those which are not normal, and not expected of a normal person.
As indicated above we have not found any material discrepancies in the evidence of the P. W. 1. 7.
Learned counsel for the respondent submitted that the appeal involved only appreciation of evidence and this Court may not interfere with the findings of facts resulting from appreciation of evidence.
It is true that in an appeal under Article 136 of the Constitution this Court normally does not interfere with findings of facts arrived at by the High Court.
But when it appears that the findings of facts arrived at are bordering on perversity and result in miscarriage of justice, this Court will not decline to quash such findings to prevent the miscarriage of justice.
In our opinion the guilt of the two respondents has been established by the prosecution beyond reasonable doubt and their acquittal resulted in grave miscarriage of justice.
508 In the result we set aside the order of acquittal passed by the learned High Court and convict respondent Kalki alias Kali under section 302 of the Penal Code and respondent, Amara, under Section 302/34 of the Penal Code, and sentence each of them to suffer imprisonment for life.
The appeal is allowed.
The respondents are said to be on bail.
They shall surrender forthwith to serve out their sentences.
V.D.K. Appeal allowed.
| Respondent Kalki alias Kali and her husband Amara (along with four other co accused) were charged, convicted under section 302 I.P.C. and sentenced to life imprisonment.
While Kalki was also convicted and sentenced under section 148 I.P.C. for two years ' rigorous imprisonment, the other five accused were convicted and sentenced under section 147 I.P.C. for rigorous imprisonment for a period of one and a half years.
In appeal the High Court of Rajasthan acquitted all of them on the grounds (i) that P.W. 1, the widow of the deceased "is. . a highly interested witness, inasmuch as, she is the wife of the deceased and there was an enmity between the deceased and the accused on account of the dispute about the agricultural land" and (ii) "that there are material discrepancies in her statement".
This Court granted special leave to appeal only against Kalki and her husband and refused it as against the four.
Dismissing the appeal, the Court ^ HELD: 1.
It is true that in an appeal under Article 136 of the Constitution the Supreme Court normally does not interfere with findings of facts arrived at by the High Court.
But when it appears that the findings of facts arrived at are bordering on perversity and have resulted in miscarriage of justice, the Court will not decline to quash such findings to prevent miscarriage of justice.
[507 F G] 2.
Material discrepancies are those which are not normal, and not expected of a normal person.
In the depositions of witnesses there are always some normal discrepancies however honest and truthful the witnesses may be.
These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like.
There are no material discrepancies in the evidence of P.W. 1 so as to reject the evidence in its entirety.
[507 D E] 3.
"Related" is not equivalent to "interested".
A witness may be called "interested" only when he or she derives some benefit from the result of a 505 litigation; in the decree in a civil case, or in seeing an accused person punished.
A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested".
In the instant case.
P.W. 1 had no interest in protecting the real culprit, and falsely implicating the respondents.
[507 A B]
|
minal Appeal No. 50 of 1965.
Appeal by special leave from the judgment and order dated February 15, 1965 of the Bombay High Court in Criminal Revi sion Application No. 917 of 1964.
A. section R. Chari, O. P. Malhotra, V. N. Ganpule, P. C. Bhartari, and O. C. Mathur, for the appellants.
M. section K. Sastri and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
In this appeal by special leave against the judg ment of the High Court of Bombay in criminal revision application No. 917/64, the question that arises for decision is whether on the facts found by the courts below, the appellants were properly held to be guilty of all or any of the offences for which they have been convicted.
In the trial court there were as many as nine accused.
All the accused excepting accused Nos. 1 and 2 who are appellants 1 and 2 respectively in this Court, were, acquitted.
The prosecution case is as follows : The acquitted third ac cused was the owner of the jeep bearing registration No. BYF 5448.
Accused ,No. 2 is his father.
They are the residents of Malshiras.
On October 27, 1962, the appellants along with PW Rambhau Bhombe and one other, went in the jeep in question first to Phaltan which is about 33 miles away from Malshiras, from there to Rajale about seven miles away from Phaltan.
From Rajale they returned to Phaltan and from there to Malegaon.
They stayed for the night at Malegaon.
Next day they returned to Phaltan and finally to Malshiras.
During all this time, appellant No. 1 was driving the jeep.
On the way from Phaltan to Malshiras, about a mile and a half from Phaltan, the jeep struck one Bapu Babaji Bhiwarkar, as a result of which he sustained serious injuries.
The appellants put the injured person in the jeep and brought back the jeep to Phaltan where they approached PW Dr. Karwa for medical aid, but Dr. Karwa refused to treat the injured as it was a medico legal case.
He asked them to go to Government Dispensary.
The appellants instead of going to the Government Dispensary, drove straight to Malshiras.
On the way the injured died.
At Malshiras the appellants cremated his dead body.
At the time of the incident, the first appellant had 517 only a learner 's licence and no person having a valid licence for driving was by his side.
The courts below have accepted the above facts and on the basis of those facts, the trial court convicted the appellant No. 1 under section 304A IPC, section 3 read with section 112 of the Motor Vehicles Act and under section 89 of the same Act.
It convicted the second appellant under section 201 IPC, section 5 as well as under section 89 of the Motor Vehicles Act.
These convictions were affirmed by the learned Sessions Judge of Satara in appeal and by the High Court in revision.
The conviction of the first appellant under the provisions of the Motor Vehicles Act was not challenged before us, but we fail to see how the second appellant could have been convicted either under section 5 or under section 89 of the Motor Vehicles Act.
In convicting him under those provisions, the courts below appear to have overlooked the fact that he was not the owner of the jeep.
Nor was there any proof that he was in charge of the jeep.
Hence, his convictions under those provisions cannot be sustained.
The conviction of the appellant No. 2 under section 201 IPC de pends on the sustainability of the conviction of appellant No. 1 under section 304A IPC.
If appellant No. 1 was rightly convicted under that provision, the conviction of appellant No. 2 under section 201 IPC on the facts found cannot be challenged.
But on the other hand, if the conviction of appellant No. 1 under section 304A IPC cannot be sustained, then, the second appellant 's conviction under section 201 IPC will have to be set aside, because to establish the charge under section 201, the prosecution must first prove that an offence had been committed not merely a suspicion that it might have been committed and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear.
The proof of the commission of an offence is an essential requisite for bringing home the offence under section 201 IPC see the decision of this Court in Palvinder Kaur vs State of Punjab (1).
Therefore the principal question for decision is whether on the facts found, appellant No. 1 was rightly convicted under section 304A IPC.
On the material on record it is not possible to find out under what circumstances the accident took place.
The High Court in its judgment specifically says that "There are no witnesses whose evidence can establish rash and negligent driving on the part of accused No. 1.
" We may go further and say that there is absolutely no evidence to show that the accused was responsible for the accident.
The prosecution has not produced any evidence to show as to how the accident took place.
The High Court observed: (1) 518 'It is however, a fact conclusively established and not disputed before me that the accused No. 1 had only a learner 's licence at the material time.
It is not even suggested before me that accused No. 2 held a driving licence so that he could act as a trainer for accused No. 1.
In fact, there is no suggestion by the defence that there was a trainer by the side of accused No. 1.
Thus on the facts established, it is quite clear that at the material time, the jeep was driven by accused No. 1, who not only did not have a valid driving licence, but had only a learner 's licence.
The question for consi deration, therefore, is whether driving a jeep on a public road by a person, who does not know driving and is consequently unable to control the vehicle, is a rash and negligent act as contemplated by Section 304A IPC." The court answered that question in these words "The very fact that the person concerned holds only a learner 's licence, in my opinion, necessarily implies that he does not know driving and must be assumed to be incapable of controlling the vehicle.
If a person who does not know driving and is a consequently not able to control a car or a vehicle, chooses to drive a car or a vehicle on a public road without complying with the requirements of Rule 16 of Bombay Motor Vehicles Rules, he obviously does an act, which can be said to be rash and negligent, as contemplated by Sec.
304A IPC.
It is negligent because he does not take the necessary care of having a trainer by his side.
It is rash because it utterly disregards the public safety.
Prima facie it appears to me that driving a vehicle like a jeep or motor car on a public road without being qualified to drive, particularly in the absence of any evidence to show that the person concerned had the necessary experience and good control over the vehicle would amount to a rash and negligent act, as contemplated by Sec.
304A IPC.
" Assuming that the High Court was right in its conclusion that appellant No. 1 had not acquired sufficient proficiency in driving therefore he was guilty of a rash or negligent act in driving the jeep that by itself is not sufficient to convict him under section 304A IPC.
The, prosecution must go further and prove that it was that rash or negligent act of his that caused the death of the deceased.
Section 304A says "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable 519 homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act.
In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death.
There must be direct nexus between the death of a person and the rash or negligent act of the accused.
As mentioned earlier there is no evidence to show that it was rash or the negligent act of the accused that caused the death of the deceased.
Before referring to the decided cases, we would like to revert to prosecution evidence for finding out whether the High Court was right in its inference that the accused was novice in the matter of driving.
From the prosecution evidence itself it is clear that he drove the jeep to various places on October 27, 1962.
Then there was the evidence of PW Shankar Burmule, showing that he had seen accused No. 1 driving for about six months to a year.
The learned Judge of the High Court discarded his evidence with these observations : "In the present case, Mr. Jahagirdar relies on the evidence of Shankar Burmule, which is at Exh. 39, to contend that accused No. 1 had considerable driving experience.
Unfortunately the English notes of evi dence by the learned trial Magistrate do not indicate that the witness stated that accused No. 1 had driving experience, but the evidence recorded in Marathi undoubtedly indicates that the witness claims to have seen accused No. 1 driving for about six months to a year.
The witness seems to be a relation of accused No. 2, though not a near relation, and his word cannot be taken at par.
Moreover the admitted fact that at the material time accused No. 1 held only a learner 's licence itself indicates that no importance can be attached to the abovesaid statement of Shankar Burmule.
It is also urged that accused No. 1 did take the jeep from Malshiras to Phaltan and to some other places and that also would bear out the statement of Shankar Burmule.
All that I can say is that it was a sheer stroke of good fortune that accused No. 1 did not meet with any accident during his trip from Malshiras to Phaltan and some other places." With respect to the learned Judge we think this was not the proper way of appreciating evidence.
Conclusions must be based on the evidence on record.
PW Shankar Burmule has given material 520 evidence against the accused.
His evidence establishes an important link in the prosecution case.
He could not have been compelled to give that evidence if he was not a truthful witness.
The learned public prosecutor did not make any attempt in his reexamination to show that any portion of his evidence was untrue.
There is no presumption in law that a person who possesses only a learner 's licence or possesses no licence at all does not know driving.
For various reasons, not excluding sheer indifference, he might not have taken a regular licence.
The prosecution evidence that appellant No. 1 had driven the jeep to various places on the day previous to the occurrence is a proof of the fact that he knew driving.
There was no basis for the conclusion that it, was a sheer stroke of good fortune that he did not meet with any accident on that day.
Now let us turn to the decided cases.
Dealing with the scope of section 304A IPC, Sir Lawrence Jenkins observed in Emperor vs Omkar Rampratap(1) : "To impose criminal liability under section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another 's negligence.
It must be the cause causans, it is not enough that it may have been the cause sine qua non.
" That, in our opinion is the true legal position.
The scope of section 304A IPC came to be considered by this Court in Kurban Hussein Mohammedali Rangwalla vs State of Maharashtra(2).
In our opinion, the ratio of that decision governs the facts of the present case.
The facts of that case were : The appellant was the manager and working partner of a firm which manufactured paints and varnish.
The factory was licensed by the Bombay Municipality on certain conditions to manufacture paints involving a cold process and to store certain Specified quantities of turpentine, varnish and paint.
The factory did not have a licence for manufacturing wet paints but nevertheless manu factured them.
Four burners were used in the factory for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree.
While this unlicensed process was going on froth overflowed out of the barrel and because of heat varnish and turpentine, which were stored at a short distance caught fire, as a result of which seven workmen died.
The appellant was prosecuted and convicted under section 304A and section 285, IPC.
Hi, , appeal was summarily dismissed by the Bombay High Court.
This Court set aside the conviction under section 304A IPC, holding that (1) 4B.L.R. 679.
(2) ; 521 the mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the appellant responsible for the fire which broke out.
In the course of the judgment this Court observed that the cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though that circumstance was indirectly responsible for the fire which broke out; what section 304A requires is causing of death by doing any rash or negligent act and this means that death must be the direct or proximate result of the rash or negligent act.
On the basis of the facts of that case, this Court held that the direct and proximate cause of the fire which resulted in seven deaths was the act of one of the workmen in pouring the turpentine too early and not the appellant 's act in allowing the burners to burn in the particular room.
In the present case, we do not know what was the proximate cause of the accident.
We cannot rule Out the possibility of the accident having been caused due to the fault of the deceased.
The question whether appellant No. 1 was proficient in driving a jeep or not does not conclude the issue.
His proficiency in driving might furnish a defence, which a learner could not have, but the absence of proficiency did not make him guilty.
The only question was whether, in point of fact he was not competent to drive and his incompetence was the cause of death of the person concerned.
On behalf of the prosecution reliance was placed on the de cision of this Court in Juggankhan vs State of Madhya Pradesh (1), to which one of us was a party (Sikri, J).
The ratio of that decision does not apply to the facts of the present case.
In that ,case, it had been conclusively proved that the rash or negligent act ,of the accused was the cause of the death of the person concerned.
For the reasons mentioned above, we are unable to agree 'with the courts below that on the basis of the facts found by them the first appellant could have been held guilty under section 304A IPC.
We accordingly allow his appeal and acquit him of that offence.
From that finding, it follows that the second appellant could not have been convicted under section 201 IPC.
In the result, the second appellant 's appeal is allowed in full and he is acquitted of all the charges.
The first appellant 's appeal is allowed in part and his conviction under section 304A is set aside.
But his other convictions are sustained, namely, his convictions under section 3 read with section 112 of the Motor Vehicles Act and section 89 of the same Act, for which offences only a sentence of fine had been imposed upon him.
Appeal allowed.
| The General Manager of the appellant Corporation issued a notice on July 21, 1964 inviting applications for appointments, to two junior posts in the Corporation.
The respondent, who was an employee of the Corporation and claimed that he had a right to be promoted to one of the posts, filed a writ petition under article 226 of the Constitution challenging the notice on the ground that the Corporation had no power to issue it.
The High Court, following its earlier decision in Karnakar Mangesha Desai vs State of Mysore and other [1960](1) Mysore Law Journal 72), held that until regulations had been framed by the Corporation under section 45(2) (c) with the previous sanction of the State Government and this has admittedly not been done the Corporation could not appoint officers and servants and lay down their conditions of service.
On appeal to this Court by special leave.
HELD: Allowing the Appeal: section 14(2) expressly confers upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions and Section 19(1)(c) empowers it to provide for its employees suitable conditions of service.
Although the conjoint effect of ss 14(3)(b), 34 and 45(2)(c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under section 34 and the regulations, if any, framed under section 45(2)(c).
until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit.
[770 H: 771 A, B D].
There was no merit in the contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under section 12(c) expressly authorising him to issue it.
[771 F].
Dundee Harbour Trustees vs D. & J. Nicol, ; , 556, referred to.
|
Appeal No. 63 of 1952.
Appeal from the Judgment and Order dated 7th November, 1950, of the High Court of Judicature at Hyderabad (Siddique, Rao and Deshpande JJ.) in Civil Case No. 9 A 5 1 of 1950.
M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (G. N. Joshi and Ghulam Ahmad Khan, with them) for the appellants.
B. Somayya and Akbar Ali Khan (B. V. Subharayudu, with them) for the respondents.
December 9.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal which has come before us on a certificate granted by the High Court of Hyderabad under article 132 (1) of the Constitution is directed against a judgment of a Full Bench of that Court dated November 7, 1950, passed on a petition under article 226 of , the Constitution.
By this judgment the learned Judges of the High Court declared an Act, known as the Waliuddowla Succession Act of 1950, void under article 13(2) of the Constitution to the extent that it affected the 'rights of the present, respondents 1 to 12 who were the petitioners 'in the article 226 proceeding.
The object of the impugned Act, which received the assent of H.E.H. the Nizam as Rajpramukh of Hyderabad on April 24, 1950, was to put an end to the disputes that existed at the time regarding succession to the matrooka or personal estate of Nawab Waliuddowla ', 'a wealthy nobleman and a high dignitary of Hyderabad, and what, in substance, the Act provided was to dismiss the claims of succession to the said properties put forward by two of the alleged wives of the late Nawab, named Mahboob Begum and Kadiran Begum, and their children.
These two ladies as Well as their 406 children filed a petition before the Hyderabad High Court under article 226 of the Constitution challenging the validity of the Act mentioned aforesaid inter alia on the grounds that it conflicted with the petitioners ' fundamental rights guaranteed under articles 1419(1)(1) and 31(1) of the Constitution and praying for appropriate reliefs by way of declaration and writs of certiorari and prohibition.
The claim was resisted by Ameerunnissa Begum, an admitted wife of the late Nawab, and her children, and they are the persons who would primarily be benefited by the provisions of the impugned Act.
The High Court ,substantially accepted the contentions of the petitioners and declared the Act to be void so far as it affected them.
Against this decision the present appeal has been taken to this court by Ameerunnissa Begum and her children.
To appreciate the contentions that have been raised by the parties, a brief resume of the antecedent events leading up to the passing of the disputed legislation would be necessary.
Nawab Waliuddowla, who was one of the Paigah noblemen of Hyderabad and was at one time, the President of the Executive Council of the State, died at Medina on February 22, 1935, while on a pilgrimage to Hedjaz.
Besides extensive jagir properties appertaining to the Paigah which fetched him an annual income of nearly Rs. 1,36,000 he left behind him matrooka or personal estate of considerable value.
As regards the surviving relations of the Nawab, who could claim rights by inheritance to his estate, it is not disputed that Ameerunnissa Begum was one of the legaly wedded wives of the Nawab and that she and the five children which the Nawab had by her are entitled to their legitimate shares in the properties left by the deceased, There is also no dispute that the Nawab went through a legal marriage with a lady named Fatima Begum who is still alive.
It appears, however, that she left her husband soon after marriage and did not return to him any time thereafter.
During the period, which is material for our present purpose, the 407 only claim which she put forward against the estate of the Nawab was one for recovery of her dower debt &mounting to one lakh of rupees.
The whole dispute between the parties to this litigation really centered round the point as to whether the other two ladies, namely Mahoob Begum and Kadiran Begum,who are respectively respondents I and 5 in this appeal, were, the lawfully married wives of the late Nawab or were they merely in his keeping as.
kavases or permanent concubines? If there was no legal marriage between them and the Nawab, it is not disputed that their children, though admittedly begotten on them by the Nawab, would not be entitled to any share in the matrooka or personal estate left by the deceased.
, This dispute first arose before the Paigah Trust Committee whose duty it was to distribute the income of the Paigah estate amongst the heirs of the late Nawab.
In April, 1935, shortly after Ameerunnissa Begum, who had accompanied her husband to Mecca, returned to Hyderabad after the death of the latter, the Committee addressed letters to Ameerunnissa Begum, Fatima Begum and also to Mahboob Begum enquiring about the wives and children left, by the Nawab.
No letter, it seems, was sent to Kadiran Bi.
On a consideration of the replies given by the several addressees and also of the statements made on their behalf at the hearings before the Committee, the latter submitted a report to the Executive Council of the Nizam.
The Paigah Committee proceeded on the footing that the Nawab 's marriage with Ameerunnissa Begum was beyond dispute, but as Mahboob Begum did not produce her marriage certificate even after repeated demands by the Committee, she as well as Kadiran Bi were treated as concubines.
The Committee recommended that the annual income of the Paigah should be divided in the proportion of 60 to 40 amongst the legitimate and illegitimate relations of the Nawab 60% of the income was to go to Ameerunnissa Begum and her issues and the remaining 40% was to be paid to Mahboob and Kadiran as well as to 53 408 their children.
These recommendations were approved by the Nizam in a Firman dated 9th July, 1936.
Previous to this, express intimations were given to the surviving relations of Waliuddowla under orders of the Nizam that whatever disputes might exist among them regarding the matrooka or personal estate of the Nawab, should be decided by proper proceedings in a court of law and pending such decision the estate might be kept ' under the supervision of the Paigah Committee.
On the 8th February, 1938, Mahboob Begum and her children filed a suit in the Dar ul Quaza, which was a court established under the law for deciding rights of succession, marriage, divorce etc.
of the Muslims in the Hyderabad State, praying for a declaration that Mahboob Begum was the legally married wife of the Nawab and the children were his legitimate children and for other consequential reliefs in the shape of participation in the matrooka and recovery of the dower debt payable to Mahboob Begum.
Both Ameerunnissa Begum and Kadiran Bibi as well as their children were among the defendants impleaded in the suit.
During the pendency of the suit and before it came on for actual hearing, there was a Firman issued by the Nizara on the 9th February, 1937, on the application of Ameerunnissa Begum, directing the withdrawal of the suit from the Dar ul Quaza court and the appointment of a Special Commission consisting of Nawab Jiwan Yar Jung, the then Chief Justice of Hyderabad and the Judge of Dar ul Quaza before whom the suit was pending, to investigate the matter and submit a report to the Nizam through the Executive Council.
Proceedings before the Special Commission commenced on 27th March,1939.
Kadiran Bibi filed a plaint before the Commission claiming on behalf of herself and her children the identical reliefs which were claimed by Mahboob Begum and her children, and though this plaint was at first rejected by the Commission it was subsequently entertained under specific orders of the Executive Council.
It appears that Fatima Bibi also lodged a plaint in respect of 409 her Mahar against the estate of the Nawab and ,this matter was also directed to be investigated by the Commission.
The enquiry before the commission was a long affair in which a large volume of evidence, both oral and documentary, was adduced.
The Commission submitted the report on October 16, 1944, and their findings, in substance, were that both Mahboob Begum and Kadiran Begum were legally married wives of Waliuddowla and hence they as well as their children were entitled to have their legitimate shares in the matrooka.
Fatima Begum was also held to be a legally wedded wife of the Nawab, and as such entitled to the dower claimed by her.
When the report came up for consideration by the Executive Council the Members of the Council were divided in their opinion.
A minority was in favour of accepting the findings of the Commission but the majority view was that further expert opinion should be taken in the matter.
Eventually on the advice of the Council the Nizam directed by his Firman dated 27th August, 1945, that the report of the Special Commission should be scrutinised by an Advisory Committee consisting of three persons, namely, two Judges of the High Court and the Legal Adviser of the State.
This Committee was directed to examine fully the bulky report of the Special Commission and submit their opinion with a view to assist the Executive Council in coming to their decision.
They were not to take any fresh evidence or hear any further arguments from the parties.
The Advisory Committee submitted their report on 24th November, 1945, and the Committee held differing from the view taken by the Special Commission that neither Mahboob Begum nor Kadiran Begum was the legally wedded wife of Nawab Waliuddowla.
Despite this report, the majority of the Executive Council recommended that the findings of the Special Commission should be accepted.
The Nizam accepted this recommendation and by his Firman dated 26th June, 1947, directed that the findings of the Special Commission should be implemented at an early date.
410 There was a proposal at the beginning that the members of the Special Commission themselves should be asked to implement their findings, but eventually it was decided by a resolution of the Executive Council dated 22nd September, 1947, that the task of en forcing the recommendations of the Commission should be entrusted to the Chief Justice of the Hyderabad High Court.
It appears that in subsequent communications to the Executive Council the Nizam expressed doubt regarding the status of Mahboob Begum and Kadiran Begum and suggested the replacement of the Firman of 26th June, 1947, by now orders in the nature of a compromise.
The Executive Council, however, stuck to their decision and on 17th June, 1948, the findings of the Special Commission were transferred to the Chief Justice for executing the same as early as possible.
On 2nd July, 1948, another Firman was issued by the Nizam directing that the Chief Justice before making the final distribution of the matrooka should submit his report through the Executive Council to His Exalted Highness for his sanction.
This direction was embodied in a resolution of the Executive Council dated 2nd September, 1948.
The police action in Hyderabad commenced soon after that and it was on 25th September, 1948, after the police action had terminated and a Military Governor was placed in charge of the Hyderabad State that a formal communication of the resolution mentioned above was made to the Chief Justice.
Soon afterwards on the application of Ameerunnissa Begum made to the Military Governor the execution proceedings before the Chief Justice were stayed by an order dated 16th October, 1948.
This stay order was again cancelled on 5th November, 1948, and the execution proceedings were allowed to continue.
On 5th December, 1948, the Chief Justice submitted his report regarding the distribution of the matrooka to the Executive Council.
Strangely, however, by a Firman dated 24th February, 1949, the Nizam purporting to set under the advice of the Military 411 Governor directed that the findings of the three men Advisory Committee, who differed from the views taken by the Special Commission, should be given effect to.
In other words, the claims of Mahboob Begum and Kadiran Begum were dismissed and Ameerunissa Begum was directed to pay one lakh of rupees to Fatima, Begum as the dower due to the latter.
Protest was lodged against the decision by Mahboob Begum and Kadiran Begum and again a Firman was issued by the Nizam under the advice of the Military Governor on 7th of September, 1949.
By this Firman the earlier order of 24th February, 1949, was revoked and the whole case was referred for opinion and report to Sir George Spence, the Legal Adviser to the Military Governor, who was directed to hear the parties and take such further evidence as he considered necessary.
The enquiry then began before the Legal Adviser but neither party adduced any evidence.
Sir George Spence submitted his report on 7th January, 1950.
The material findings and recommendations in his report were as follows: " 76.
My finding on the case is that neither Mahboob Begum nor Kadiran Begum was married to the Nawab with the result that these ladies and their children are not entitled to participate in the distribution of the matrooka.
77.If this finding is accepted, the order required for its implementation would be an order dismissing the claims of Mahboob Begum and Kadiran Begum on the matrooka and directing Ameerunnissa Begum to pay one lakh of rupees out of the matrooka to Fatima Begum on account of Haq Mahar.
" The Constitution of India came into force on 26th January, 1960.
As Hyderabad was integrated with the Indian Union and the Nizam lost the absolute power which he could exercise previously, it was no longer within his competence to issue a Firman on the terms of the report of Sir George Spence and make it legally binding on the parties.
Recourse was 412 therefore had to legislation and on April 24, 1950, this impugned Act was passed which purported to give a legislative sanction to the findings in the report of Sir George Spence.
The material provision of the Act is contained in section 2, clause (1), which *lays down that " the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab Waliuddowla are hereby dismissed".
The second clause of this section provides that a sum of one lakh of rupees shalt be paid to Fatima Begum on account of her Haq Mahar.
Under section 3, the decisions affirmed in section 2 cannot be called in question in any court of law and finally section 4 provides that the High Court of Hyderabad shall, on the application of any person interested in the decision affirmed in section 2, execute the said decision as if it were a decree passed by itself and such person was a decree holder.
It is this Act which has been pronounced to be invalid by the High Court of Hyderabad to the extent that it dismisses the claims of Mahboob Begum and Kadiran Begum as well as of their children to the personal estate of Nawab Waliuddowla.
It may be conceded that before the coming in of the Constitution, the Nizam of Hyderabad practically enjoyed unfettered sovereign authority and however much the various Firmans, which were issued by him in connection with the present dispute, may appear to be capricious and arbitrary, strictly speaking they were not 'unconstitutional in the sense that they were beyond his competence as the supreme legislature in the State.
After the Constitution came into force and prior to the setting up of a duly constituted legislature in the Hyderabad State, the legislative authority undoubtedly vested in the Nizam as the Rajpramukh of the State under the provision of article 385 of the Constitution read with article 212 A (2) inserted by the President 's (Removal of Difficulties) Order No. II dated 26th January, 1950; but the legislative power exercisable by the Nizam was a strictly limited power.
The Rajpramukh 413 was not only to act in conformity with the provision of article 246 of the Constitution and keep within the bounds of the legislative sphere laid down with reference to the entries in the different legislative lists, but the legislation must not be in conflict with any of the fundamental rights guaranteed under Part&, III of the Constitution.
The impugned Act, as its title and preamble show, was passed with the avowed object of terminating the disputes relating to succession to the estate of the late Nawab Waliuddowala.
Although in the report of Sir George Spence it was held that Mahboob Begum and Kadiran Begum were not the legally wedded wives of the Nawab and their children were not legitimate, there was no express declaration to that effect in the operative portion of the Act which merely lays down that the claims of these two ladies as well as of their children to participate in the distribution of the matrooka of the late Nawab are dismissed.
The legislation may be said to relate to succession and indirectly to marriage also and as such may come within the purview of entry 5, List III of the Seventh Schedule to the Constitution.
It has not been argued by Mr. Somayya, who appeared for the respondents, that a legislation on these topics must be a general legislation; but it has not been disputed by either side that no valid legislation could be passed under these heads which is discriminatory in its character and offends against the equal protection clause embodied in article 14 of the Constitution.
The contention of the learned Attorney General is that the legislation in the present case does not violate the principles of the equality clause and he has attempted to combat with much force the decision of the High Court on this point.
This is the main question in the case which requires to be examined carefully.
The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this court and do not require repetition.
It is well settled that a legislature which 414 has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects ; and for that purpose it must have large powers of selection or classification of persons and ,*things upon which such laws are to operate.
Mere differentiation or inequality of treatment does not per so amount to discrimination within the inhibition of the equal protection clause.
To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view.
The learned Attorney General in the course of his argument laid considerable stress upon the decision of this court in Chiranjit Lal vs The Union of India(1) and he attempted to call in his aid the two propositions recognised and relied upon in that decision, namely, (1) that the presumption is always in favour of the constitutionality of an enactment, and (2) a law may be constitutional even though it relates to a single individual, family or corporation.
The pro positions themselves may be well founded but whether or not they would apply to a particular case would depend upon the facts and circumstances of that case.
In Chiranjit Lal 's case (1), it is to be noted, the circumstances were somewhat exceptional.
The legislation in that case related to a company which was engaged in production of a commodity vitally essential to the community, and in judging the reasonableness of the classification in such cases the court has undoubtedly to look to the social, political and economic interest of the community as a whole.
In doing so, as Prof Willis observed, the court will assume the existence of any state of facts which can reasonably be conceived of as existing at the time of legislation and capable of sustaining the classification made by it(").
In the case before us what the legislature has done is to single out two groups of persons consisting of two (1) ; , (2) Willis on constitutional Law, p. 580, 415 ladies and their respective children out of those who claim to be related to the late Nawab Waliuddowla and prevent them from getting any share in the personal property of the latter to which they might be entitled under the general law of the land.
They ' claim to be wives and children of the deceased and, as such entitled to have shares in his personal estate, and no competent court of law has as yet negatived their claims in this respect.
On what principle then, it may be asked, was the disability imposed upon these persons alone while the claim of the other claimants was, accepted ? Nay, the legislation goes further than this and denies to these specified individuals a right to enforce their claim in a court of law, in accordance with the personal law that governs the community to which they belong.
They, in fact, have been discriminated against from the rest of the community, in respect of a valuable right which the law secures to them all and the question is, on what basis this apparently hostile and discriminatory legislation can be supported.
It is not suggested that it was for serving a public purpose or securing some advantage to the community as a whole that the legislature chose in this case to interfere with private rights.
The only purpose of the legislation, as appears from the preamble, was to end certain private disputes.
It is true that the quarrel between the two rival parties regarding succession to the estate of the deceased Nawab was going on since, 1938; and after several vicissitudes, for which the Nizam himself or his Legal Advisers were prima rily responsible, there was a report prepared by the Legal Adviser to the State in a particular way, which, contrary to the opinion given by an 'earlier ' Special Commission, negatived the claims of these two ladies and their children.
It is also true that because of the introduction of the Constitution it was no longer possible for the Nizam to issue a Firman embodying this report.
That may be the reason for passing this legislation but it would not furnish any rational basis 54 416 for the discrimination that it made.
The continuance of a dispute even for a long period of time between two sets of rival claimants tot he property of a private person is not a circumstance of such unusual nature as would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes.
As appears from the preamble to the Act, the only ground for depriving the two ladies and their children of the benefits of the ordinary law is the fact that there was an adverse report against them made by the State Legal Adviser.
This ground is itself arbitrary and unreasonable.
The dispute regarding succession to the estate of the Nawab was a legal dispute pure and simple and without, determination of the points in issue by a properly constituted judicial tribunal a legislation based upon the report of a nonjudicial authority and made applicable to specific individuals, who are deprived thereby of valuable rights which are enjoyed by all other persons occupying the same position as themselves, does, in our opinion, plainly come within the constitutional inhibition of Article 14.
The analogy of private Acts of the British Parliament, to which reference was made by the learned Attorney General in the course of his arguments, is not at all helpful.
The British Parliament enjoys legislative omnipotence and there are no constitutional limitations upon its authority or power.
There were indeed a few statutes passed by the Provincial Legislature in India during British days which regulated succession to the estates of certain princely families.
The Bijni Succession Act (Act.
II of 1931) passed by the 'Assam Legislature is an enactment of this type and it did shut out the rights of certain persons who claimed the Bijni estate under the law of inheritance.
But at that time the Governor General of India had express authority under the provisions of the Government of India Act, 1915, to authorize the Provincial Legislatures to make laws regarding subjects of a private nature.
Quite apart from this, no 417 question of infraction of the equal protection rule could arise in pre Constitution days.
We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment ; but when on the ' face of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground, the court has got to invalidate the enactment on the ground of its violating the equal protection clause.
The learned Attorney General contended before us that the High Court was wrong in holding that there was a concluded decree in the present case in favour of respondents 1 to 12 on the basis of the recommendations of the Special Commission, and that this decree was a property within the meaning of law of which these respondents have been deprived by the impugned legislation.
The point is not free from doubt, and much could be said on both sides.
We think, therefore, that it would not be proper on our part to express,any opinion upon it in the present appeal.
We understand that the respondents have filed an execution application in the City Civil Court of Hyderabad which has ordered that execution should proceed and that objections have been taken to this application by the present appellants who have raised inter alia the point that there is no final and effective decree which is capable of execution.
As the point is still pending hearing by the Civil Court of Hyderabad, we do not desire to influence their decision in any way by expressing any opinion on this matter.
We only desire to state that notwithstanding the observations made by the High Court referred to above, the question shall be treated as an open one.
The applicability of article 14 of the Constitution in the present case is, however, not at all dependent upon the fact as to whether or not the respondents have already acquired property in the shape of a decree.
Their claim to the estate of the late Nawab which they wanted to assert under the general law of the land is itself a valuable right, and 418 the deprivation of that right by a piece of discriminatory legislation would be sufficient to bring the case within the purview of article 14 of the Constitution.
Having regard to the view that we have taken, it as unnecessary to consider whether the impugned Legislation violates the provisions of article 31(1) or article 19(1) (f) of the Constitution.
The result is that the appeal is dismissed with costs.
Appeal dismissed.
Agent for respondents Nos.
1 to 12 M. section H. Sastri.
| Sub section (2A) of section 34 of the Bombay Tenancy and Agri cultural Lands Act, 1948, as amended by the Amending Act of 1952, applied from the date when the tenancy stood terminated on expiry of the notice of ejectment served on the tenant by the landlord under section 34(1) of the Act and not from the date of the notice.
The Amending Act could not be said to divest the landlord of any vested right since he could have none till the period of notice terminated and the tenancy came to an end.
Consequently, where the landlord gave notice of ejectment under section 34(1) of the Act, but the Amending Act came into force before the period of notice expired the landlord could be entitled to possession only after satisfying the provisions of that subsection.
Durlabbhai Fakirbhai vs jhaverbhai Bhikabhai, (1956) 58 Bom.
L. R. 85, referred to.
Jeebankrishna Chakrabarti vs Abdul Kader Choudhuri, (1933) I.L.R. LX Cal.
1037, distinguished.
|
125 135, and 233 of 1963.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
A. V. Vishwanatha Sastri, T. A. Ramachandran, B. Par thasarathy, 0.
C. Mathur, J. B. Dadachanji and Ravinder Narain, for the petitioner (in W. P. Nos.
125 135 1963).
H. N. Sanyal, Solicitor General, N. section Bindra and R. N. Sachthey, for the respondents (in W. P. Nos.
125 135 / 63).
O. C. Mathur, J. B. Dadachanji and Ravinder Narain for the petitioner (in W. P. No. 233 / 1963).
R. N. Sachthey, for the respondents (in W.P. No. 233/ 63).
187 March 12, 1964.
The Judgment of the Court was delivered by GAJENDRAGADKAR, C. J.
This group of 12 writ petitions raises a common question about the validity of the( Orissa Sales Tax Validation Act, 1961 (Act No. 7 of 1961) (hereinafter referred to as the Act).
The facts on which the petitioners rely are similar, and so, we shall mention the facts in the first group consisting of writ petitions Nos.
125 135 of 1963.
The petitioner in this group is Shri Epari Chinna Krishna Moorthy, Proprietor, Epari Chinna Krishna Moorthy & Sons, Berhampur, Orissa.
He is a merchant who carries on business in "bullion and specie" and gold and silver ornaments at Berhampur and as such merchant, he has been registered as 'dealer ' under the Orissa Sales Tax Act, 1947 (Act No. 14 of 1947).
After the said Act came into force, the Government of Orissa purporting to exercise its authority under section 6 of the said Sales Tax Act issued a notification exempting certain articles from the operation of the charging section of that Act.
Under this notification, gold ornaments were ordered to be exempted from sales tax 'when the manufacturer selling them charges separately for the value of gold and the cost of manufacture. ' This notification was issued on July 1, 1949 Durinh the course of his business, the petitioner manufactures gold ornaments by supplying the gold to the artisans and getting ornaments prepared by them under his supervision and when the ornaments are so prepared, he sells them in his shop and has been showing the value of gold and the cost of manufacture separately.
That is why the petitioner alleges that he is entitled to claim the benefit of the exemption notification.
Consistently with this plea, the petitioner filed his returns before the Sales tax Officer at Berhampur and had been claiming exemption of Sales tax on the sales as being entitled to exemption under the said notification.
Upto June, 1952, the claim for exemption made by him was upheld and the amount represented by sales of the said gold ornaments was deducted from the taxable turnover shown by the petitioner in his returns.
Subsequently, however, these assessments were re opened under section 12(7) of the Act and it was claimed that the deductions made on certain sales transactions of gold ornaments were not justified and to that extent, the petitioner had escaped assessment.
The petitioner resisted this attempt to re open the assessment and he pleaded that he was entitled to claim exemption under the notification, because he belonged to the class of manufacturers to which the notification referred.
The Sales tax Officer, however, disallowed the petitioner 's contention and proceeded to levy tax on the sales transac tions in question.
The petitioner then challenged the said 188 decision by preferring appeals, but the said appeals were also dismissed.
While the appeals were pending similar assessments made in respect of other dealers including the petitioner were challenged by them by writ petitions before the High Court of Orissa.
(Nos. 151, 161, 162, 204 209 and 110 of 1957 respectively).
The Division Bench of the Orissa High Court which heard the writ petitions upheld the petitioner 's case and issued appropriate writs directing the Sales tax Officer to allow the petitioner 's claim for exemption 'under the notification in question.
The main controversy before the High Court was about the precise denotation of the word 'manufacturer ' used in the notification.
The High Court hold that the expression manufacturer ' meant the first owner of the finished products for whom it was mad(.
either by his paid employee or even by independent artisans on receipt of raw materials and labour charges from him.
According to this view, the petitioners before the High Court were found to be manufacturers and as such entitled to claim exemption in respect of sale of old ornaments made by them.
This judgement was pronounced on March 13, 1959.
Against this judgement the State of Orissa has filed appeals to this Court and they are numbered as Civil Appeals Nos. 92 to 94 of 1963.
These appeals are till pending disposal.
After the Orissa High Court pronounced its judgement in the writ petitions to which reference has been made, the impugned Act was passed by the Orissa Legislature on August 1, 1961.
This Act received the assent of the Governor on September 10, 1961, and was published on September 18, 1961.
It contains one operative provision in section 2.
Section 2 provides that notwithstanding anything contained in any judgment, decree or order of any court, the word 'manufactu rer ' occurring against item 33 in the schedule to the notification of the Government of Orissa dated July 28, 1947 as amended by another notification of the 1st July, 1949 shall mean and shall always be deemed to have meant a, person who by his own labour works up materials into suitable forms and a person who owns or runs a manufactory for the purpose of business with respect to the articles manufactured therein.
It is the validity of this section which is challenged before us by the petitioners in the present writ petitions.
It is clear that the object of section 2 of the impugned Act is to make it clear that the legislature 's intention was not, as the High Court had held, to, include within the notification all persons who are first owners of the finished product of gold.
Section 2 shows that the legislative intention was to give benefit of the said exemption only to persons who themselves work and produce gold ornaments or who run or own a manufactory for the purpose of business with respect to the articles manufactured therein.
In other words, the intention of the Government in issuing the notification was not to give the benefit of the exemption to traders or shop keepers who were no more than commission agents and who did not personally, work for making gold ornaments or who did not own a manu factory employing artisans for that purpose.
If this section is valid, it is common ground that the petitioners are not entitled ,to claim the exemption.
On the other hand, if this section is invalid, the petitioners would be the first owners of gold ornaments and may be entitled to claim exemption.
The first argument which has been urged before us by Mr. Sastri is that since the exemption was granted by the State Government by virtue of the powers conferred on it by section 6, it was not open to the legislature to take away that exemp tion retrospectively.
Section 4 of the parent Sales tax Act is the charging section and section 6 is the section which confers on the State Government power to issue a notification exempting from the tax the sale of any goods or class of goods and likewise withdraw any such exemption subject to such conditions and exceptions as it may deem fit.
The argument is, the power to grant exemption having been conferred on the State Government, it was validly exercised by the State Government and though the legislature may withdraw such exemption, it cannot do so retrospectively.
It is obvious that if the State ,Government which is the delegate of the legislature can withdraw the exemption granted by it, the legislature cannot be denied such right.
But it is urged that once exemption was validly granted, the legislature cannot withdraw it retrospectively, because that would be invalidating the notification itself.
We are not impressed by this argument.
What the legislature has purported to do by section 2 of the impugned Act is to make the intention of the notification clear.
Section 2 in substance declares that the intention of the delegate in issuing the notification granting exemption was to confine the benefit of the said exemption only to persons who, actually produce old ornaments or employ artisans for that purpose.
We do not see how any question of legislative incompetence can come in the present discussion.
And, if the State Government was given the power either to grant or withdraw the exemption that cannot possibly affect the legislature 's competency to make any provision in that behalf either prospectively or retrospectively.
Therefore, there is no substance in the argument that the retrospective operation of section 2 of the impugned Act 'is invalid.
Then Mr. Sastri contends that this provision is discrimina tory and as such, contravenes the equality before the law, guaranteed by article 14.
This argument is also misconceived, is not seriously disputed that the petitioners belong to the 190 class of traders or shopkeepers who are like commission agents.
They give gold to the artisans, paying the artisans their labour charges and when the ornaments are thus produced, they charge commission before they are sold to the customers.
In such a case, it is not easy to understand how this class of traders can be said belong to same class of persons who produce gold ornaments themselves or run manufactories where artisans are engaged for producing them.
The counter affidavit filed on behalf of the respondent State has also averred that the petitioners sometimes sell goods manufactured by firms outside the State of Orissa and in no case had they manufactured ornaments themselves.
Whether the gold which they give to the artisans is their own or is supplied to them by customers is not a matter of any significance, because what is important in this connection is that they are not directly concerned with the production of ornaments, and admittedly, they do not produce the said ornaments themselves.
Therefore, the persons who get the benefit of the exemption notification as a result of the provisions of section 2 of the impugned Act cannot be said to belong to the same class as that of the petitioners, and if that is so, the main argument on the basis of article 14 does not subsist.
Besides, one of the objects of the impugned Act appears to be to make it clear that the legislature intends to benefit the goldsmiths who actually make gold ornaments and that object can be carried out only if exemption is granted to persons who keep in their continuous employment artisans who produce gold ornaments.
If a person produces gold ornaments himself and if a person employs artisans to produce gold ornaments for him, they fall within the protection of the exemption.
In the case of the petitioners, however, they do not keep any artisans in their continuous employment, and so, if the legislature thought it was not necessary to give them the benefit of the exemption, it cannot be said that the classification made by the legislature has no rational connection with the object intended to be achieved by it.
This argument assume,,, that the petitioners belong to the same class as the persons to whom the benefit of the exemption is available.
But as we have already stated, these two categories are distinct and there is no sameness or similarity between them.
It was also suggested by Mr. Sastri that the result of the impugned provision is to deny the benefit of the exemption to the poorer classes of persons who are engaged in the business of manufacturing gold ornaments, and in that con nection, he has commented on the fact that the notification gives the benefit of the exemption to persons who run manu factories but it denies that benefit to persons who carry on the work of producing gold ornaments on a smaller scale, and 191 so, are unable to run a manufactory.
This argument is fal lacious.
The notification as interpreted by section 2 of the impugned Act benefits the artisans who produce ornaments themselves and that obviously covers a very large section of independent artisans engaged in the trade.
The notification also benefits persons who run manufactories and that ensures the continuous employment of artisans.
That is why it seems to us that the main object of ranting exemption can be said to be achieved by holding that 'manufacturer, means either a, manufacturer properly so called or one who engages artisans lo manufacture gold ornaments.
Mr. Sastri also argued that the retrospective operation ,of the impugned section should be struck down as unconsti tutional,, because it imposes an unreasonable restriction on the petitioners ' fundamental right under article 19(1)(g).
It is true that in considering the question as to whether legislative power to pass an Act retrospectively has been reasonably ,exercised or not, it is relevant to enquire how the retrospective operation operates.
But it would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid.
Besides, in the present case, the retrospective operation does not spread over a very long period either.
Incidentally, it is not clear from the record that the petitioners did not recover sales, tax from their customers when they sold the gold ornaments to them.
The counter affidavit filed by the, respondent State alleges that even where sales tax has not been charged separately, the price charged included sales tax because it was the usual practice of every registered dealer ,doing similar business to collect sales tax either by showing it as such separately and thereby claiming deduction of the, ,sales tax from the gross turnover to arrive at the taxable turn , ,over shown separately or by including it in the price and thereby collecting it as a part of the price charged.
In any event, we do not think that in the circumstances of this case it would be possible to hold that by making the provision of section 2 of ' the impugned Act retrospective the legislature has imposed a restriction on the petitioners ' fundamental right under article 19(1)(g) which is not reasonable and is not in the interest of the general public.
The result is, the petitions fail and are dismissed with costs.
One set of hearing fees.
Petitions dismissed.
| The petitioner, a merchant, carrying on business in "bullion and specie" and gold and silver ornaments was a registered 'dealer ' under the Orissa Sales Tax Act, 1947.
The Government purporting to exercise its authority under section 6 of the said Act issued a notification on July 1, 1949 exempting certain articles from the operation of the charging section of that Act.
Under the notification gold ornaments were ordered to be exempted from sales tax when the manufacturer selling them charges separately for the value of gold and the cost of manufacture.
The petitioner filed his returns before the Sales tax Officer and claimed exemption of sales tax under the said notification.
Up to June 1952, the claim for exemption was upheld.
Subsequently, however, these assessments were reopened under section 12(7) of the Act and it was claimed that the deductions made on certain sale transactions of gold ornaments were not justified and the petitioner had escaped assessment.
The petitioner pleaded that lie was entitled to exemption, because he belonged to the class of manufacturers to which the notification referred.
The Sales tax Officer disallowed the petitioner 's contention.
The petitioner then challenged the said decision by preferring appeals, but the said appeals were also dismissed.
Pending these appeals, similar assessments made in respect of other dealers including the petitioner were challenged by writ petitions before the High Court.
The High Court upheld the petitioner 's case and issued writs directing the Sales tax Officer to allow the petitioners ' claim for exemption.
After this judgement was pronounced, the impugned Act was passed by the legislature on August 1, 1961 and was published on September 18, 1961, containing one operative provision in section 2.
It provided that notwithstanding anything contained in any judgement, decree or order of any court, the word 'manufacturer ' occuring against item 33 in the schedule to the notification of the Government dated July 28, 1947 as amended by another notification of the 1st July, 1949 shall mean and shall always be deemed to have meant a person who by his own labour works up materials into suitable forms and a person who owns or runs a manufactory for the purpose of business with respect to the articles manufactured therein.
The validity of this section was challenged in the present writ petition.
186 It was urged (i) that since the exemption was granted by the State Government by virtue of the Powers conferred on it by section 6, it was not open to the legislature to take away that exemption retrospectively; (ii) that the provision in section 2 of the impugned Act was discriminatory and as such contravened the equality before the law guaranteed by article 14 and (iii) that the retrospective operation of the impugned section should be struck down as unconstitutional, because it imposes an unreasonable restriction on the petitioner 's fundamental right under article 19 (1) (g) Held: (i) What the legislature had purported to do by section 2 of the impugned Act, was to make the intention of the notification clear.
And, if the State Government was given the power either to grant or withdraw the exemption, that could not possibly affect the legislature 's competence to make any provision in that behalf either prospectively or retrospectively.
(ii) The notification as interpreted by section 2 of the impugned Act benefits the artisans who produce ornaments themselves and who run manufactories.
That is why the main object of granting exemption can be said to be achieved by holding that ,manufacturer ' means either a manufacturer properly so called or one who engages artisans to manufacture gold ornaments.
In the present case the petitioners were not directly concerned with the production of ornaments, and admittedly, they did not produce the said ornaments themselves.
Therefore, the persons who get the benefit of the exemption notification as a result of the provisions of section 2 of the impugned Act cannot be said to belong to the same class as that of the petitioners.
The two categories are distinct and there is no sameness or similarity between them, and if that is so, the main argument on the basis of article 14 does not subsist.
(ii) It would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid.
In the circumstances of the present case it would not be possible to hold that by making the provision of section 2 of the impugned Act retrospective the legislature has imposed a restriction on the petitioner 's fundamental rights under article 19(1) (g) which is not reasonable and is not in the interest of the general public.
|
Civil Appeal No. 398 of 1960.
Appeal by special leave from the judgment and decree dated June 23, 1959, of the Calcutta High Court in Appeal from Original Decree No. 50 of 1955.
Veda Vyasa, section K. Kapur and B.P. Maheshwari, for the appellant.
K. L. Gosain and K. L. Mehta, for the respondent.
December 20.
The Judgment of the Court was delivered by 219 SHAH, J.
Mr.
Justice Bachawat of the High Court of Judicature at Calcutta decreed Suit No. 1039 of 1948 filed by one Pearey Lal hereinafter called the plaintiff for a decree for Rs. 1,35,000/ with interest against the New Bank of India Ltd. The appeal of the Bank against the decree was dismissed by a Division Bench of the High Court.
With special leave the Bank has appealed to this Court.
The Bank had its registered office, originally at Lahore but after the partition of India the office was transferred to Amritsar.
The plaintiff who was a resident of Lahore had accounts with several banks including the New Bank of India Ltd. In view of the impending partition, the plaintiff was anxious to transfer his moveable property outside the territory it was apprehended would be included in Pakistan, and he gave instructions for transferring his accounts with the Bank to its other branches in India.
He also paid an amount of Rs. 1,25,000/ on July 18, 1947, into the Bank at Lahore with instructions to transmit the same the to Bank branch at Calcutta which it then proposed to open in the near future.
An amount of Rs. 10,000/ was also paid into the Bank at Lahore on July 19, 1947, with similar instructions.
In respect of these two transactions the Bank executed receipts which are set out below: "Received the sum of Rs. 1,25,000/ (Rs. One Lac & twenty five thousand) only from Mr. Pearey Lal on account of amount to be remitted to Calcutta branch for preparing various F.D. Receipts subject to his instructions on or after the opening date when he would call upon them personally.
Lahore for the New Bank of India Ltd. The 18th day of Sd.
Illegible July, 1947.
Manager.
" 220 . . . . . . . . . . . . . . . . . "Received the sum of Rs. 10,000/ (Rupees ten thousand) only through Mr. Pearey Lal for transmission to our Calcutta Office for making up various F. D. Receipts at his instance when he calls upon them personally on or after the opening date of the Branch.
Lahore for the New Bank of India Ltd. 19 7 47.
Illegible Manager.
" The two amounts were transmitted by the Bank to Calcutta.
A branch of the Bank was opened at Calcutta on September 24, 1947, but within a few days thereafter the Bank ceased making payments.
It appears that a moratorium for a limited period was declared under an Ordinance issued by the Governer General restraining the Bank from making payments to its depositors.
In December, 1947, after the expiry of the period of the moratorium the plaintiff applied to the Bank 's branch at Calcutta for facility to withdraw the whole amount but the Calcutta Branch raised certain technical objections against such a course.
On March 24, 1948 the plaintiff commenced an action against the Bank inter alia for a decree of Rs. 1,35,000/ in the Calcutta High Court on its original side.
During the pendency of the suit the High Court of East Punjab sanctioned a scheme for arrangement under sections 153 and 153A of the Indian Companies Act, 1913, for settlement of the liability of the Bank.
By the first clause of the scheme the expression "deposit" was to include "Fixed Deposits, Bank 's own Cash Certificates, Current Accounts, Deposits at Call, Savings Fund Accounts Amounts lying in Sundries or in any other kind of Credit Accounts, Bank Drafts, Cash Orders, and documents of the like nature and amounts due to Bankers over and above the value of Government Securities lying with them against 221 such depositors".
It was directed by the scheme, as it finally emerged, that the depositors were to be paid 701/2% of the deposits held by them and to he allotted shares of the face value of 5% of the deposits.
The plaintiff claimed by his suit that he had entrusted to the Bank at its registered office at Lahore Rs. 1,35,000/ on July 18 and 19, 1947, with instructions to transmit the same to the branch of the Bank which it proposed to open at Calcutta and to hold the amount subject to further instructions to be given by him when he would call personally at the branch at Calcutta on or after the opening date, that prior to the opening of the said Calcutta Branch the plaintiff countermanded his instructions on or about September 13, 1947 and demanded at Lahore that it be returned, but the Bank wrongfully claimed to have remitted the two sums to its Calcutta Branch and to have kept the same in a fixed deposit account in the name of the plaintiff, even though the plaintiff, had opened no such account at the Calcutta Branch and had given no instructions to put the same into any account by way of fixed deposit or otherwise.
The plaintiff, accordingly, claimed that the Bank was a trustee for transmission of the amount and in the absence of any instructions given by him for opening a fixed deposit account, in respect of the amount transmitted the Bank stood qua the plaintiff in a fiduciary relation and was liable to refund the full amount.
In substance, it was claimed by the plaintiff that the amount lying with the Bank at Calcutta was not a deposit within the meaning of the scheme and was not liable to any reduction.
The Bank submitted that the amount of Rs. 1,35,000/ was deposited by the plaintiff at its head office at Lahore for the purpose of opening a fixed deposit account in the name of the plaintiff upon the terms that the fixed deposit would carry 222 interest as on the respective dates of the deposits, that it was agreed that the plaintiff would be allowed to take loans upto 90% of the deposit at a rate of interest of half percent above the current fixed deposit rates and that the amount would be transmitted to the Calcutta Branch of the Bank for the purpose of crediting the same to the fixed deposit account of the plaintiff.
The Bank denied the alleged instructions in September, 1947, countermanding the original arrangement and contended that the plaintiff was bound by the scheme of arrangement sanctioned by the High Court of East Punjab.
The Bank offered to pay the amount due to the plaintiff under the scheme of arrangement and also to allot shares of the value of 5% in accordance with the scheme.
A decree on admission was passed against the Bank for Rs. 81,000/ and the suit was contested by the Bank for the balance of the claim.
The trial Court held that even though the plaintiff failed to prove the instructions in the month of September, 1947, set up by him countermanding transmission, it was established on the evidence, that the plaintiff had entrusted to the Bank Rs. 1,35,000/ for transmission and the plaintiff having given no further instructions, the Bank held the amount as trustee for the plaintiff and that the plaintiff 's claim was not liable to be reduced under the scheme sanctioned by the High Court of East Punjab.
The Court also negatived the plea of the Bank that the amount of Rs. 1,35,000/ was deposited with the Bank at Lahore for opening a fixed deposit account subject to the conditions which the Bank set up.
The finding of the trial Court were confirmed, in appeal, by a Division Bench of the High Court at Calcutta.
The facts found proved, according to the findings of the trial Court and confirmed by the 223 High Court are therefore that the plaintiff delivered an amount of Rs. 1,25,000/ on July 19, 1947, and Rs. 10,000/ on July 19, 1947, to the Bank at Lahore for transmission to Calcutta, with instructions to await the directions of the plaintiff regarding the opening of accounts for keeping the same in fixed deposit or otherwise in the Calcutta Branch of the Bank, and the plaintiff never gave instructions for opening any account, fixed deposit or otherwise, in regard to the amounts after they reached Calcutta.
Delivery of the amount for transmission to the Bank created ex facie a relationship of a fiduciary character.
But counsel for the Bank contends that when the amount was handed over at Lahore to the Bank by the plaintiff who was an old constituent of the Bank it must be presumed that a relationship of debtor and creditor arose and by the addition of instructions for transmissions of the amount to another branch the relationship of trustee and cestuique trust did not arise.
He submitted that the contention that the relation between the plaintiff and the Bank was of creditor and debtor was supported by three important circumstances: (1) that the Bank agreed to pay interest on the amount delivered by the plaintiff; (2) that the Bank charged no commission or remuneration for transmission of the amount and (3) that even on the plaintiff 's case the amount was to be utilized for opening fixed deposit accounts at Calcutta.
It is true that in the absence of other evidence a person paying money into a Bank, whether he is a constituent of the Bank or not, may be presumed to have paid the money to be held as bankers ordinarily hold the moneys of their constituents.
If no specific instructions are given at the time of payment or thereafter, and even if the money is held in a suspense account the bank does not thereby become a trustee for the amount paid.
In other words, when a person dealing with 224 a bank delivers money to the Bank an intention to create a relation of creditor and debtor between him and the Bank is presumed, it being the normal course of the business of the Bank to accept deposits from its customers.
But this presumption is one of fact arising from the nature of the business carried on by the Bank and is rebutted by proof of special instructions, or circumstances attending the transaction.
Where the money is paid to a bank with special instructions to retain the same pending further instructions (The Official Assignee, Madras vs Natesam Pillai (1)) or to pay over the same to another person who has no banking account with the bank and the bank accepts the instructions and holds the money pending instructions from that other person (Arbuthnot & Co. vs D. Rajam Ayyar (2)), or where instructions are given by a customer to his banker that a part of the amount lying in his account be forwarded to another bank to meet a bill to become due and payable by him and the amount is sent by the banker as directed (Farley vs Turner (3)), a trust results and the presumption which ordinarily arises by reason of payment of the money to the bank is rebutted.
It is not necessary in this appeal to consider whether because of an agreement to pay interest the relationship may be deemed to be of debtor and creditor, because it was held by both the courts below that no such agreement is proved, and according to the settled practice of this court the finding is regarded a binding.
The Bank charged no commission or remuneration for transmitting the amount to Calcutta, but that, in our judgment, is a circumstance which permits of no inference against the plaintiff.
Undoubtedly, when the amount was delivered to the Bank by the plaintiff it was his intention to open fixed deposit account in Calcutta with the 225 Bank 's branch but the fixed deposit accounts were to be opened after instructions were received.
The transaction, as evidenced by the two receipts, was primarily one of entrustment of the amount to the Bank for transmission to Calcutta.
After the purpose for which the moneys were entrusted was carried out, in the absence of further instructions the defendant did not cease to be a trustee.
So long as instructions were not given by the plaintiff for appropriation of the amounts the Bank continued to hold the amounts transmitted for and on behalf of the plaintiff and there is no evidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached Calcutta.
It is immaterial that the Bank purported to open fixed deposit account in the name of the plaintiff with the amounts received at its head office at Lahore.
That course of action was adopted without the consent of the plaintiff and it could not bind the plaintiff.
The High Court was, therefore, right in holding that the amount delivered by the plaintiff to the Bank at Lahore remained in trust even after it reached Calcutta, and it was not held by the Bank, in deposit for the plaintiff within the meaning of the scheme sanctioned by the High Court of East Punjab.
In that view of the case the appeal fails and is dismissed with costs.
Appeal dismissed.
| The appellants were holders of pre settlement minor inams.
The grants were not of whole villages but of certain lands and they comprised both the melwaram and kudiwaram rights in the lands.
The definition of 'estate ' in the Orissa Estates Abolition Act, 1951, did not include a minor inam.
But by the Orissa Estates Abolition (Amendment) Act, 1954, the definition was enlarged to cover minor inams also.
Both the Acts had received the assent of the President.
The appe llants contended (i) that the Amendment Act of 1954 was not a law for the compulsory acquisition of property for a public purpose and was not saved by article 31 A of the Constitution and (ii) that the minor inams were outside the scope of the Abolition Act and could not be resumed.
Held, that the Amendment Act of 1954 was valid and was within the Protection of article 31A.
In assenting to this Act, the President assented to new categories of properties being brought within the operation of the abolition Act of 1951, and he, in fact, assented to the law for the compulsory acquisition for public purpose of these new categories of property.
Though the minor inams were not of whole villages and included both the warams, they were nevertheless inams" and the Constitution defined an "estate" as including "any" inam and fell within the scope of Abolition Act of 1951 as amended in 1954.
The ejusdem generis rule cannot be applied to Inam in the definition of "estate" in article 31A(2)(a) because particular categories like "jagir, in am or muafi", are included in the definition expressly even though the rule may apply to "other similar grants" which expression may take its colour from the categories named.
The ejusdem generis rule is applicable where a wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words, 251
|
Civil Appeal No.1396 of 1974 From the Judgment and order dated 28.2.1973 of the Kerala High Court in I.T. Reference No. 84 of 1971.
T.S. Krishnamurthy Iyer, V.J. Francis and N.M. Popli for the Appellant.
S.Balakrishnan for the Respondent.
The Judgment of the Court was delivered by PATHAK J.
This appeal by special leave is directed against the judgment of the High Court of Kerala disposing of an Agricultural 163 Income tax Reference and answering the following question in favour of the assessee and against the Revenue: "Whether on the facts and circumstances of the case the Tribunal was justified in holding that the amount of Rs.33,747.09 is not agricultural income for the assessment year 1964 65." The assessees Kerala Estate Mooriad Chalapuram, is a broad description of seven persons possessing the status of tenants in common under the Kerala Agricultural Income tax Act, 1950.
They owned an estate from which they derived agricultural income liable to be assessed in the year 1963 64.
The assessees followed the mercantile system of accounting.
In assessment proceedings for the year 1963 64, the assessees claimed a deduction of Rs.33,747.09 from their agricultural income on the ground that it was payable towards interest on a loan of Rs.4,00,000 taken by them from M/s. Associated Planters Ltd., Calicut.
The deduction was allowed.
During the accounting period relating to the assessment year 1964 65 M/s. Associated Planters Ltd.waived payment of the interest of Rs.33,747.09, and accordingly the amount was credited to the revenue accounts of the assessees.
The assessing authority brought the amount to tax.
The case was ultimately carried in second appeal to the Tribunal on the question whether the sum of Rs.33,747.09 credited in the relevant previous year could be assessed to tax for the year 1964 65.
The Tribunal, by majority, held that it was not agricultural income.
As the instance of the Commissioner of Agricultural Income tax, Kerala, a reference was made to the High Court of Kerala under sub section
(2) of section 60 of the Kerala Agricultural Income tax Act on the question of law set forth earlier, and the High Court has answered the question in the affirmative.
The High Court has taken the view that it was immaterial that the assessees followed the mercantile system of accounting, because the case was not one of an actual or constructive receipt or any receipt at all but only one of remission.
According to the High Court a remission could not give rise to a credit item in the accounts of the assessees, and that what had been given up by the creditor in favour of the assessees or returned to them could not constitute the income of the assessees.
The High Court observed that what was returned to the assessees had nothing to do with the activities of the assessees, and that it did not arise from the agricultural operations carried on by the assessees.
The Kerala Agricultural Income tax Act, 1950 provides for the 164 levy of tax on agricultural income in the State of Kerala.
Section 3 of the Act provides that agricultural income shall be charged for each financial year on the total agricultural income of the previous year of every person at the rates specified in the Schedule.
Section 4 defines what 'total agricultural income ' is, and s.5 details the deductions to be made in computing the agricultural income.
Clauses (e), (g), (h), and (i) of section 5 refer to interest paid by an assessee in different kinds of cases.
The interest in all these cases has to be deducted from the agricultural income of a person before the levy is imposed.
It is not disputed that the interest allowed to be deducted in the assessment of the present assessees falls under one of those clauses and was, therefore, rightly deducted in computing their agricultural income.
The question is whether the interest waived by M/s. Associated Planters Ltd. and credited to the revenue accounts of the assessees can be regarded as their agricultural income.
There has been serious controversy through the years on the question whether an amount refunded or remitted constitutes the income of an assessee.
In Commissioner of Income tax, Mysore vs Lakshmama, the Mysore High Court took the view that a refund received by the assessee in respect of excise fees payable by him amounted to a revenue receipt liable to tax.
In that case, however, the High Court specifically made a distinction between cases of refund and cases of remission, and it appears to have taken the position that an amount received as remission of duty could not be treated as a revenue receipt, while an amount received by way of refund could be.
In the judgment under appeal, the High Court of Kerala noticed that decision and after exhaustively surveying several decisions came to the conclusion that the remission in the present case could not amount to agricultural income.
We think that the view taken by the High Court in the case before us is right.
The remission cannot, in our opinion, be considered as amounting to the receipt of agricultural income.
What was allowed to be deducted from the total agricultural income of the assessees was interest pursuant to s.5 of the Act.
It was a deduction made permissible by the Act.
To be regarded as taxable in the hands of the assessees the amount which was the subject of remission must be capable of being described as agricultural income.
As the High Court has observed in the present case "what was returned to the assessee has nothing to do with the activities of the assessee, it does not arise from business nor does it arise from agricultural operations when the assessee is an agriculturist.
" 165 In order to eliminate such a controversy in cases falling under the Indian Income tax Act, 1922 sub section
(2A) was added in section 10 of that Act, whereby a receipt such as this was expressly made liable to tax by legal fiction as profits and gains of business, profession or vocation.
Sub section (2A) was inserted in s.10 in 1955.
Before that Chagla, C.J., speaking for the Court in Mohsin Rehan Penkar vs Commissioner of Income tax, Bombay City, had observed: "It is impossible to see how a mere remission which leads to the discharge of the liability of the debtor can ever become income for the purposes of taxation".
This observation was noted by the Mysore High Court in C.I.T. vs Lakshmamma (supra), and appears from what was said by them to have received that tacit approval of the learned Judges.
It was made the basis of distinguishing the case before them from that decided by the Bombay High Court.
We may point out in regard to sub section
(2A) of section 10 of the Indian Income Tax Act, 1922 that it has been replaced by an even wider provision as sub section
(1) of section 41 of the Income Tax Act, 1961.
No provision of that nature finds place in the Kerala Agricultural Income Tax Act.
The appeal fails and is dismissed with costs.
M.L.A. Appeal dismissed.
| The Kerala Agricultural Income Tax Act, 1950 provides for the levy of tax on agricultural income in the State of Kerala.
Section 5 details the deductions to be made in computing the agricultural income.
Clauses (e), (g), (h) and (i) refer to interest paid by the assessee in different kinds of cases.
The interest in all these cases, has to be deducted from the agricultural income of a person before the levy is imposed.
The respondents assessees claimed a deduction of Rs.33,747.09 from their agricultural income under section 5 of the Kerala Agricultural Income Tax Act 1950 towards interest on a loan of Rs.4 lakhs taken from a creditor.
The deduction was allowed.
However, in the next accounting period relating to the assessment year 1964 65, the said creditor waived payment of the interest of Rs.33,747,09 and accordingly the amount was credited to the revenue accounts of the respondents assessees.
The Assessing Authority brought the amount to tax.
But, the Tribunal as well as the High Court took the view that the case was not one of an actual or constructive receipt or any receipt at all but only one of remission and a remission could not give rise to a credit item in the accounts of the assessees and that what had been given by the creditor in favour of the assessees or returned to them could not constitute the income of the assessees.
Dismissing the appeal of the Revenue, ^ HELD: (1) The view taken by the High Court is right.
The remis 162 sion cannot be considered as amounting to the receipt of agricultural income.
What was allowed to be deducted from the total agricultural income of the assesses was interest pursuant to section 5 of the Act.
It was a deduction made permissible by the Act.
To be regarded as taxable in the hands of the assessee, the amount which was the subject of remission must be capable of being described as agricultural income.
[164F G] In the instant case, what was returned to the assessees has nothing to do with the activities of the assessees; it does not arise from business nor does it arise from agricultural operations when the assessee is an agriculturist.
[164G H] Commissioner of Income tax, Mysore vs Lakshmamma,[1964] , approved.
Mohsin Rehman Penkar vs Commissioner of Income tax, Bombay City,[1948] , referred to.
(2) In order to eliminate such a controversy in cases falling under the Indian Income tax Act, 1922, sub s.(2A) was added in section 10 of that Act, whereby a receipt such as this was expressly made liable to tax by legal fiction as profits and gains of business, profession or vocation.
Sub.s.(2A) of s.10 of the Indian Income Tax Act, 1922 has been replaced by an even wider provision as sub section
(1) of section 41 of the Income Tax Act, 1961.
No provision of that nature finds place in the Kerala Agricultural Income Tax Act.
[165A B;D]
|
Civil Appeal No. 4090 of 1991.
From the Order dated 7.2.1991 of the Central Administrative Tribunal, Bangalore in Original Application No. 11 of 1991.
K.K. Venugopal, B.R.L. Iyengar, E.C. Vidyasagar, D.N. Nanjunda Reddy, L.R. Singh and Shahid Rizvi for the Appellant.
G. Ramaswamy, Attorney General, P.P. Muthanna (for the State of Karnataka), Subramanian, M. Verrappa, Kh.
Nobin Singh and section Walia for the Respondents.
The Judgment of the Court was delivered by G.N. RAY, J.
This appeal is directed against the decision of the Central Administrative Tribunal, Bangalore, dated February 7, 1991 passed in Original Application No. 11 of 1991.
The appellant, Shri M. Sankaranarayanan, made an application before the Central Administrative Tribunal, Bangalore, for quashing the order dated January 4, 1991 transferring and posting him as Secretary High Power Committee for development of Hyderabad, Karnataka area, Bangalore (hereinafter referred to as High Power Committee) as contained in Annexure A 4 to the application made before the Central Administrative Tribunal, and for a direction to allow the applicant, Shri Sankaranarayanan, to continue as the (Chief Secretary, Government of Karnataka.
The aforesaid order of transferring and posting the appellant as Secretary, High Power Committee was challenged mainly on two grounds, namely, that such order was not passed bona fide for the exigencies of the administration but the same was passed mala fide by the Chief Minister of Karnataka who became displeased with the appellant on account of his unfavourable attitude and resistance to some of the proposals of the Chief Minister in the matter of posting of senior officers of the State to different key posts.
It was also contended that his transfer order is vitiated because of the non compliance of the procedural formalities for a valid transfer of the appellant to the said post of Secretary, High Power Committee inasmuch as there was no declaration under Rule 9 (1) of IAS (Pay) Rules, 1954 that the post of Secretary, High Power Committee, was equivalent to the post of Chief Secretary and in the absence of such declaration the transfer of the appellant from the post of Chief Secretary to the Secretary, High Power Committee, was illegal and void.
To appreciate the relevant contentions made by the appellant and the respondents before the Central Administrative Tribunal and also before this Court at the hearing of the appeal, the backdrop of the events resulting in the impugned order of transfer and posting of the appellant and consequential challenge of such order by the appellant, requires to be indicated in short.
The appellant, Shri Sankaranarayanan, was appointed to the Indian Administrative Service (Karnataka Cadre) in 1957 and on May 5,1990 he was holding the post of Additional Chief Secretary to the Government of Karnataka.
By Notification dated May 5, 1990, he was appointed as Chief Secretary to the Karnataka Government until further orders.
In the State of Karnataka, there was originally one post of Chief Secretary to the Government.
By an Order dated October 17, 1980, and ex cadre post of Additional Chief Secretary was created with a declaration under Rule 9(1) of IAS (Pay) Rules that the status and responsibilities of the said post were equivalent to the cadre post of Chief Secretary.
The post of Additional Chief Secretary was thereafter en cadred by Notification dated January A(), 1987 with the same pay as of the post of Chief Secretary.
The post of Secretary, High Power Committee, was created by the State Government of Karnataka in 1989 with the designation Chairman, Hyderabad, Karnataka Development Board by order dated September 27, 1989.
The said post was declared equivalent to the status and responsibilities to the cadre post of Additional Chief Secretary under Rule 9 of IAS (Pay) Rules.
The posts of Chief Secretary, Secretary, High Power Committee and Additional Chief Secretary carry equal pay.
On January 3, 1991, the Cabinet Government of Karnataka took a decision to the effect that a change of the Chief Secretary should be effected.
Pursuant to such cabinet decision, the Chief Minister, on January 4, 1991, had taken the following three decisions and passed consequential orders namely (i) declaring that the post of Secretary, High Power Committee, was equivalent in status and responsibilities to the post of Chief Secretary of the Government, (ii) transferring the appellant, Shri Sankaranarayanan, to the post of Secretary, High Power Committee with immediate effect and (iii) appointing the 4th respondent, Shri N.K. Prabhakar Rao, who was holding the post of Chief Secretary to the Government.
It may be noted in this connection that Shri Prabhakar Rao is senior to Shri Sankaranarayanan as a member of the Indian Administrative Service.
The Notification giving effect to the above orders of transfer was issued on January 4, 1991 but the authenticated Government order declaring the equivalent of two posts under Rule 9 of IAS (Pay) Rules, was issued on the next day, namely, January 5, 1991.
The appellant, Shri Sankaranarayanan, contended in his application before the Central Administrative Tribunal that the appellant was in the office of Chief Secretary when Shri Veerendra Patil was the Chief Minister of Karnataka.
There was an intensive anti corruption drive against the senior bureaucrats including the 4th respondent through the instrumentality of Lok Ayukta.
One such Officer was Shri J. Alexender, IAS, who was suspended while he was holding the post of the Chairman and Managing Director of the Mangalore Chemicals and Fertilisers Ltd. but when Shri Alexender obtained a stay order from the Central Administrative Tribunal, the appellant, in the best interest of administration suggested that Shri Alexender should not be given the post of Secretary of the Department of Industry and Commerce but he should be given a posting in a Less sensitive post hut such suggestion of the appellant was not accepted by the third respondent, namely, the present Chief Minister of Government of Karnataka, Shri section Bangarappa.
Similarly, when a proposal to replace Shri Sangameswar, IAS, from the post of Managing Director of the Mysore Sales International Ltd. and post one Shri Madhu in Place of Shri Sangameswar came up for consideration, the appellant pointed out to the Chief Minister about the propriety in making such a change particularly when Shri Sangameswar was keen in defending the cases filed against the Government in the Supreme Court and his other actions were also appreciated by his superiors and Shri Madhu had indicated his reluctance to accept the post in his letter to the Government in view of the fact some of his relatives happened to be excise contractors.
But the third respondent did not like his suggestion and directed the posting of Shri Madhu as Managing Director, Mysore Sales International Ltd. The third respondent also did not like to pass orders on the files containing the irregularities committed by the fourth respondent while holding high offices in the State during the period between 1983 and 1989.
These files contained 41st report of the Public Undertaking Committee recommending enquiry into tile imprudent decisions taken by the 4th respondent as Chairman and Managing Director of the New Government Electric Factory, Bangalore.
Accordingly, at the instance of the then Minister of Industries and Commerce an enquiry had been undertaken through Lok Ayukta.
The Report submitted after the enquiry indicated prima facie case against the 4th respondent warranting further departmental actions.
The former Chief Minister made enquiries about these matters and the appellant also furnished further necessary information to the then Chief Minister who referred the matter to the Personnel Department of Administrative Reforms.
The Secretary, Department of Personnel and Administrative Reforms suggested for initiation of departmental action against the fourth respondent.
The fourth respondent made a suggestion to the Government seeking permission for voluntary retirement.
But after the Ministry headed by the then Chief Minister, Shri Veerendra Patil, was dismissed and the President 's rule was imposed in the State, the fourth respondent withdrew his letter seeking voluntary retirement.
The appellant put up all the files before the third respondent for appropriate orders in view of the fact that the previous Chief Minister did not take any final decision regarding the proposal to initiate disciplinary action against the fourth respondent.
But the third respondent keep the files without passing any orders.
It was contended by the appellant that since the appellant was not prepared to lies and to compromise with the desires of the Chief Minister, the Chief Minister, namely, the respondent No. 3, became displeased with him and opposed some of his suggestions relating to the posting of senior bureaucratic officers.
The appellant has contended that he was sought to be transferred with undue haste from the post of Chief Secretary to the post of Secretary, High Power Committee, although such post was inferior to the post of Chief Secretary and no declaration under Rule 9 (1) of IAS (Pay) Rules for the equivalence of the said post had been made.
The respondents, namely, the State of Karnataka and the Chief Minister of Karnataka and also the said respondent No. 4 denied the allegations relating to the malice of facts and contended that the allegations relating to the malice of facts were mischievous, malicious, scandalous and vexatious and such allegations were deliberately made to malign the respondents.
The respondents also contended that the post of Secretary, High Power Committee, was equivalent to the post of Additional Chief Secretary and such declaration had been made long back and the post of Additional Chief Secretary and the post of Chief Secretary were also equivalent and inter changeable.
In any event, before giving effect to the order of transfer of the appellant, further declaration was made by the Chief Minister that the post of Secretary, High Power Committee was equivalent to the post of Chief Secretary so that in any event the appellant had no occasion to feel stifled.
Accordingly, there was no occasion to contend that the declaration, required as under Rule 9 (1) of IAS (Pay) Rules, had not been made and the order of transfer was accordingly vitiated for non compliance with the statutory rules.
The Central Administrative Tribunal, after considering the facts and circumstances of the case and hearing the submissions made on behalf of the respective parties, inter alia came to the finding that the freedom to choose a person as the Chief Secretary to the liking of the Chief Minister and the Cabinet on whom there is absolute confidence, is undisputed prerogative and such decision becomes unassailable when it is made in bona fide manner following the statutory formalities applicable to such selection and appointment.
Referring to the decision of this Court made in the case of E.P. Royappa vs State of Tamil Nadu, ; and referring to various observations made in the said decision at length, the Central Administrative Tribunal came to the finding that the appellant had no subsisting right to remain as Chief Secretary and it was the prerogative of the Chief Minister and the Cabinet to take a decision to appoint a person to the post of Chief A Secretary in place of the appellant to whom the Cabinet and the Chief Minister had confidence.
It was held by the Central Administrative Tribunal that the appellant had failed to establish that he had been transferred with the ulterior motive of placing the appellant in a lower post and thereby permanently preventing him from continuing in the position and status of Chief Secretary.
The Administrative Tribunal inter alia held that it is an admitted position that there was a difference of opinion between the appellant and the Chief Minister and such difference had been developing ever since the new Chief Minister had assumed Office.
The Tribunal had also noted that the appellant was also not promoted and posted as Chief Secretary permanently but he was appointed to the post of Chief Secretary until further orders and he continued in that capacity only for eight months without being regularised or confirmed in that post.
The Central Administrative Tribunal also held that there had been only casual collateral challenge by the appellant against the appointment of fourth respondent as the Chief Secretary raising some allegations which could at best be grouped in the category of vague and indefinite allegations.
The Central Administrative Tribunal held inter alia that the applicant had not laid down any firm foundation to hold that the appointment of the 4th respondent as Chief Secretary was bad and unsustainable.
It has been held by the Central Administrative Tribunal that the fourth respondent had already assumed the office of the Chief Secretary and except in making some vague allegations, his appointment as Chief Secretary was not challenged on the score of violation of rules governing the matter.
As such, the Central Administrative Tribunal held that there was no occasion to go into the legality of the posting of fourth respondent as the Chief Secretary of the State.
So far as the other contention made by the appellant, namely, that the transfer order is vitiated in view of the fact that the appellant was sought to be reverted to a lower post in violation of the procedure in Rule 9 (l) of IAS (Pay) Rules and Rule 4 of IAS (Cadre) Rules in concerned, it has been contended by the appellant that a Notification issued on January 5, 1991 declaring the post of Secretary, High Power Committee, as equivalent to the post of Chief Secretary, was of no consequence and could not cure the initial defect inasmuch as prior to such Notification issued on January 5, 1991 declaring equivalence of the said posts, the impugned order of transfer was sought to be effected and the respondent No. 4 was allowed to join the post of Chief Secretary pursuant to the order of transfer of the appellant.
The Central Administrative Tribunal referred to four documents being Annexures 7, 8, 9 & 10 to the application made by the appellant and also the affidavits filed by the parties and accepted the contention of the respondents that the post of the Secretary was declared equivalent to the post of Additional Chief Secretary and the post of Additional Chief Secretary was also declared equivalent to the post of (Chief Secretary, and such declarations had been made ever since 1980 and the appellant was fully aware of the said position.
The Central Administrative Tribunal also accepted the contention of the respondents that in order to avoid any embarrassment and complication, the State Government had also made a declaration on January 4, 1991 prior to the transfer of the appellant that the post of the Secretary, High Power Committee, was equivalent to the post of Chief Secretary but the formal authenticated order declaring the said equivalence was issued next day i.e. January 5, 1991.
There was no delay in issuing the declaration and even assuming that there was a delay of one day in making the formal declaration of equivalence, such delay had not nullified and invalidated the decision of the Government.
Referring to the various decisions of this Court including the decision made in the case of Babulal vs M/s Hazari Lal Kishori Lal and others, [19821 2 SCC p.525, the Central Administrative Tribunal indicated that a deviation from the strict procedure prescribed by law would not vitiate an action taken by the Government or public authority in the interest of public unless it could be shown that such an act had resulted in gross injustice to the affected party.
The Central Administrative Tribunal held that the appellant could not establish that impugned order had caused any serious injury to him.
The Central Administrative Tribunal further held that the appellant had submitted that because of the delay in issuing the declaration strictly in accordance with the Rule 9(1) of IAS (Pay) Rules, the appellant was in dark as to the nature and duties of the post of Secretary, High Power Committee, to which he had been transferred under the impugned order.
The Central Administrative Tribunal held that the form and procedure in Rule 9(1) of IAS (Pay) Rules do not make it obligatory to approach the issue in a judicial or quasi judicial manner and the violation, if any, of Rule 9(1) was only a mere technicality and it did not cause any legal injury or injustice to the appellant.
Such violation, even if any, was not so serious that it required a judicial scrutiny by the Central Administrative Tribunal in the facts and circumstances of the case.
The Central Administrative Tribunal also held that after going through the files leading to the declaration under Rule 9(1) since placed before the Tribunal, the Tribunal was satisfied that the Government had considered the question in detail and sufficiently in advance and had taken a decision to issue the declaration of equivalence on January 4, 1991 and it was a valid decision satisfying the requirement of Rule 9 (1) of IAS (Pay) Rules, 1954.
Referring to the allegations of mala fides, the Central Administrative Tribunal came to the finding that the facts were narrated in paragraphs (1) to (w) of paragraph 6 of the application of the appellant.
The Tribunal categorically came to the finding that there was no firm foundation to find on facts that the impugned order was vitiated by any mala fide.
In that view of the matter, the Central Administrative Tribunal dismissed the application made by the appellant.
As aforesaid, the said decision is under challenge in this appeal.
Mr. Venugopal the learned counsel for the appellant has strenuously contended that declaration of equivalence under Rule 9 (1) of IAS (Pay) Rules, 1954 is an essential statutory requirement and without such declaration of equivalence no member in the cadre of IAS can be transferred to a non cadre post.
He has contended that the declaration of equivalence of the posts of Chief Secretary and Additional Chief Secretary made in 1980 has been highlighted beyond proportion before the Central Administrative Tribunal by the respondents and the Administrative Tribunal was also influenced because of such declaration of equivalence made in 1980.
But such declaration of equivalence is of no consequence and the legal requirement of declaration of equivalence was still there and noncompliance with the requirement of declaration of equivalence has rendered the impugned order of transfer illegal and void.
Mr. Venugopal has contended that previously there was only one post of Chief Secretary in the administrative hierarchy in the State of Karnataka.
It was felt necessary that a post of Additional Chief Secretary should be created and the recommendation to that effect was made when the post of Additional Chief Secretary was not encadred.
A declaration of equivalence was also made by the State Government so that a cadre officer belonging to the Indian Administrative Service may be transferred to the non cadred post of Additional Chief Secretary but later on, the post of Additional Chief Secretary was encadred on the basis of triennial review.
After such encadrement of the post of Additional Chief Secretary, the declaration of equivalence which was made earlier lost its force.
Mr. Venugopal has submitted that the question of equivalence comes in when one post is outside the cadre post of Indian Administrative Service.
Mr. Venugopal has contended that equivalence is referable only to an ex cadre post and ex hypothesi dedaration of equivalence cannot come inter se posts within the cadre.
Accordingly, all the previous exercises made in declaration of equivalence when the post of Additional Chief Secretary was not a cadre post are of little consequence.
Mr. Venugopal has also contended that the posts of Additional Chief Secretary and Chief Secretary are not equivalent in reality.
The post of Chief Secretary is the highest post in the administrative set up in the State.
Mr. Venugopal has referred to the Office Memorandum dated September 2, 1988 at page No. 127 of Volume Il A of the Paper Book of this appeal, for the purpose of showing that the post of Chief Secretary is superior post because Additional Chief Secretary is to report to the Chief Secretary.
He also made reference to the Karnataka Government (Transfer of Business) Rules, 1977 and contended that reference to various provisions of the Rules would indicate that the post of Chief Secretary is the highest post and the reports of different Secretaries including Additional Chief Secretary are required to be routed through Chief Secretary but no Report of the Chief Secretary is ever required to be routed through Additional Chief Secretary or any other Officer.
He has submitted that a mere dedaration that the post of Additional Chief Secretary is equivalent to the post of Chief Secretary will not make both the said posts equivalent.
Mr. Venugopal has also contended that as a matter of fact, the respondents felt difficulty in transferring the appellant lo the post of Secretary, High Power Committee, because the said post was declared equivalent to the post of Additional Chief Secretary and not to the post of Chief Secretary.
Precisely for the said reason, after the impugned order of transfer, an attempt was made to publish a declaration on January 5, 1991 to the effect that the post of Chief Secretary is equivalent to the post of Secretary, High Power Committee.
Mr. Venugopal has contended that the post of Secretary, High Power Committee, cannot be equivalent to the post of Chief Secretary of the State which is highest post and in any event the post facto declaration of equivalence on January 5, 1991 cannot cure the initial defect of not declaring equivalence of the post in question prior to the order of transfer made on January 4, 1991.
Mr. Venugopal has submitted that the appellant may not have an absolute right to remain in the post of Chief Secretary and for good administrative reasons the Cabinet and the Chief Minister may have a prerogative to select a person of their confidence to the post of Chief Secretary but the appellant having been appointed as Chief Secretary can only be removed from the said post for good administrative reasons but not for any oblique purpose.
The appellant could have been transferred from the post of Chief Secretary to a suitable post which was equivalent to the post of Chief Secretary only in accordance with law and a declaration of equivalence under Rule 9 (1) of IAS (Pay) Rules was an essential sine qua non for transferring an incumbent holding the post of chief Secretary to any other ex cadre post.
Mr. Venugopal has contended that declaration of equivalence of a cadre post with a non cadre post is a statutory requirement under Rule 9(1) of IAS (Pay) Rules.
Such statutory requirement must be strictly complied with.
So long the declaration of equivalence made by the competent authority is not published in accordance with the procedure under Rule 9(1), no equivalence takes place and in the absence of equivalence, no cadre officer can be posted to a non cadre post.
Admittedly, the impugned order of transfer of the appellant was made on January 4, 1991 and the respondent No. 4 purported to assume the office of the Chief Secretary on January 4, 1991.
But the declaration of equivalence was made on 5.1.1991 i.e. after the impugned order of transfer.
Hence, the impugned order of transfer of the appellant is illegal on the face of it and subsequent declaration of equivalence cannot cure the invalidity of the order of transfer.
On this score alone the impugned order is liable to be quashed.
Mr. Venugopal has further contended that the Central Administrative Tribunal failed to appreciate that in reality the posts of Chief Secretary and Additional Chief Secretary were not inter changeable and declaration of equivalence made earlier had lost its force after the encadrement of the post of Additional Chief Secretary.
Mr. Venugopal has also submitted that it is not always possible and practicable to precisely establish mala fide in fact but the Court should draw reasonable inference from the pleadings whether there was any foundation of mala fide action.
Mr. Venugopal has contended that the appellant has given instances how he gradually incurred displeasure of the present Chief Minister when his suggestions for posting senior bureaucratic officers of the State G in key and sensitive positions, contrary to the desire of the Chief Minister, were not liked by the Chief Minister.
Mr. Venugopal has contended that the respondent No. 4 was found prima facie guilty of various administrative lapses of serious nature over the years.
During the regime of the previous Chief Minister of the State, Shri Veerendra Patil, enquiries had been conducted at a high level and recommendations were made for initiating departmental proceedings.
Unfortunately, before any formal order could be passed by the then Chief Minister, Shri Veerendra Patil, the Ministry was dissolved and the President 's rule was imposed.
Thereafter, the present Chief Minister came to head the Cabinet of the State.
The appellant as a Chief Secretary of the State was duty bound to place all the relevant files for appropriate directions of the Chief Minister so far as the respondent No. 4 is concerned.
When the appellant placed all the relevant files, it was only reasonably expected that the present Chief Minister would pass formal orders for initiating departmental proceedings against the respondent No. 4 but for inexplicable reasons, the present Chief Minister held back the files without passing any order.
Even in the matter of posting of Shri Alexander, Sri Sangmeswar and Sri Madhu, the appellant indicated cogent reasons relating to the posting; desired by the Chief Minister and normally reasonings indicated by the appellant were not expected to be over ruled by the Chief Minister in the interest of purity in administration.
But, unfortunately, such suggestions had been overruled by the Chief Minister.
Mr. Venugopal has contended that in the backdrop of the events disclosed in various subparagraphs, namely, paragraphs 6(1) to 6(q) of the petition made before the Tribunal it should have come to the finding that a case of malice in fact had been established prima facie and the respondents were under an obligation to dispel the reasonable inferences to be drawn by the Tribunal about the existence of malice in facts.
Unfortunately, the Tribunal has not considered the question in the proper perspective.
Mr. Venugopal has submitted that since the posting of respondent No. 4 as Chief Secretary was not directly challenged by the appellant and infraction of any statutory provisions could not be established by the appellant so far as the posting of respondent No. 4 is concerned, the Tribunal has proceeded on the footing that such posting, therefore, is not required to be interfered with and consequently the challenge to the transfer and posting of the appellant cannot also be sustained.
Mr. Venugopal has contended that such approach, to say the least, is unsatisfactory and requires a re thinking.
Mr. Venugopal has contended that when the former Chief Secretary went on leave prior to his retirement, the appellant 's case was considered and in view of his excellent track record over the past 33 years as a member of the Indian Administrative Service in the Karnataka cadre, the appellant was found to be most suitable candidate to hold the post of Chief Secretary and he was made the Chief Secretary.
Simply because the appellant was appointed as the Chief Secretary until further orders, such appointment and posting do not necessarily mean that he was holding the said post only as a stop gap measure.
Mr. Venugopal has contended that it is nobody 's case that the Government of Karnataka did not intend to appoint and post the appellant as Chief Secretary of the State and such posting was made only by way of a stop gap measure until suitable person could be selected and later on the respondent No. 4 was posted as Chief Secretary on appropriate consideration of the cases of all the eligible officers of the State.
Mr. Venugopal has contended that the order of transfer of the appellant and also the order of posting of respondent No. 4 had taken place simultaneously in undue haste even without making declaration of equivalence.
It only indicates that there had not been any bona fide and proper exercise to find out the most suitable person for the post of Chief Secretary in the normal way.
He has submitted that although no specific pleading was made by the appellant before the Tribunal that in order to find a berth for the respondent No. 4, the appellant was moved out against the interest of the administration and the respondent No. 4 was appointed as Chief Secretary of the State, there is sufficient material to indicate that the Chief Minister was bent upon to move out the appellant from the post of Chief Secretary who had always resisted improper suggestions of the Chief Minister in the better interest of the administration and to give effect to such improper decision not on the score of administrative exigencies or for public interest, the impugned order of transfer was made.
On the face of the adverse materials on record and the recommendations made by the appropriate Committee to initiate disciplinary proceedings against the respondent No. 4, there could not have been any administrative exigency to place the respondent No. 4 incharge of the highest Administrative office in the State.
Mr. Venugopal has submitted that mala fide in fact needs to be considered from the totality of the facts and circumstances by drawing reasonable inferences.
There cannot be a straight jacket formula to which every case of malice of fact can fit in.
Mr. Attorney General appearing with the Advocate General of the State of Karnataka for the respondents Nos. 1 and 3, namely, the State of Karnataka and the Chief Minister of Karnataka, has submitted that the post of Chairman, Karnataka Hyderabad Development Board was created on September 1, 1989 and the respondent No. 4 who was holding a very high and responsible office at the relevant time.
The respondent No. 4 is a very senior member of the Indian Administrative Service in the Karnataka cadre and admittedly senior to the appellant as a member of the Indian Administrative Service.
The said respondent No. 4 was appointed to the post of Chairman, Karnataka Hyderabad Development Board.
The said post was declared as equivalent to the post of Additional Chief Secretary on September 27,1989 when the said post was created.
Later on, on October 11, 1989, the said post of Chairman was re designated as Secretary, High Power Committee and ex officio Additional Chief Secretary to the Government of Karnataka.
Mr. Attorney General has contended that simply because adverse comments were made on the functioning of the respondent No. 4 when he was holding the post of Chairman of some other organisation or the Secretary, High Power Committee, there was no compelling necessity of by passing a very senior officer in the Indian Administrative Service cadre in the State.
Since the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary, there had been a necessity to find out a competent senior officer in the Indian Administrative Service Cadre in the State.
As no departmental proceedings had been pending against him, the Cabinet and the Chief Minister had taken a decision that Mr. Rao, respondent No. 4, being the senior most person in the Indian Administrative Service cadre in the State, having a long experience in different administrative set up and conversant with the problems of the State should be posted as Chief Secretary.
Such decision is not ex facie perverse and unjustified.
He has contended that even if it is assumed that instead of respondent No. 4, some other officer would have been selected for the post of Chief Secretary, such selection being a prerogative of the Cabinet and the Chief Minister, the appellant cannot question the correctness and propriety of the same.
The Central Administrative Tribunal is justified in its finding that there has not been any direct challenge to the appointment of the respondent No. 4 to the post of Chief Secretary and the appellant could not establish that any statutory rule has been violated in giving appointment to the respondent No.4 to the post of Chief Secretary.
Mr. Attorney General has also contended that the law is well settled after the decision of this Court in E.P. Royappa (supra) that it is the prerogative of the State Cabinet and the Chief Minister to select a person of their confidence to man the key post G of Chief Secretary in the State.
The only exercise which is required to be made by Court of law or a Tribunal is to find out whether in removing the holder of the post of Chief Secretary, any mala fide action has been taken.
The Tribunal, according to the learned Attorney General, is justified in holding that except making some vague allegations, no firm foundation has been laid by the appellant to warrant a finding that the impugned order of transfer Or the appellant is actuated by a malice in fact or malice in law.
A Mr. Attorney General has submitted that the Tribunal has indicated that the Chief Secretary had not been pulling on well with the Chief Minister of the State, and there had been differences of opinion on a number of matters from before.
If on such account, the Government and the Chief Minister felt that a man of their confidence should be posted as the Chief Secretary of the State so that there was a good rapport between the Chief Secretary and the Chief Minister and the Cabinet, no exception can be made and such decision being squarely within the prerogative of the Chief Minister and the Cabinet as indicated by this Court in no uncertain terms in Royappa 's decision, the Central Administrative Tribunal was justified in declining to interfere against the impugned orders.
Mr. Attorney General has contended that allegations of mala fide action on the part of the Chief Minister or the Cabinet must be substantiated by cogent materials and not by vague insinuations.
In the pleadings, the appellant has only indicated several instances showing how he assessed the facts in giving suggestions in the matter of posting of different top bureaucratic officers including respondent No. 4 and how his suggestions had not been ultimately accepted by the Chief Minister.
Such facts by no stretch of imagination establish a case of mala fide action of the State Government in transferring the appellant from the post of Chief Secretary.
Mr. Attorney General has contended that in order to overcome the decision of the Tribunal, on the pleadings made before the Tribunals, the appellant has attempted to introduce a new case in paragraph 20 of the special leave petition by setting up the appointment of respondent No. 4 as both proof and result of the 4 Chief Minister 's mala fides.
To make it a triable issue, ground 'k ' has been taken in the special leave petition.
But introduction of a new case for the first time before this Court by way of embellishment cannot be permitted.
He has contended that the said new case is far from truth and is an after thought deserving outright rejection.
Mr. Attorney General has also contended that by virtue of holding a particular administrative position, an incumbent of the post may have the privilege to have the reports of other senior bureaucratic officers routed through him under the prevalent rules of business.
Such facts alone do not establish that such post is superior to other post.
If there has been a declaration of equivalence under Rule 9(1) of IAS (Pay) Rules, the post must be held to be equivalent irrespective of the fact that because of the rules of business one of the two equivalent posts enjoys some advantage or privilege.
Mr. Attorney General has contended that the declaration in 1980 was made under Rule 9(1) of IAS (Pay) Rules to the effect that the post of Additional Chief Secretary which was then an ex cadre post was equivalent to the post of Chief Secretary.
Although, subsequently the post of Additional Chief Secretary was encadred, the declaration of equivalence has not lost its force as sought to be contended by Mr. Venugopal.
Mr. Attorney General has contended that even assuming that after the encadrement there was no further scope of declaring equivalence, the fact remains that there had been appreciation and understanding of the State Government about the importance of the two posts and factual assessment of equivalence of the two posts.
He has contended that in any event, such question has become academic in the instant case because pursuant to the Cabinet decision, an exercise was made on January 4, 1991 to declare the post of Secretary, High Power Committee, as equivalent to the post of Chief Secretary itself so that there may not be any occasion for the appellant to feel stifled.
Such decision had taken place prior to the impugned order of transfer but the publication could not be made on the same day, namely, January 4, 1991 but such publication of equivalence under Rule 9 (1) was made on the very next day, namely, on January 5, 1991.
Mr. Attorney General has contended that publication on the next day docs not invalidate the factum of declaration made on January 4, 1991.
Such publication being a requirement of statute has been complied with and the publication has been made in order to give effect to the decision of declaring equivalence already taken.
Mr. Attorney General has contended that it has been specifically stated by the Chief Minister in his affidavit in opposition that declaration of equivalence was made on January 4, 1991 prior to the impugned order.
Mr. Attorney General, has also submitted that even if it is assumed that the publication of declaration of equivalence was made on January 5, 1991 but the impugned order of transfer was made on January 4, 1991, and by that process there has been violation of Rule 9(1) of IAS (Pay) Rules, such violation is a mere technical violation for which no interference by this Court is called for.
He has submitted that Central Administrative Tribunal was justified in coming to the finding that no real injury was caused to the appellant for such technical violation, even if any, and as such no interference was called for by the Tribunal against the impugned order of transfer.
Mr. Attorney General has contended that interference under Article 136 of the Constitution is not a matter of course.
Such interference is required to be made if it conforms both to equity and law.
In the facts and circumstances of the case, the appellant has not been able to make out any case for such interference within the discretionary remedy of this Court and the appeal should, therefore, be dismissed.
Mr. Attorney General has also submitted that the appellant is guilty of suppression of material facts.
After the impugned order of transfer, in view of some statements made by the appellant to the Press against Chief Minister, a decision was taken to initiate disciplinary proceeding against the appellant and he was placed under suspension.
Such suspension was challenged by the appellant before the Central Administrative Tribunal, Bangalore, in Application No. 78 of 1991 and an interim order of stay of the order of suspension was passed in the said proceeding, but subsequent to the filing of the instant special leave petition before this Court, the interim order of stay was vacated by the Administrative Tribunal.
In the aforesaid facts, the factum of suspension was required to be disclosed by the appellant.
Mr. Attorney General has contended that for suppression of material facts, this Court should refuse to interfere in this appeal and should dismiss the same.
He has also contended that in view of order of suspension, the appellant, in any event, cannot be permitted to hold or continue to hold the post of Chief Secretary.
After considering the respective contentions of the learned counsels appearing for the parties, it appears to us that the appellant has not been able to lay any firm foundation warranting a finding that the impugned order Of transfer was passed mala fide and/or for an oblique purpose in order to punish the appellant and/or to humiliate him.
The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State.
Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him.
It may not always be possible to demonstrate malice in fact with full and G elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established.
But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.
In the instance case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn.
It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters.
If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the administrative authority.
The position in this regard has been well explained in Royappa 's case by this Court.
So far as the other contention of the appellant, namely, invalidity of the impugned order of transfer for want of declaration of equivalence under Rule 9(1) of IAS (Pay) Rules is concerned, it may be indicated that there had already been a declaration when the re designated post of Secretary, High Power Committee, was established that the said post was equivalent to the post of Additional Chief Secretary.
It is the positive stand of the State Government that the posts of Chief Secretary and the Additional Chief Secretary are equivalent.
But in the instant case, it is also not necessary to decide the question in detail as to whether in reality both the said posts are not equivalent as sought to be contended by Mr. Venugopal.
It appears to us that prior to the impugned orders, a decision to declare the post of Secretary, High Power Committee, equivalent to the post of Chief Secretary of the State had been taken.
Since the impugned order of transfer was implemented with immediate effect, the formal publication could not be made on the very same day but was made on January 5, 1991, namely, on the very next day.
It appears from the records that the decision to declare equivalence was taken prior to the impugned order of transfer and the formal publication by way of statutory requirement was made in order to give effect to the decision to declare equivalence already taken.
In such circumstances, we do not think that the formal declaration made on January S, 1991 invalidates the impugned order of transfer.
The Tribunal is justified in holding that infraction, even if any, in making publication formally on January S, 1991, is only a technical violation for which no interference is called for.
In the result, we do not find any reason to interfere with the impugned decision of the Central Administrative Tribunal and the appeal, therefore, fails and is dismissed but without any order as to costs.
| The appellant was appointed to the Indian Administrative Service (KARNATAKA Cadre) in 1957, and on May 5, 1990 he was holding the post of Additional Chief Secretary to the Government of KARNATAKA, and by a Notification dated May 5, 1990 was appointed a Chief Secretary to the KARNATAKA Government until further orders.
In the State of KARNATAKA there was originally one post of Chief Secretary to the Government.
An ex cadre post of Additional Chief Secretary was created with a declaration under Rule 9(1) of IAS (Pay) Rules that the status and responsibilities of the said post were equivalent to the cadre post of Chief Secretary, and this post was thereafter encadred by Notification dated January 30, 1987 with the same pay as of the post of Chief Secretary.
The post of Secretary, High Power Committee, was created by the State Government of Karnataka in 1989 with the designation Chairman, Hyderabad, Karnataka Development Board by order dated September 27, 1989, and was declared equivalent to the status and responsibilities to the cadre post of Additional Chief Secretary under Rule 9 of IAS (Pay) Rules.
The posts of Chief Secretary, Secretary, High Power Committee and Additional Chief Secretary thus carried equal pay.
On January 3, 1991, the Cabinet Government of Karnataka took a decision to the effect that a change of the Chief Secretary should be effected, and pursuant thereto, the Chief Minister on January 4,1991 took the following three decisions, and passed consequential orders viz; (i) declaring that the post of Secretary, High Power Committee, was equivalent in status and responsibilities to the post of Chief Secretary to the Government, (ii) transferring the appellant, to the post of Secretary, High Power Committee with immediate effect, and (iii) appointing the 4th respondent, who was senior to the appellant to the post of Chief Secretary to the Government.
The Notification giving effect to the above orders of transfer was issued on January 4, 1991 but the authenticated Government order declaring the equivalent of the two posts under Rule 9 of lAS (Pay) Rules, was issued on the next day, viz; January 5, 1991.
The appellant made an application before the Central Administrative Tribunal, Bangalore for quashing the order dated January 4, 1991 transferring and posting him as Secretary, High Power Committee for Development of Hyderabad, Karnataka area, Bangalore, and for a direction to allow him to continue as the Chief Secretary.
The order was challenged mainly on two grounds: (1) that such order was not passed bona fide for the exigencies of the administration but the same was passed mala fide by the Chief Minister of Karnataka who became displeased with the appellant on account of his unfavourable attitude and resistance to some of the proposals of the Chief Minister in the matter of posting of senior officers of the State to different posts, and (2) that the transfer order was vitiated because of non compliance of the procedural formalities for a valid transfer of the appellant as there was no declaration under Rule 9(1) of IAS (Pay) Rules, 1954 that the post of Secretary, High Power Committee was equivalent to the post of Chief Secretary.
The respondents viz; State of Karnataka, the Chief Minister as also respondent No. 4 denied the allegations relating to the malice of facts and contended that they were mischievous, malicious, scandalous and vexatious and such allegations were deliberately made to malign the respondents, and contended that the post of Secretary, High Power Committee, was equivalent to the post of Additional Chief Secretary and such declaration had been made long back, and the post of Additional Chief Secretary and the post of Chief Secretary were also equivalent and interchangeable, and that the appellant can have no grievance against the said orders of transfer, and that there is also no occasion to contend that the declaration, required as under Rule 9(1) of IAS (Pay) Rules had not been made.
The Central Administrative Tribunal after considering the facts and circumstances came to the finding that the freedom to choose a person as the Chief Secretary to the liking of the Chief Minister and the Cabinet on whom there is absolute confidence, is undisputed prerogative, and such decision becomes unassailable when it is made in bona fide manner following the statutory formalities applicable to such selection and appointment, and that the appellant had no subsisting right to remain as Chief Secretary and it was the prerogative of the Chief Minister and the Cabinet to take a decision to appoint a person to the post of Chief Secretary.
The Tribunal also held that the appellant had failed to establish that he had been transferred with the ulterior motive of placing him in a lower post and thereby permanently preventing him from continuing in the position and status of Chief Secretary.
The application was accordingly dismissed.
Aggrieved by the aforesaid order of dismissal the appellant appealed to this Court by Special leave and contended that the declaration of equivalence under Rule 9(1) of IAS (Pay) Rules, 1954 is an essential statutory requirement and without such declaration of equivalence no member in the cadre of IAS can be transferred to a non cadre post, and after encadrement of the post of Additional Chief Secretary the declaration of equivalence which was made earlier lost its force, and that equivalence is referable only to an ex cadre post and ex hypothesi declaration of equivalence cannot come in inter se posts within the cadre.
It was also submitted that the order of transfer of the appellant and also the order of posting of respondent No. 4 had taken place simultaneously in undue haste even without making a declaration of equivalence and this only indicates that there had not been any bona fide and proper exercise to find out the most suitable person for the post of Chief Secretary in the normal way.
The Attorney General appearing with the Advocate General of the State of Karnataka for respondent Nos. 1 and 3, namely, the State of Karnataka and the Chief Minister of Karnataka, opposed the appeal and submitted that the post of Chairman, Karnataka Hyderabad Development Board was created on September 1, 1989 and respondent No. 4 was holding a very high and responsible office at the relevant time, and senior to the appellant as a member of the Indian Administrative Service, and that since the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary, there had been a necessity to find out a competent senior officer in the Indian Administrative Service Cadre in the State, that as no departmental proceedings had been pending against him the Cabinet and the Chief Minister had taken a decision to appoint Respondent No. 4 being the seniormost person in the Indian Administrative Service cadre in the State, having a long experience in different administrative set up and conversant with the problems of the State as Chief Secretary, and such decision is not ex facie perverse and unjustified.
Dismissing the appeal, this Court, HELD: 1.
The appellant has not been able to lay any firm foundation warranting a finding that the impugned order of transfer was passed mala fide and/or an oblique purpose in order to punish the appellant and/or to humiliate him.
[387 E] In the instant case, the pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State.
Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him.[387 F] 2.
It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters.
If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the administrative authority.
[388 B] 3.
It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established.
But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.
[387 G] 4.
So far invalidity of the impugned order of transfer for want of declaration or equivalence under Rule 9(1) of IAS (Pay) Rules is concerned, it is indicated that here had already been a declaration when the re designated post of Secretary, High Power Committee, was established that the said post was equivalent to the post of Additional Chief Secretary.
It is the positive stand of the State Government that the post of Chief Secretary and the Additional Chief Secretary are equivalent.
[388 C D] 5.
Prior to the impugned orders, a decision to declare the post of Secretary, High Power Committee equivalent to the post of Chief Secretary of the State had been taken.
Since the impugned order of transfer was implemented with immediate effect, the formal publication could not be made on the very same day but was made on January 5,1991, viz., on the very next day.
In such circumstances the formal declaration made on January 5,1991 does not invalidate the impugned order of transfer.
[388 E Fl E.P. Royappa vs State of Tamil Nadu, AIR 1974 S.C. 555, relied on.
|
Appeal No. 124 of 1962.
Appeal by special leave from the judgment and order dated November 14, 1960, of the Punjab High Court (Circuit Bench), Delhi in Civil Revision Case No. 224 D of 1959.
Janardan Sharma, for the appellant.
R.Ganapathy Iyer and P. D. Menon, for the respondents.
September 25.
The judgment of the Court was delivered by 231 DAS GUPTA J.
This appeal by special leave raises the question of validity of r. 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, that were framed by the President and published by a notification dated February 28, 1957.
Rule 12(4) is in these words : "12(4).
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him, on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
" The question arises in this way.
On July 1, 1949, the appellant, who was a permanent Sub Inspector of Co operative Societies, Delhi, was suspended by the Deputy Commissioner, Delhi,.
On July 9 he was served with a charge sheet under r. 6(1) of the Rules which had been framed by the Chief Commissioner, Delhi.
On a consideration of the report made by the officers, who had held an enquiry into the several charges against him the Deputy Commissioner, Delhi, made an order on December 17, 1951, dismissing this appellant.
The appellant filed a suit on May 20, 1953, praying for a declaration that the order of dismissal made against him was invalid in law being in violation of article 311 of the Constitution of India and for a further declaration that, he still continued to be in service of the Government.
232 The Trial Court decreed the suit on May 3 1, 1954, declaring that the plaintiff 's dismissal was void and inoperative and that the plaintiff continued to be in service of the State of Delhi at the date of the institution of the suit.
The appeal by the Government of India was dismissed by the Senior Subordinate judge, Delhi on December 31, 1954.
The decree was however set aside by the Punjab High Court on November 1, 1955, in Second Appeal by the State and the suit was dismissed.
Against this decision of the High Court, the appellant preferred an appeal by special leave to this Court.
This Court held that the provisions of article 311(2) had not been fully complied with and the appellant had not had the benefit of all the constitutional protections and accordingly, his dismissal could not be supported.
The Court then passed the following order : "We, therefore, accept this appeal and set aside the order of the Single judge and decree the appellant 's suit by making a declaration that the order of dismissal passed by the Deputy Commissioner on December 17, 1951 purporting to dismiss the appellant from service was inoperative that the appellant was a member the service at the date of the institution of the suit out of which, this appeal has arisen.
The appellant will get costs throughout in all courts.
Under Order XIV Rule 7 of the Supreme Court Rules, we direct that the appellant should be paid his fees which we assess at Rs. 250".
The judgment of this Court wag delivered on December 13, 1957, and is reported in [1958] Supreme Court Reports at page 1080.
233 On April 20, 1955, i.e., shortly after the Government appeal had been dismissed by the Senior Subordinate judge, the appellant instituted a suit in the Court of the Senior Sub judge, Delhi, out of which the present appeal has arisen.
The defendants in this suit are: 1.
The Union of India; 2.
The State of Delhi; and 3.
The Collector and Registrar, Co operative Societies, Delhi.
In this suit the plaintiff claims, on the basis of the decree obtained by him in the earlier suit, a sum of Rs. 14,042/8/ as arrears of salary 'and allowances.
The hearing of the suit was however stayed by the Trial Court on December 26, 1955, in view of the pendency of the appellant 's appeal in this Court against the decision of the Punjab High Court dismissing the earlier suit.
As already stated, this Court delivered the judgment in that appeal on December 13, 1957.
On December 26, 1957, the appellant made an application to the Trial Court praying that the hearing of the suit be taken up.
Before, however, the suit could be disposed of, the defendants made an application to the Subordinate judge, on August 7, 1958 stating that the disciplinary authority had on a consideration of the circumstances of the case, decided to hold a further enquiries against this appellant on the allegations on which he had been originally dismissed and that, consequently, the appellant should be deemed to have been placed under suspension by the appointing authority from December 17, 1951, the date of the original order of dismissal.
Accordingly, it was contended by the defendants that the plaintiff 's claim in the present suit was untenable.
On February 14, 1959, the Trial Court made an order in these terms " 'It is hereby ordered that the proceedings in the case shall remain stayed until the time the order of suspension is revoked under Rule (5) of the Central Civil Service (Classification, Control and Appeal) Rules, 1957 referred to above 234 or its being set aside by a competent tribunal or authority whichever event occurs earlier.
The hearing of the suit is adjourned sine die and the proceedings shall be revived on the application of the plaintiff after the occurrence of any of the two events referred to above.
" Against this order the appellant filed a revisional application in the Punjab High Court challenging the validity of r. 12(4) of the Central Civil Service (Classi fication, Control and Appeal) Rules, 1957.
A Division Bench of the High Court dismissed the revision petition rejecting the appellant 's contention against the validity of r. 12(4).
Against that decision of the High Court the appellant has filed the present appeal after obtaining special leave from this Court.
It is clear that if r. 12(4) of the Central Civil Service (Classification, Control and Appeal) Rules, 1957,is valid the appellant must be deemed to have been placed under suspension from December 17, 1951.
For, it is not disputed that after the penalty, of dismissal imposed on him had been rendered void by the decision of this Court, the disciplinary authority did in fact decide to hold a further enquiry against him on the allegations on which this penalty of dismissal had originally been imposed.
It is equally clear that if the appellant be deemed to have been placed under suspension from December 17, 1951, the order made by the Trial Court staying the hearing of the suit and the order of the High Court rejecting the revisional application are not open to challenge.
The sole question therefore is whether r. 12(4) is valid in law.
This rule forms part of the rules made by the President in exercise of the powers conferred on him by the proviso to article 309 and cl. 5 of article 148; of the Constitution.
The main provisions of article 309 is that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of per sons appointed, to public services and posts in connection 235 with the affairs of the Union or of any State.
The proviso to this Article makes it competent for the President or such other person as he may direct, in the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article.
Clause 5 of article 148 makes a similar provision in respect of ' the conditions of service in the Indian Audit and Accounts Department and provides inter alia that subject to the provisions of the Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.
Mr. janardan Sharma rightly contends that this lower of the President to make rules is subject to all the provisions of the Constitution and consequently if in making the rule the rule making authority has contravened any of the provisions of the Constitution the rule is invalid to the extent of such contravention.
According to Mr. Sharma r. 12(4) contravenes the provisions of article 142, article 144, article 19(1) (f), article 31 and also article 14 of the Constitution.
The argument that the impugned Rule contravenes article 142 and article 144 is practically the same.
Article 142 provides inter alia that any decree passed by the Supreme Court in the exercise of its jurisdiction shall be enforceable throughout the, territory of India in such manner as may be prescribed by or under any law made by Parliament and until provision in that behalf is so made, in such manner as the President may by order prescribe.
Article 144 provides that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
Mr. Sharma 's argument as far as we could 236 understand it is that under these provisions of articles 142 and 144 a duty lay on the President to do all that was necessary to give effect to the decree made by this Court in the earlier appeal and that by framing r. 12(4) the President has, in effect, gone against the directions of this Court as contained in that decree.
In our judgment, there is no substance in this contention.
If the decree of this Court had directed payment of arrears of appellant 's salary and allowances and the effect of the rule made by the President was to deprive him of that right there might perhaps have been scope for an argument that the rule contravened the provisions of article 144.
The decree made by this Court did not however contain any direction as regards payment of salary and allowances.
It did contain a direction that the appellant will get his costs throughout in all courts.
Quite clearly, however, the impugned rule does not in any way affect that right of the appellant.
The only other relief granted by the decree was the making of a declaration that the order of dismissal passed by the Deputy Commissioner, Delhi, on December 17, 1951, purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which the appeal had arisen.
Does the impugned rule go against this declaration? The answer, in our opinion, must be in the negative.
The provision in the rule that the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal does not seek to affect the position that the order of dismissal previously passed was inoperative and that the appellant was a member of the service on May 25, 1953, when the first, suit was instituted by the appellant.
An order of suspension of a government servant does not put an end to his service under the Government.
He continues to be a member of the service inspite of the order of suspension.
There was a termination of the appellant '$ service when the order of dismissal was I 'made on 237 December 17, 1951.
When that order of dismissal was act aside: the appellant 's service revived; and so long as another order of dismissal is not made or the service of the appellant is not terminated by some other means, the appellant continues to be a member of the service and the order of suspension in no way affects this position.
The real effect of the order of suspension is that though he continued to be a member of the Government service he was not permitted to work, and further, during the period of his suspension he was paid only some allowance generally called, ""subsistence allowance" which is normally less than his salary instead of the pay and allowances he would have been entitled to if he had not been suspended.
There is no doubt that the order of suspension affects a government servant injuriously.
There is no basis for thinking however that because of the order of suspension he ceases to be a member of the service.
The provision in r. 12(4) that in certain circumstances the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal and shall continue to remain under suspension until further orders, does not in any way go against the declaration made by this Court.
The contention that the impugned Rule contravenes articles 142 or 144 is therefore untenable.
Equally untenable is the appellant 's next contention that the impugned rule contravenes the provisions of article 19(1)(f) of the Constitution.
The argument is that as a result of this Court 's decree the appellant had a right to his arrears of pay and allowances.
This right constituted his property; and as the effect of the impugned Rule is that he would not, for some time at least, get those arrears it restricts his right.
It may be conceded that the right to arrears of pay and allowances constituted property within the meaning of article 19(1)(f) of the Constitution and further, that the effect of r. 12(4) is a 238 substantial restriction of his right in respect of that property under article 19(1)(f).
The question remains whether this restriction is a reasonable restriction in the interests of the general public.
No body can seriously doubt the importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons.
Such action is certainly against the immediate interests of the Government servant concerned; but is absolutely necessary in the interests.
of the general public for serving whose interests the government machinery exists and functions.
Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him.
It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the, procedure.
We have no hesitation in holding, therefore, that in so far as r.12(4) restricts the appellant 's right under article 19(1)(f) of the Constitution, it is a reasonable restriction in the interests of the general public.
Rule 12(4) is therefore within the saving provisions of article 19(6), so that there is no contravention of the constitutional provisions.
Mr. Sharma drew our attention to the decision of this Court in Devendra Pratap vs State of Uttar Pradesh(1) where the effect of r. 54 of the Fundamental Rules framed by the State of U. P. under article 309 was considered.
It was held that while r. 54 undoubtedly enabled the State Government to fix the pay of a public servant where dismissal is set aside in a departmental appeal, the rule has no application to cases in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated and that it would not in such a contingency be open to the authority to deprive the (1) [1962] Supp. 1 section C. R. 315.
239 public servant of the remuneration which he would have earned had he been permitted to work.
This decision has however no application to a case like the present, where because of the operation of r. 12 (4) of ,the Central Civil Service (Classification, Control & Appeal) Rules, 1957, the public servant is deemed to be placed under suspension from the date of the original order of dismissal.
This brings us to the attack on the rule on the basis of article 14.
According to Mr. Sharma the result of the impugned rule is that where a penalty of dismissal, removal or compulsory retirement from service imposed on a government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority decides to hold a further enquiry against 'him on the allegations on which the penalty was originally imposed, the consequence will follow that the government servant shall be deemed to have been placed under suspension from the date of the original imposition of penalty, whereas no such consequence will follow where a similar penalty is set aside not by a court of law but by the departmental disciplinary authority.
According to Mr. Sharma, therefore, there is a discrimination between a government servant the penalty of dismissal, removal or com pulsory retirement on whom is set aside by a decision of a court of law and another government servant a similar,penalty on whom is set aside on appeal by the departmental disciplinary authority.
The argument however ignores the result of rule 30 (2) and rule 12 (3) of these rules.
Rule 30 (2) provides inter alia that in the case of an appeal against an order imposing any of the penalties specified in rule 13, i.e., the penalty of dismissal, removal or compulsory retirement and certain other penalties, the appellate authority shall pass orders: "(1)setting aside, reducing, confirming or enhancing the penalty; or (ii) remitting the case to.
the authority which imposed the penalty 240 or to any other authority with such direction as it may deem fit in the circumstances of the case.
" Rule 12 (3) provides that "where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under 'these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
" Where a penalty of dismissal, removal or compulsory retirement imposed upon a government servant is set aside by the departmental authority on appeal, it may or may not order further enquiry; just as where a similar penalty is set aside by a decision of a court of law the disciplinary authority may or may not direct a further enquiry.
Where the appellate authority after setting aside a penalty of dismissal, removal or compulsory retirement makes an order under r. 30 (2) (ii) remitting the case to the authority which imposed the penalty, for further enquiry, rule 12 (3) will come into operation and so the order of suspension which in almost all cases is likely to be made where a disciplinary proceeding is contemplated or is pending r. 12 (3) shall be deemed to have continued in force on and from the date of the original order of dismissal and shall remain in force until further orders.
There is therefore no difference worth the name between the effect of rule 12 (4) on a government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside by a decision of a court of law and a further enquiry is decided upon and the effect of r. 12 (4) on an other government servant a similar penalty on whom is set aside in appeal or on review by the departmental authority and a further enquiry is decided upon.
In both cases the government servant will be deemed to be under suspension from the date of the.
original order of dismissal, except 241 that where in a departmental enquiry a government servant was not placed under suspension prior to the date when the penalty was imposed, this result will not follow, as r. 12 (3) would not then have any operation.
It is entirely unlikely however that ordinarily a government servant will not be placed under suspension prior to the date of his dismissal.
Rule 12 (1) provides that the appointing authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf may place a government servant under suspension : (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial.
Mr. Sharma does not say that ordinarily any cases occur where a government servant is visited with a penalty of dismissal, removal or compulsory retirement, in a departmental proceeding, without there being a previous order of suspension under the provisions of r. 12(1) and we do not think any such case ordinarily occurs.
Consequently, the effect of r. 12(3) will be the same on a government servant a penalty of dismissal, removal or compulsory retirement on whom is set aside in appeal by the departmental authority as the effect of r. 12(4) on a government servant a similar penalty on whom is set aside by a decision of a court of law.
The contention that r. 12(4) contravenes article 14 of the Constitution must therefore be rejected.
As we find that all the above attacks on the validity of r. 12(4) fail, the further attack on the Rule on the basis of article 31(1) of the Constitution also necessarily fails.
For, whatever deprivation of property may result from r. 12(4) would be by authority of law the law being r. 12(4).
We have therefore come to the conclusion that the High Court.
is right in holding that r. 12(4) is 242 valid and consequently, in rejecting the appellant 's revisional application.
The appeal is dismissed.
But, in view of the circumstances of the case we make no order as to costs.
Though the appellant has failed in this appeal which was brought by him as a pauper, we make no order against him to pay the court fee which would have been paid by him if he had not been permitted to appeal as a pauper.
Appeal dismissed.
| Although section 135 of the Indian Contract Act does not in terms apply to a surety bond executed in favour of the court, there can be no doubt that the equitable rule underlying that section must apply to it.
The reason for the said rule which entitles the surety to a discharge is that he must be able at any time either to require the creditor to call upon the principal debtor to pay off his debt, or himself to pay the debt and seek his remedy against the principal debtor.
The question as to whether the liability of the surety is discharged by a compromise in the judicial proceeding in which the surety bond is executed must depend on the terms of the bond itself.
If the terms indicate that the surety undertook the liability on the basis that the dispute should be 922 decided on the merits by the court and not amicably settled, the compromise will effect a discharge of the surety.
The Official Liquidators, The Travancore National & Quilon Bank Ltd. vs The Official Assignee of Madras 1.
L. R , Parvatibai vs Vinayak Balvant, 1.
L. R. 1938 Bom.
Mahomedalli Ibrahimji vs Laxmibai, (1929) I. L. R. LIV Bom.
II 8, Narsingh on vs Nirpat Singh, (1932) I. L. R. XI Patna 590 and Muhammad Yusaf vs Ram GobindaOjha, (1927) 1.
L. R. LV Cal. 91, referred to.
But if the terms show that the parties and the surety contemplated that there might be an amicable settlement as well, anti the surety executed the bond knowing that he might be liable under the compromise decree, there can be no discharge and the surety will be liable under the compromise decree.
Haji Ahmed vs Maruti Ramji, (1930) 1.
L. R. LV Bom.
Appunni Nair vs Isack Mackadan,(1919) 1.
L. R. 43 Mad.
272 and Kanailal Mookerjee vs Kali Mohan Chatterjee, A. 1.
R. , referred to.
Consequently, in the present case where the surety bond was executed in favour of court and by it the sureties undertook to pay certain amount of money on behalf of the respondent if decreed by the court and the compromise decree between the parties introduced complicated provisions enabling the e appellant to take possession of the properties in adjustment of rival claims, granted time, albeit to both the parties, to discharge their obligations thereunder and included matters extraneous to the judicial proceedings in which the surety bond was executed.
Held, that the sureties stood discharged by the compromise decree.
|
N: Criminal Appeal No. 238 of 1988.
From the Judgment and Order dated 4.8.1986 of the Punjab and Haryana High Court in Criminal Appeal No. 329 DB of 1986 and Murder Reference No. 2 of 1986.
Mrs. Urmila Kapoor and Ms. section Janani for the Appellant.
R. section Suri for the Respondent.
The Judgment of the Court was delivered by OJA, J.
This appeal has come to this Court on grant of leave against the conviction of the appellant under Section 302 and sentence of death and also his conviction under Section 201 IPC and sentence of 7 years rigorous imprisonment and fine of Rs.200 awarded by Sessions Judge, Ferozepur and confirmed by the High Court of Punjab & Haryana.
The appellant is convicted for having committed the murder of his father and son.
It is alleged that deceased Banta Singh father of the present appellant owned 4 5 killas of land situated at Ferozepur Road where a tube well was also installed by the side of a samll kotha where he alongwith his grandson Seva Singh used to live away from the house where the appellant resided.
It is alleged that Seva Singh was crippled and used to move about on a tricycle Banta Singh and Seva Singh used to go to Gurudwara of their village to render services.
Banta Singh had only one son i.e. present appellant whereas the appellant had a son Seva Singh the deceased from his first wife (since deceased).
Later he married second time and had two children, but she also died.
At present he has the third wife and with her, he has two sons.
616 It was alleged, as motive for the offence, that the appellant used to quarrel with his father and son in connection with land owned by father as the latter wanted to transfer his land in the name of Seva Singh who used to live with the grandfather.
According to the prosecution a day prior to Amawasaya of Chet 1985 (May 1985) when Nihal Singh (PW 2) was rendering services with Banta Singh and Seva Singh at Gurudwara at about 5 p.m. the appellant went to the Gurudwara and told his father and son that in the evening a truck of Car Seva would come from Fazilka and that they would go to Amritsar to take the holy bath.
On this representation, appellant took Banta Singh and Seva Singh from the Gurudwara.
It is alleged that on the same day at about 10 p.m. when Nihal Singh was proceeding to his fields for guarding his tubewell he met the accused on the way and found carrying dang with him.
On being questioned by Nihal Singh as to why he was there and why he did not go to Amritsar, the appellant replied that Banta Singh and Seva Singh were sent to Amritsar by him in a truck of Car Seva.
It is further alleged that when Nihal Singh did not see for sometime Banta Singh and Seva Singh he felt suspicious and lodged a report dated 10 October 1985 in the Police Station Mamdot.
That became the FIR (exhibit PG).
S.I. Puran Singh who recorded the statement of Nihal Singh raided the house of the appellant who it is alleged was not present.
On 13 of August 1985, it is alleged that the appellant made an extra judicial confession to one Amrik Singh and Amrik Singh produced the appellant before the Police.
On 15 August, 1985, a memorandum under Section 27 of the evidence Act was recorded by the Investigating officer at the instance of the appellant and later the dead bodies of Banta Singh and Seva Singh were recovered from a field.
It is also alleged that at that time there was a Jhinjan crop standing in the field.
The dead bodies were identified by one Channan Singh who was a Panch witness.
The tricycle and other articles were recovered from the Kotha at the instance of the appellant.
On the basis of this evidence, the courts below convicted the present appellant.
The circumstances which have been found against the appellant are: (i) Last seen with the deceased at the Gurudwara by.
Nihal Sing (ii) extra judicial confession made to Amrik Singh (iii) the statement under Section 27 leading to discovery of dead bodies and (iv) recovery of tricycle and other articles from the Kotha where the two deceased used to reside and the motive alleged against the appellant.
617 Learned counsel for the appellant contended that as against the motive is concerned.
the appellant at the trial had produced a will A executed by deceased Banta Singh wherein he has given away all his lands to the appellant.
In the cross examination of prosecution witnesses it was suggested that . that his brother in law Manjit Singh was interested in getting the property transferred in his name or in his wife 's name.
It was also argued that extra judicial confession even otherwise is a very weak piece of evidence and in this case it is strange that the appellant chose this Amrik Singh to make an extra judicial confession and the reasons suggested by Amrik Singh also do not appear to be justifiable.
Similarly it was said that the recovery of dead bodies and the memorandum of the statement leading to the discovery are of no consequence as even according to the Investigating officer he had learnt from Amrik Singh that the dead bodies were in the field but he felt that the information he had got was not sufficient and therefore he recorded the information under Section 27 given by the appellant.
In our opinion, these contentions are well founded and must be accepted as correct.
The field where the bodies were recovered is an open place.
It is alleged that there was Jhinjan crop standing in the field and prosecution has not led any evidence to indicate as to who was in possession of the field and who cultivated the crop which was standing at that time.
We will discuss this part of the case in detail a little later.
It is very significant to note that according to the medical opinion bodies were recovered about three months after the death.
The bodies were found disintegrated.
It was difficult to identify.
The disintegration has gone to such an extent that the bodies could not be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem.
The prosecution did not examine any one of the relatives or the daughter of deceased Banta Singh or the son in law Manjit Singh to identify the dead bodies although it has appeared in evidence that during the trial Manjit Singh was present in the Court.
As to the extra judicial confession, it may be noted that Nihal Singh claims to be a person who had seen the deceased Banta Singh and Seva Singh alongwith the appellant in the month of May in the Gurudwara.
On the same night he again met the appellant and enquired about them.
The witness also stated that when he did not see the old man for some time, he became suspicious about the missing of those two persons.
This witness in order to justify his meeting with the appellant at 10 P.M.
On that day said that although his own land was at 618 a distance, he had taken some land on lease which was adjacent to the land of the appellant and so he had to go near the appellant 's house.
But in cross examination he had to admit that for the lease he had no document to support.
The prosecution has suggested that the appellant did not search for his father, but according to the appellant, the deceased had been taken away by Manjit Singh to their place on the pretext that Manjit Singh 's wife i.e. the appellant 's sister was not well and this was also put in cross examination to Nihal Singh.
In the absence of evidence of Manjit Singh, the suggestion of the appellant cannot be brushed aside.
On 10 August, 1985 F.I.R. was lodged by Nihal Singh (PW 2)1 and on 13.8.85 the appellant went to Amrik Singh (PW 3) to make an extra judicial confession.
Amrik Singh says that the appellant told him that as the Police was after him he had come and confessed the fact so that he might not be unnecessarily harrased.
There is nothing to indicate that this Amrik Singh was a person having some influence with the Police or a person of some status to protect the appellant from harrassment.
In his cross examination he admits that he is neither the Lumbardar or Sarpanch nor a person who is frequently visiting the Police Station.
He further admits that when he produced the appellant there was a crowd of 10 to 12 persons.
There is no other corroborative evidence about the extra judicial confession.
As rightly conceded by the learned counsel for the State that extra judicial confession is a very weak piece of evidence and is hardly of any consequence.
The council however, mainly relied on motive, the evidence of last seen, the evidence of recovery of dead bodies and the conduct of the appellant in not making a report about the missing father and son.
As regards the motive the will in question is sufficient to dislodge it.
An attempt was made by the learned counsel for the State to suggest that even after the will the appellant could have done away with the old man to avoid changing the will.
But the will was executed on 31 December, 1984 and it is a figment of imagination that the murder was committed apprehending that the will likely to be changed.
There is also no evidence to indicate that appellant was not having good relations with his father or that there was ever any trouble between father and the son.
In fact Nihal Singh was asked in cross examination as to whether there was any dispute between the father and son? He had to admit that there was no dispute or difference.
As regards the evidence of last seen it was the case of appellant 619 that Manjit Singh had taken Banta Singh and Seva Singh to his place on the pretext that the wife of Manjit Singh was not well.
There is no evidence led by the prosecution to negative this stand of the appellant.
Manjit Singh has not been examined although it has come in evidence that he was present in the Court when Nihal Singh was examined.
The sister of appellant was also not examined and in the absence of any such evidence to negative this stand of the appellant it could not be said that the prosecution has proved that suggestion was false.
In these circumstances, the presence of deceased Banta Singh and Seva Singh along with the appellant at the Gurudwara on the Amawasaya day in Chet could not be said to be the last seen before the murder in question.
May be, Nihal Singh saw them on that day but it is significant that no other person connected with the deceased has been produced to suggest that he was not seen thereafter.
Therefore, the evidence as to last seen also can not be considered as a piece of circumstantial evidence against the appellant.
Then we are left with the recovery of the dead bodies.
Investigating officer S.I. Puran Singh (PW 8) admitted in cross examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other articles were kept buried and concealed.
This clearly indicates that he could get some information from the statement of Amrik Singh.
As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field.
The Investigating officer himself admitted that after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient.
It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none alse.
Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstances against the appellant.
As regards the recovery made from the Kotha where the deceased Banta Singh and Seva Singh used to reside there is nothing significant.
The tricycle and other belongings of the deceased were bound to be there and on that basis no inference could be drawn against the appellant.
620 In view of all these circumstances, the charge against the appellant cannot be said to have been proved beyond doubt and the conviction of the appellant Therefore cannot be sustained.
The appeal is therefore allowed.
Conviction and sentence passed against the appellant are set aside.
He is in custody.
He be set at liberty forthwith if not wanted in connection with any other case.
P.S.S. Appeal allowed.
| This was a reference under article 143(1) of the Constitution made by the President of India for obtaining the opinion of the 996 Court upon certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly but was reserved by the Governor for the consideration of the President.
The Bill, as its title and preamble indicated, had for its object the better Organisation and development of the educational service throughout the State, presumably, in implementation of the provisions of article 45 of the Constitution and conferred wide powers of control on the State Government in respect of both aided and recognised institutions.
Of the four questions referred to this Court, the first and third impugned cl.
3(5) read with cl. 36 and cl. 15 of the Bill as being discriminatory under article 14, the second impugned cls.
3(5), 8(3) and cls.
9 to 13 Of the Bill as being violative of minority rights guaranteed by article 30(1) and the fourth, cl. 33 of the Bill, as offending article 226 of the Constitution.
Clause 3(5) of the Bill made the recognition of new schools subject to the other provisions of the Bill and the rules framed by the Government under cl.
(36), Cl.
(15) authorised the Government to acquire any category of 'Schools, cl.
8(3) made it obligatory on all aided schools to hand over the fees to the Government, cls.
9 to 13 made provisions for the regulation and management of the schools, payment of salary to the teachers and the terms and conditions of their appointment and cl.
(33) forbade the granting of temporary injunctions and interim orders in restraint of proceedings under the Act.
This Court took the view that since cl.
3(5) attracted the other provisions of the Bill, in case anyone of them was found to be unconstitutional, cl.
3(5) itself could not escape censure.
Held (per Das C. J., Bhagwati, B. P. Sinha, Jafer Imam, section K. Das and J. L. Kapur JJ.), that although article 143(1) Of the Constitution, which virtually reproduced the provisions of section 213(1) of the Government of India Act, 1935, gave this Court the discretion, where it thought fit, to decline to express any opinion on the questions referred to it, the objection that such questions related, not to a statute brought into force but, to the validity of a Bill that was yet to be enacted, could be no ground for declining to entertain the reference.
Article 143(1) of the Constitution had for its object the removal of the doubts at the President and was in no way concerned with any doubts that a party might entertain and no reference could be incomplete or incompetent on the ground that it did not include other questions that could have been included in it and it was not for this Court to go beyond the reference and discuss them.
The Advisory jurisdiction conferred by article 143(1) was different from that conferred by article 143(2) of the Constitution in that the latter made it obligatory on this Court to answer the reference.
In re Levy of Estate Duty, , relied on.
997 Attorney General for Ontario vs Hamilton Street Railway, , Attorney General for British Columbia vs Attorney General for Canada, , ln re The Regulation and Control of Aeronautics In Canada, [1932] A. C. 54, In re Allocation of Lands and Buildings, [1943] F. C. R. 20 and In Ye ; , , considered.
A directive principle of State policy could not override a fundamental right and must subserve it, but no Court should in determining the ambit of a fundamental right, entirely ignore a directive principle but should try to give as much effect to both as possible by adopting the principle of harmonious construction.
State of Madras vs Smt.
Champakam Doraiyajan, [1951] S.C.R. 525 and Mohd. Hanif Quayeshi vs The State of Bihar, ; , referred to.
In answering the questions under reference, the merits or otherwise of the policy of the Government sponsoring the Bill could be no concern of this Court and its sole duty was to pronounce its opinion on the constitutional validity of such provisions of the Bill as were covered by the questions.
judged in the light of the principles laid down by a series of decisions of this Court explaining article 14 Of the Constitution, the clauses of the Bill that came within questions 1 and 3 could not be said to be violative of that Article.
The restriction imposed by cl.
3(5) read with cl. 26 of the Bill, which made it obligatory on the guardians to send their wards to a Government or a private school in an area of compulsion and thus made it impossible for a new school in such area, seeking neither aid nor recognition, to function, could not be said to be discriminatory since the State knew best the needs of its people, and such discrimination was quite permissible, based, as it was, on geographical classification.
Mohd. Hanif Ouareshi vs The State of Bihar, [1959] section C. R. 629, Chiyanjit Lal Chowdhury vs The Union of India, , Ramkrishna Dalmia vs Sri justice section R. Tendolkar; , , referred to.
No statute could be discriminatory unless its provisions discriminated, and since the provisions of the Bill did not do so, it could not be said to have violated equal protection of law by its uniform application to all educational institutions although not similarly situate.
Cumberland Coal Co. vs Board of Revision, (1931) 284 U. section 23; ; , held inapplicable.
The policy and purpose of a statute could be deduced from its long title and the preamble.
The impugned Bill laid down its policy in the long title and the preamble and reinforced it by 998 more definite statements in the different clauses and, consequently, such discretion as it left to the Government had to be exercised in implementing that policy.
The use of the word may in cl.
3(3) could make no difference, for once the purpose was established and the conditions of the exercise of the discretion were fulfilled, it was incumbent on the Government to exercise it in furtherance of that purpose.
If it failed to do so, the failure, and not the Bill, must be censured.
Biswambar Singh vs The State of Orissa, ; and Julius vs Lord Bishop of Oxford, (1880) 5 App.
CaS. 214, referred to.
Discretionary power was not necessarily discriminatory, and abuse of power by the Government could not be lightly assumed.
Apart from laying down the policy, the State Legislature provided for effective control by itself by cl. 37 and the proviso to cl. 15 of the Bill.
It could not, therefore, be said that the Bill conferred unguided or uncontrolled powers on the Government.
Article 30(1) Of the Constitution, which was a necessary concomitant to article 29(1) and gave the minorities the right to establish and administer their institutions, did not define the word 'minority ', nor was it defined anywhere else by the Constitution, but it was absurd to suggest that a minority or section envisaged by article 30(1) and article 29(1) could mean only such persons as constituted a numerical minority in the particular region where the educational institution was situated or resided under a local authority.
Article 350 A of the Constitution, properly construed, could lend no support to such a proposition.
As the impugned Bill extended to the entire State, minorities in the State must be determined on the basis of its entire population, and thus the Christians, the Muslims and the Anglo Indians would be its minority communities.
Article 30(1) of the Constitution made no distinction between minority institutions existing from before the Constitution or established thereafter and protected both.
It did not require that a minority institution should be confined to the members of the community to which it belonged and a minority institution could not cease to be so by admitting a non member to it.
Nor did article 30(1) in any way limit the subjects to be taught in a minority institution, and its crucial words " of their own choice ", clearly indicated that the ambit of the rights it conferred was determinable by the nature of the institutions that the minority communities chose to establish and the three categories into which such institutions could thus be classified were (1) those that sought neither aid nor recognition from the State, (2) those that sought aid, and (3) those that sought recognition but not aid.
The impugned Bill was concerned only with institutions of the second and third categories.
999 The word 'aid ' used by articles 29(2) and 30(2) included grant ' under article 337 of the Constitution and that word occurring in the Bill must have the same meaning.
Consequently, such clauses of the Bill mentioned in question No. 2 as imposed fresh and stringent conditions precedent to such grant over and above those to which it was subject under articles 337 and 29(2), violated not only article 337 but also, in substance and effect, article 30(1) of the Constitution and were to that extent void.
Rashid Ahmad vs Municipal Board, Kaiyana, ; , Mohd. Yasin vs The Town Area Committee, jalalabad; , and The State of Bombay vs Bombay Education Society, ; , referred to.
Although there was no constitutional right to the grant of aid except for Anglo Indian educational institutions under article 337 Of the Constitution, State aid was indispensable to educational institutions and Arts:, 28(2), 29(2) and 30(2) clearly contemplated the grant of such aid and articles 41 and 46 charged the State with the duty of aiding educational institutions and promoting such interests of the minorities.
But the right of the minorities to administer their educa tional institutions under article 30(1), was not inconsistent with the right of the State to insist on proper safeguards against maladministration by imposing reasonable regulations as conditions precedent to the grant of aid.
That did not, however, mean that the State Legislature could, in the exercise of its powers of legislation under articles 245 and 246 of the Constitution, override the fundamental rights by employing indirect methods, for what it had no power to do directly, it could not do indirectly.
So judged, cl.
3(5) of the Bill by bringing into operation and imposing cls.
14 and 15 as conditions precedent to the grant of aid, violated article 30(1) of the Constitution.
Similar considerations applied to the grant of State recognition as well.
No minority institution could fulfill its real object or effectively exercise its rights under article 30(1) without State recognition, as otherwise it would not be open to its scholars under the Education Code to avail of the opportunities for higher education in the University or enter the public services.
While it was undoubtedly true that there could be no fundamental right to State recognition, denial of recognition except on such terms as virtually amounted to a surrender of the right to administer the institution, must, in substance and effect infringe article 30(1) of the Constitution.
Clause 3(5), read with Cl. 20 of the Bill, in forbidding the charging of tuition fees in the primary classes, deprived the minority institutions of a fruitful source of income without compensation, as was provided by cl.
(9) for aided schools, and thus imposed a condition precedent to State recognition which was in 127 1000 effect violative of article 30(1) and was, therefore, void to that extent.
No rules, when framed under the Act, could cure such invalidity.
Article 45 of the Constitution did not require the State Government to provide free and compulsory education to the detriment of minority rights guaranteed by the Constitution,if the Government so chose it could do so through the Government and aided schools, and this Court was in duty bound to uphold such fundamental rights as the Constitution had thought fit to confer on the minority communities.
The wide powers and jurisdiction conferred on the High Courts by article 226 of the Constitution could not be affected by a provision such as cl.
(33) of the Bill, which forbade Courts to issue temporary injunctions or interim orders in restraint of any proceedings thereunder, and it must be read as subject to the overriding provisions of article 226 of the Constitution.
Venkatarama Aiyar J.
It was obvious that article 30(1) Of the Constitution did not in terms confer a right on the minority institutions to State recognition, nor, properly construed, could it do so by implication, for such an implication, if raised, would be contrary to the express provisions of article 45 Of the Constitution.
Article 30(1) was primarily intended to protect such minority institutions as imparted purely religious education and to hold that the State was bound thereunder to recognise them would be not only to render article 45 wholly infructuous but also to nullify the basic concept of the Constitution itself, namely, its secular character.
There was no conflict here between a fundamental right and a directive principle of State policy that must yield, and the principle of article 45 must have full play.
Clause (20) of the Bill was designed to enforce that principle and cl.
3(5) Of the Bill in making it a condition precedent to State recognition could not violate article 30(1) Of the Constitution.
Nor could a consideration of the policy behind article 30(1) lead to a different conclusion, assuming that the question of policy could be gone into apart from the language, since that policy was no other than that the majority community of the State should not have the power to destroy or impair the religious or linguistic rights of the minority communities.
The only two obligations, one a positive and the other a negative, that article 30(1) read with articles 25, 26, 29 and 30(2) of the Constitution imposed on the State were (1) to extend equal treatment as regards aid or recognition to all educational institutions, including those of the minorities, religious or linguistic, and (2) not to prohibit the establishment of minority institutions or to interfere with their administration.
To hold that the State Government was further bound under article 30(1) to accord recognition to minority institutions would be 1001 to put the minorities in a more favoured position than the majority community, which the Constitution never contemplated.
City Winnipeg vs Barrett : City of Winnipeg vs Logan, , referred to.
|
Special Leave Petition (Civil) Nos.
14179 80 of 1985 385 From the Judgment and Order dated 11.7.1985 of the Andhra Pradesh High Court in Writ Appeal No. 1443 and 1467 of 1984.
T.U. Mehta and A. Subba Rao for the Petitioners.
Dr. Y.S. Chitale, T.V.S.N. Chari and Miss Vrinda Grover for the Respondent.
The Judgment of the Court was delivered by THAKKAR, J.
Does that part of the provision which provides for payment of a larger amount of gratuity with prospective effect from the specified date offend Article 14 of the Constitution of India? Whether gratuity must be paid on the stepped up basis, to all those who have retired before the date of the upward revision, with retrospective effect, even if the provision provides for prospective operation, in order not to offend Article 14 of the Constitution of India? A Division Bench of the High Court of Andhra Pradesh says 'no '.
In our opinion it rightly says so.
The petitioners, erstwhile Government employees who had retired "before" April 1, 1978, inter alia claimed and contended before the High Court that they were entitled to the benefit to the Government order No. 88 dated 26 March, 1980 providing that: "(b) Retirement gratuity may be 1/3rd of pay drawn at the time of retirement for every 6 monthly service subject to maximum of 20 months pay limited to Rs.30,000.
" The said order in so far as gratuity is concerned is made effective from 1st April, 1978.
Says the High Court: "Therefore, we are now only concerned whether this G.O. Ms. No. 88, dated 26 3 1980, should be made applicable to the pensioners that retired prior to 1 4 1978 by revising their gratuity payable to them.
The learned Advocate General, contends, that gratuity is something different from the other pensionary benefits like the pension and the family pension, which are continuing ones.
The Gratuity that accrued to the petitioners prior to 1 4 1978 was calculated on the then existing Rules and paid.
In that way, the pensioners retired prior to 1 4 1978 will form themselves into a distinct class for purposes of the pay 386 ment of benefit of gratuity from the others that retired after 1 4 1978, from which date, the revised pension rules are made to be applied by the Government.
On the other hand, it is the contention of the writ petitioners that gratuity is a part and parcel of the pensionary benefits and the same cannot be looked separately from the other pensionary reliefs.
The learned counsel for the Writ Petitioners, no doubt, cited two decisions (1) V.P. Gautama, IAS Retd.
vs Union of India (SLJ 1984 (1) 120) (2) M.P. Tandon vs State of U.P. , where their Lordships that decided the above two cases, held, that no distinction can be made in the pensionary benefits including death cum retirement gratuity benefit between the pensioners that retired prior to the stipulated date and after the stipulated date.
In the decision D.S. Nakara vs Union of India, (A.I.R. , their Lordships of the Supreme Court enunciated the principle as follows: "With the expanding horizons of socioeconomic justice, the Socialist Republic and Welfare State which the country endeavours to set up and the fact that the old man who retired when emoluments were comparatively low are exposed to vegaries of continuously rising prices, the falling value of the ruppe consequent upon inflationary inputs, by introducing an arbitrary eligibility criteria, 'being in service and retiring subsequent to the specified date ' for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and being wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being throughly arbitrary, the eligibility for liberalised pension scheme of "being in service on the specified date and retiring subsequent to that date" in the memoranda Exs.
P 1 and P 2, violated article 14 and is unconstitutional and liable to be struck down." After thus enunciating the principle, their Lordships have taken care to observe as follows: "But we make it abundantly clear that arrears are not re 387 quired to be made because to that extent the scheme is prospective." In our opinion, the arrears relating to gratuity benefit computed according to the Revised Pension Rules of 1980 may not be paid to the pensioners that retired prior to 1 4 1978 because at the time of retirement, they are governed by the then existing Rules and their gratuity was calculated on that basis.
The same was paid.
Since the revised scheme is operative from the date mentioned in the scheme, i.e. 1 4 1978, the continuing rights of the pensioners to receive pension and family pension must also be revised according to that scheme.
But the same cannot be said with regard to gratuity, which was accrued and drawn.
The reason why their Lordships of the Supreme Court in Nakara 's case refused to grant arrears to the pensioners that retired prior to the stipulated date would ipso facto apply for refusing to grant the revised gratuity, since that would amount to asking the State Government to pay arrears relating to gratuity after revising them according to the new scheme for those that retired prior to 1 4 1978 and that would amount to giving retrospective effect to the A.P. Revised Pension Rules, 1980, which came into effect from 29 10 1979 and in the case of Part II of those Rules from 1 4 1978.
The scheme is prospective and not retrospective.
Moreover, we must remember that when the State Government appointed the Pay Revision Commissioner to review the then existing scales of pay under G.O. Ms. No. 745, General Administration (Spl.
A) Department, dated 3 11 1978, the Pay Revision Commissioner was asked to take into account, while making his recommendation, the economic conditions in the State, the financial implications of his recommendations, and the impact thereof on the resources avilable for the plan and other essential non plan expenditure.
Surely, the Pay Revision Commissioner, when he made his recommendations to revise the pensionary benefits, is not contemplating to make his recommendations retrospective.
Otherwise, he would have taken financial implications of those recommendations and the impact thereof on the resources available for plan and other essential non plan expenditure of the State.
For this reason also, we cannot direct the State Government to re 388 vise the gratuity benefit, which was already paid to these petitioners who retired prior to 1 4 1978.
The Supreme Court has clearly stated in Nakara 's case that arrears are not required to be paid because to that extent the scheme is prospective.
Similar is the case with regard to the case of gratuity that was accrued and paid prior to the stipulated day mentioned in the G.O. promulgating the Revised Pension Rules of 1980.
" We fully concur with the view of the High Court.
The upward revision of gratuity takes effect from the specified date (April 1, 1978) with prospective effect.
The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara 's case, AIR 1983 S.C. 130.
There is no illegality or unconstitutionality (from the platform of Article 14 of the Constitution of India) involved in providing for prospective operation from the specified date.
Even if that part of the Notification which provides for enforcement with effect from the specified date is struck down the provision can but have prospective operation not retrospective operation.
In that event (if the specified date line is effaced), it will operate only prospectively with effect from the date of issuance of the notification since it does not retrospectively apply to all those who have already retired before the said date.
In order to make it retrospective so that it applies to all those who retired after the commencement of the Constitution on 26 January, 1950 and before the date of issuance of the notification on 26 March, 1980, the Court will have to re write the notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively.
Merely striking down (or effacing) the alleged offending portion whereby it is made effective from the specified date will not do.
And this, the Court cannot do.
Besides, giving prospective operation to such payments cannot by any stretch of imagination be condemned as offending Art 14.
An illustration will make it clear.
Improvements in pay scales by the very nature of things can be made prospectively so as to apply to only those who are in the employment on the date of the upward revision.
Those who were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the then prevailing cost of living structure and pay scale structure, cannot invoke article 14 in order to claim the higher pay scale brought into force say, in 1980.
If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made.
Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement.
The amount got crystallized on 389 the date of retirement on the basis of the salary drawn by him on the date of retirement.
And it was already paid to them on that footing.
The transaction is completed and closed.
There is no scope for upward or downward revision in the context of upward of downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides restrospectively (downward revision may not be legally premissible even).
It would be futile to contend that no upward revision of gratuity amount can be made in harmony with Article 14 unless it also provides for payment on the revised basis to all those who have already retired between the date of commencement of the Constitution in 1950, and the date of upward revision.
There is therefore no escape from the conclusion that the High Court was perfectly right in repelling the petitioners ' plea in this behalf.
For the sake of record we may mention that our attention was called to an order of a Division Bench of the High Court of Gujarat LPA 280 of 1983 dated 8.9.83 per P.D. Desai Acting C.J., which does not discuss the issues involved but is based on a concession said to have been made by the Advocate General who appeared for the State.
And also to a decision of the Allahabad High Court, (M.P. Tandon vs State of U.P., and (Punjab & Haryana High Court (V.P. Gautama vs Union of India, A.I.R. SLJ [1984] (1) 120.) In none ot these decisions the relevant passage from D.S. Nakara vs Union of India, , was considered.
Nor was the aspect regarding prospective operation considered on principle.
The High Court considered it shocking and was carried away by the fact that an employee who retired even one day before the enforcement of the upward revision would not get the benefit if the specified date of enforcement was not effaced by striking down the relevant provision.
But in all cases of prospective operation it would be so.
Just as one who files a suit even one day after the expiry of limitation would lose his right to sue, one who retires even a day prior to enforcement of the upward revision would not get the benefit.
This cannot be helped, there is nothing shocking in it unless one can say legislation can never be made prospective, and nothing turns on it.
These are the reasons which impelled us to dismiss the Special Leave Petition on 18 July, 1986.
A.P.J. Petition dismissed.
| The Government Order No. 88 dated 26th March, 1980 provided that retirement gratuity may be 1/3rd of pay drawn at the time of retirement for every 6 monthly service subject to maximum of 20 months pay limited to Rs.30,000.
This order in so far as gratuity is concerned is made effective from 1st April, 1978.
The petitioners, erstwhile Government employees who had retired "before" April 1, 1978, filed petition under Article 226 in the High Court, contending that gratuity is a part and parcel of the pensionary benefits and the same cannot be looked separately from the other pensionary reliefs and therefore, they are also entitled to the benefit of gratuity retrospectively at the enhanced rate though they had retired before April 1, 1978 and had been paid gratuity at the then prevailing rate.
On behalf of the State the petition was contested and it was contended that gratuity is something different from the other pensionary benefits like pension and family pension, which are continuing ones.
The gratuity that accrued to the petitioners prior to 1.4.1978 was calculated on the then existing Rules and paid, and the pensioners who retired prior to 1.4.1978 form themselves into a distinct class for purposes of the payment of benefit of gratuity from the others who retired after 1.4.1978, the date from which, the revised pension rules are made applicable by the Government.
The High Court dismissed the petition holding that the upward revision of gratuity takes effect from the specified date (April 1, 1978) with prospective effect.
384 Dismissing the Special Leave Petition of the Pensioners ' Association this Court, ^ HELD: 1.
The upward revision of gratuity takes effect from the specified date (April 1, 1978) with 'prospective ' effect.
The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara 's case, wherein it was held that no arrears are required to be paid because to that extent the scheme is prospective.
[388B C] V.P. Gautama, IAS Retd.
vs Union of India (S.L.J. 1984(1) 120), and M.P. Tandon vs State of U.P., [1984] Lab.
I.C.677, referred to.
D.S. Nakara vs Union of India, (A.I.R. 1983SC 130), relied upon.
There is no illegality or unconstitutionality involved in providing for prospective operation from the specified date.
Even if that part of the Notification which provides for enforcement with effect from the specified date is struck down the provision can but have prospective operation not retrospective operation.
In that event it will operate only prospectively with effect from the date of issuance of the notification since it does not retrospectively apply to all those who had already retired before the said date.
[388C E] 3.
In order to make the notification retrospective so that it applies to all those who had retired after the commencement of the Constitution on 26 January, 1950 and before the date of issuance of the notification on 26 March 1980, the Court will have to re write the Notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively.
Merely striking down or effecing the alleged offending portion whereby it is made effective from the specified date will not do.
And this, the Court cannot do.
Besides, giving prospective operation to such payments cannot by any stretch of imagination be condemned as offending Article 14.
[388D F] 4.
Those who were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the them prevailing cost of living structure and pay scale structure, cannot invoke Article 14 in order to claim the higher pay scale brought into force say, in 1980.
If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made.
Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtaind at the time of their respective dates of retirement.
And it was already paid to them on that footing.
The transaction is completed and closed.
[388F H; 389A]
|
ivil Appeal (C) No. 137 of 1991.
From the Judgment and Order dated 20.2.1989 of the Allahabad High Court in W.P. No. 3096 of 1980.
Yogeshwar Prasad and Ms. Shoba Dixit for the Appellants.
R.B. Datar, R.K. Khanna and Surya Kant for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
This appeal is directed against the judgment of the Allahabad High Court (Lucknow Bench) setting aside the order dated 23.9.1980 terminating the respondent 's services.
The sole question which falls for consideration in this appeal is whether the order dated 23.9.1980 terminating the respondent 's services, who was admittedly an ad hoc and temporary employee is vitiated in law.
The High Court has held that since juniors to the respondent were retained in service while the respondent 's services were terminated, the order of termination was discriminatory in nature.
It further held that since the order of termination was founded on an adverse entry awarded to the respondent his character roll without giving him any opportunity on the ground that he was not suitable, the order "cannot be said to be a decision given in good faith.
" The High Court further observed: "Even if any punishment was to be awarded, it should have been proportionate to the alleged offence , if any." On these findings the High Court held that the order of termination suffered from apparent error of law, it accordingly allowed the respondent 's writ petition and quashed the order of termination.
The factual matrix of the case is in a short compass.
The respon 32 dent, was appointed on ad hoc basis on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examinater of the State of Uttar Pradesh, for a fixed period ending on 31.8.1977.
In December, 1977 the respondent was again appointed on ad hoc basis for a period ending on 28.2.1978.
Since the regular appointment could not be made in time, the respondent 's services were extended from time to time.
The last extension was granted on 21.1.1980 and the extended period of service was to expire on 28.2.1981.
The terms and conditions of respondent 's service as contained in the order of appointment stated that the appointment was ad hoc, purely temporary for the term fixed in the order and his services were liable to be terminated at any time without assigning any reason.
He was awarded an adverse entry in his character roll for the year 1977 78.
The entry stated that the respondent 's work was poor and he should work hard and take interest in the work.
The respondent made representation against the entry but the same was rejected.
The respondent and Rajendra Prasad Pandey another Sub Auditor both were deputed to audit the accounts of Raja Raghunbar Dayal Inter College, Sitapur for the year 1979 80.
While carrying on the Audit the respondent and Rajendra Prasad Pandey both are alleged to have acted in excess of their authority in auditing the "Boys Fund Accounts" of that College for the year 1978 79 on their own accord without any authority for the same.
They issued audit note under their own signatures and also irregularly demanded a high amount of Rs. 13,250.70 as audit fee and collected an amount of RS.
2,000 as audit fee for which they issued receipts under their own signatures.
On receipt of complaint a preliminary inquiry was held that it was found that the allegations against the respondent and Rajendra Prasad Pandey were correct and both of them had acted beyond their authority and collected a sum of Rs. 2,000 as audit fee for the audit of the Boys Fund Accounts, although the Boys Fund of the Institution did not fall within the purview of audit of the Local Funds Audit and no fee was chargeable for the audit of such Fund.
After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duties at Allahabad, but the respondent proceeded on leave and did not join his duties at Allahabad.
Ultimately, the respondent 's services were terminated by the order dated 32.9.1980 and on the same day by another order, service of Rajendra Prasad Pandey were also terminated.
Both the aggrieved persons filed writ petitions in the High Court at Lucknow Bench under Article 226 of the Constitution contending that their termination orders were illegal, having been passed in violation of Article 311 of the Constitution.
The writ petition filed by Rajendra prasad pandey was dismissed but the respondent 's writ petition was allowed by a 33 Division Bench of the High Court on the ground as noted earlier.
There is no dispute that the respondent was an ad hoc and temporary employees and the terms and conditions of his employment were regulated by the U.P. Temporary Government Servant (Termination of Services0 Rules, 1975.
The contract of service as contained in the appointment letter also stipulated the terms and conditions of the respondent 's employment that his services were liable to be terminated at any time without assigning any reason or compensation.
In the counter affidavit filed before the High Court the order of termination was defended on the ground that the respondent 's work and conduct were not satisfactory and he was unsuitable for the service, therefore his services were terminated.
To support that contention the appellant placed reliance on the adverse entry awarded to the respondent in the year 1977 78 and also on the allegations made against him with raged to the audit of the Boys Fund of Raja Raghubar Dayal Inter College.
The High Court held that since junior persons to the respondent in service were retained, the order of termination was rendered illegal.
In our opinion, the principle of 'last come first go ' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on a count of retrenchment.
In the event of retrenchment the principle of 'last come first go ' is applicable under which senior in service is retained while the junior 's services are terminated.
But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service.
if out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service.
Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16 of the Constitution.
if a junior employees is hard working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service.
if this principle is not accepted there would be discrimination and the order of the termination of a junior employee would be unreasonable and discriminatory.
On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service.
The view taken by the High Court is not sustainable in law.
34 The High Court held that the termination of respondent 's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate.
it is unfortunate that the High Court has not recorded any reasons for this conclusion.
The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorised audit of the Boys Fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service.
The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorised audit constituted adequate material to enable to competent authority to form the requisite opinion regarding the respondents suitability for service.
Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service.
If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
A temporary Govt.
Servant has no right to hold the post, his services are liable to be terminated by giving him one month 's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt.
servants.
A temporary Govt.
servant can, however, be dismissed from service by way of punishment.
Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant.
if it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the Govt.
servant in accordance with the provisions of article 311 of the Constitution.
since, a temporary Govt.
servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Govt.
servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment.
It is now sell settled that the form of the order is not conclusive 35 and it is open to the Court to determine the true nature of the order.
in Parshotam Lal Dhingra vs Union of India; , a Constitution Bench of this Court held that the mere use of expressions like 'terminate ' or 'discharge ' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt.
servant is punitive in nature.
The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary Govt.
servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt.
servant is by way of punishment.
It must be borne in mind that a temporary Govt.
servant has no right to hold the post and termination of such a Govt.
servant does not visit him with any evil consequences.
The evil consequences as held in Parshotam Lal Dhingra 's case (supra) do not include the termination of services of a temporary Govt.
servant in accordance with the terms and conditions of service.
The view taken by the Constitution Bench in Dhingra 's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in the State or Orrisa and anr.
vs Ram Narayan Das; , ; R.C. Lacy vs The State of Bihar & Ors., C.A. No. 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah vs The Union of India, ; Jagdish Mitter vs The Union of India, ; A.G. Benjamin vs Union of in`ia, C.A. No. 1341/66 decided on 13.12.1966 and Shamsher Singh & Anr.
vs State of Punjab,[1975] 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, ; Learned counsel for the respondent urged that the allegations made against the respondent in respect of the audit of Boys Fund of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex parte.
had he been given the opportunity, he would have placed correct facts before the inquiry officer.
His services were terminated on allegation of misconduct founded on the basis of an ex parte enquiry report.
He further referred to the allegations made against the respondent in the counter affidavit filed before the High Court and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report.
In order to determine this question, it is necessary to consider the nature of the respondent 's right to hold the post and to ascertain the nature and purpose of the inquiry held against 36 him.
As already observed, the respondent being a temporary Govt.
servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him.
The termination order does not indict the respondent for any misconduct.
The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent 's suitablity and continuance in service.
There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent 's services by an innocuous order in accordance with the terms and conditions of his service.
Mere fact that prior to the issue of order of termination, an inquiry against the repondent in regard to the allegations of unauthorised audit of Boys Fund, was held does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent instead it exercised its power to terminate the respondent 's services in accordance with the contract of service and the Rules.
In State of Orissa & Anr.
vs Ram Narain Dass, ; a Constitution Bench of this court considered the question and indicated "the fact of the holding of an inquiry is not decisive of the question.
What is decisive is whether the order is by way of punishment in the light of the tests laid down in Purshottam Lal Dhingra 's case." In Jagdish Mitter 's case (supra) a Constitution Bench of this Court held that every order terminating the services of a temporary public servant does no amount to dismissal or removal from service merely because an inquiry was held before the order of termination was passed.
The Court observed that the appropriate authority has power to terminate a temporary public servant either by discharging him under the terms of contract or the relevant rules or by holding departmental disciplinary inquiry and dismissing him from service.
Before passing order of termination the competent authority may hold inquiry in fairness to ascertain whether the temporary servant should be continued in service or not.
While discussing the nature of preliminary inquiry the Court observed as under: "There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not the punish the temporary servant but just to decide whether he 37 deserves to be continued in service or not.
If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of article 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged.
" In Champaklal chiman lal Shah 's case (supra) the appellant therein was a temporary employee of the Union Government.
His services were terminated without assigning any reasons and without affording him opportunity of showing cause.
Before passing the order of termination the competent authority had issued a notice to Champaklal Chimanlal Shah calling upon him to explain certain irregularities and to show cause why disciplinary action should not be taken against him.
In response to the notice, he submitted his explanation thereupon, certain preliminary enquiries were held, but he was not given opportunity to place his case during the preliminary enquiry.
However, after the preliminary enquiry to regular departmental enquiry was held instead proceedings for departmental enqiury were dropped and the services of Chimanlal Shah were terminated in accordance with the terms and conditions of service of a temporary Govt.
servant.
The termination order was assailed on the ground that the order of termination was in substance an order of punishment.
the Constitution Bench held that the order of termination was not an order of punishment and the appellant was not entitled to the protection of Article 311(2) of the Constitution.
The Court emphasised that when a preliminary enquiry is held against a temporary Govt.
employee, it must not be confused with the regular departmental inquiry which usually follows the preliminary inquiry, after the government decides to frame charges and to get a departmental enquiry made, with a view to inflict one of the three major punishments on the Govt.
servant.
So far as the preliminary enquiry is concerned, there is no question of it being governed by Article 311(2) of the Constitution, as it is made for the purpose of collection of facts to enable to the competent authority to decide whether punitive action should be taken or action should be taken in terms and under the contract of service or the rules applicable to a temporary government servant.
A Govt.
servant has no right to insist for affording him opportunity during such enquiry and such an 38 ex parte enquiry is not initiated in law in view of the purpose and object of preliminary enquiry.
On an elaborate discussion, the Court observed as under: "In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above.
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments.
indicated in article 311 that the government servant is entitled to the protection of that Article.
That is why this Court emphasised in Parshotam Lal Dhingra 's case (supra) and in Shyamlal vs The State of Uttar pradesh; , that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.
" The above principles were reiterated by another Constitution Bench of this Court in R.C. Lacy 's case (supra) dealing with the case of reversion of a permanent Govt.
servant officiating on a higher post.
The Bench observed that the Government might find it necessary to terminate the services of a temporary employee if it is not satisfied with the conduct or work of an employee and the same reasoning applies to a public servant who is reverted from a higher post to his substantive lower post, if the higher post was held in a temporary nature.
Before terminating the services of a temporary servant or reverting the person 39 officiating in a higher post to his substantive post, the Govt.
may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating govt.
servant.
Such an inquiry does not change the nature of the order of the termination or reversion.
In A.G. Benjamin 's case (supra) the appellant was temporarily employed as a Store Officer in the Central Tractor Organisation, his services were terminated under the Central Civil Service (Temporary Service) Rules, 1949 by granting him one month 's salary in lieu of notice.
Benjamin contended that the order of termination was in fact an order of punishment, which had been passed without affording him the protection under Article 311(2) of the Constitution.
In that case before the issue of termination order, a notice had been issued to Benjamin for showing cause as to why disciplinary action should not be taken on the allegations made against him in respect of which the charges had been framed and an enquiry officer had been appointed.
After the charges were framed and the explanation of Benjamin was obtained, the Chairman of the Central Tractor Organisation submitted a note to the Government that the departmental proceedings may take much longer time and he was not sure that after going through all the formalities of departmental enquiry Benjamin will be dealt in the way he deserved, therefore, he suggest that action should be taken under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949 for terminating his services by giving him one month 's salary in lieu of notice as he was a temporary Govt.
servant.
The Minister concerned accepted the recommendations, whereupon, order of termination was issued terminating the services of Benjamin.
While assailing the order of termination, it was seriously contended before this Court that in view of the charges being framed and the enquiry officer having been appointed the order of termination in substance was an order of punishment and the recourse to the temporary service rules had been taken only to circumvent article 311 of the Constitution.
The Constitution Bench repelled the contention and held that the preliminary enquiry held against the Govt.
servant must not be taken to mean that the Govt. had taken decision to inflict major punishment on Benjamin.
The Court held that no temporary Govt.
servant is entitled to opportunity in the preliminary inquiry as "there is no element of punitive proceedings in such an inquiry; the idea in holding such an inquiry is not to punish the temporary government servant but just to decide whether he deserves to be continued in service or not.
" Further the Constitution Bench held that even if formal departmental inquiry is initiated against the temporary Govt.
servant, it is open to the competent authority to drop further proceedings in the departmental enquiry 40 against the temporary govt.
servant and to have recourse to Rules applicable to a temporary Govt.
servant for terminating his services.
The Court observed as under: "If therefore the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary govt.
servant, it is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule.
In such cases the order of termination of services of the temporary govt.
servant which in form and in substance is no more than his discharge affected under the terms of contract or the relevant rule cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct.
" We have referred to the above decision in detail to dispel any doubt about the correct position of low.
It is erroneous to hold that where a preliminary enquiry into allegations against a temporary govt.
servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature.
Learned counsel for the respondent placed reliance on the decisions of this Court in Nepal Singh vs State of U.P. & Ors.; , and Ishwar Chand Jain vs High Court of Punjab & Haryana & Anr., ; in support of his contention that the termination order is punitive in nature.
In Nepal Singh 's case a disciplinary inquiry was instituted against Nepal Singh who was a temporary sub Inspector of Police, on the charge of having contracted a second marriage during the life time of his first wife without prior permission of the Government in violating of Rule 29 of the U.P. Government Servants ' Conduct Rules, 1956.
Before any finding could be rendered the inquiry was dropped for want of territorial jurisdiction of the concerned Superintendent of Police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary Government servants by giving him one month 's pay in lieu of notice.
nepal Singh unsuccessfully challenged the order of termination before the High Court, but his appeal was allowed by a three Judge Bench of this Court.
This Court quashed the order of termination on three grounds.
Firstly,it held that the order of termination was arbitrary, violative of 41 Articles 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations.
Secondly, the grounds mentioned in the report of the superintendent of Police on the basis of which the services of the Sub Inspector had been terminated were mere allegations and there was no definite material for terminating his services.
Thirdly, the Court held that since the inquiry against Nepal Singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) of the Constitution.
The Court further held that the termination order had been passed to circumvent the constitutional provision of article 311(2) of the Constitution.
The facts and circumstances in Nepal Singh 's case were quite different than those in the instant case.
However, Nepal Singh 's case is no authority for the proposition that the services of an ad hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service.
The Court 's observations in Nepal Singh 's case that since the enquiry against nepal Singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary govt.
servant with a view to circumvent the protection of Art 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case.
It appears that he decisions in the case of Champaklal (supra) and R.C. Lacy (supra) and the principles laid down therein were not brought to the notice of the Bench.
Had those decisions been placed before the Court, the finding that the termination order had been passed to circumvent the provision of article 311(2) merely because departmental inquiry was dropped and the termination order had been passed, may not have been made.
The decision of Nepal Singh 's case in this regard is per incurium.
In Ishwar Chand Jain 's case the order of termination of Probationary Judicial Officer was set aside by this Court on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the Officer on probation.
The Court held that some of the material which had been taken into account in adjudging the Judicial Officer 's work and conduct as unsatisfactory was not relevant.
The decision has no relevance to the instant case.
We are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case.
On the other hand our view is fully supported by the decision of three Judge Bench of this Court in R.K. Misra vs U.P. State Handloom Corporation, In the instant case the repondent was a temporary Government servant and there was adverse report regarding his work which was reflected in the adverse remarks made for the year 1977 78.
The competent authority held a preliminary inquiry in the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of an educational institution, On result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent 's services in exercise of its power under the terms of contract as well as under the relevant rules applicable to a temporary Govt.
servant.
It never intended to dismiss the respondent from service.
Holding of preliminary inquiry does not affect the nature of the termination order.
The allegations made against the respondent contained in the counter affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.
The High Court failed to consider the question in proper perspective and it interfered with the order of termination in a casual manner.
We, accordingly, allow the appeal and set aside the order of the High Court and dismiss the respondent 's Writ Petition.
There will be no order as to costs.
Y.Lal Appeal allowed.
| A division Bench of this Court in V.J. Jain vs Shri Pradhan and Ors., ; observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention.
The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation.
This view was reiterated in the later case of Om Prakash Bahl vs Union of India, W.P.No. 845 of 1979 decided on 15.10.1979.
As the aforesaid view required reconsideration, the instant SLPs and WPs had been referred to and heard by a constitutional bench.
On December 1, 1988, the officers of the Directorate of Revenue Intelligence upon getting information that contraband gold has been secreted in the room of petitioner No. 1 searched the room in the presence of independent witnesses.
Another person was also present inside the room.
The officers recovered one Samsonite punch, and some bundles of Indian currencies from the table drawer in that room.
Inside the said pouch, there were five gold biscuits of 24 ct.
purity and of foreign origin, and seized the same under a Mahazar.
On 24th February, 1989, that State Government passed two separate orders of detention under section 3(1)(iv) of the Conservation of 103 Foreign Exchange and Prevention of Smuggling Activities Act 1974 and the petitioners were taken into custody and detained in the Central pension.
On 17th April, 1989, the detenus made representation to the Government, which could not be immediately considered since they required translation, and collection of information and comments.
In the meanwhile, the matter was referred to the Advisory Board, which had its meeting on 20th April, 1989 considered the case of the detenus, and reported that there was sufficient cause for detention.
On 27th april, 1989, the Government accepted the report and confirmed the detention orders.
On 6th and 7th May, 1989 the Government considered and rejected on representation of the detenus and they were informed of the same.
The detention orders were challenged in the High Court through a writ petition but the High Court dismissed the same.
In the appeals and writ petition to this Court, the main question for consideration was, whether the confirmation of detention order upon accepting the report of the Advisory Board renders itself invalid solely on the ground that the representation of the detenu was not considered, and the subsequent consideration of the representation would not cure that invalidity.
Disposing of the matters, the Court, HELD: 1(a) With regard to liberty of citizens the Court stands guard over the facts and requirements of law, but Court cannot draw presumption against any authority without material.
[115G] (b) The confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation of the detenu.
[115G] (c) There may be cases where the Government has to consider the representation only after the confirmation of the detention.
[115H] 2(a) There are two constitutional safeguards, viz: Clause (4) of Article 22, and Clause(5) of Article 22.
The former requires that if a detenu is liable to be detained for a longer period than three months, hiscase shall be referred to the Advisory Board which, must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
The latter provides that when any person is detained in pursuance of an order made under any 104 law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
[108E G] 2(b) The detenu has two rights under clause (5) of Article 22 of the Constitution: (i) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to afforded the earliest opportunity of making a representation against the order of detention.
[108H; 109A] 3.
The function of the Advisory Board is purely advisory and its report will enable the Government to detain the person beyond three months provided the detention is valid on its merits and does not otherwise offend the Constitution.
[108F] 4(a) The constitution right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.
The obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government 's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to from its opinion and send a report to the Government.
[110B C] 4(b) It is implicit in clause (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
it has to consider the representation on its own without being influenced by any such view of the Board.
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the reference.
The Government consider the representation to ascertain essentially whether the order is in conformity with the power under the law.
[110C D] 4(c) The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention.
The consideration by the Board is in additional safeguard and not a substitute for consideration of the representation by the Government.
[110E] 4(d) The right to have the representation considered by the 105 Government, is safeguarded by clause (5) of Article 22, and it is independent of the consideration of the detenu 's case and his representation by the Advisory Board under clause (4) of Article 22 read with section 8(c) of the .
[110F] SK.
Abdul Karim & Ors.
vs State of West Bengal, ; , Pankaj Kumar Chakrabarty & Ors.
vs State of West bengal; , ; Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr.,[1969] 2 SCC 426; B. Sundar Rao & Ors.
vs State of Orissa, ; John Martin vs State of West Bengal, [1975] 3SCR 211; .
S.K. Sekawat vs State of West Bengal, and Haradhan Saha & Anr.
vs State of West Bengal & Ors.
,[1975] , referred to.
5(a) The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution.
Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible.
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible.
[110H;111A] 5(b) The words "as soon as may be" occuring in clause (5) of Article 22 reflect the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.
However, there can be no hard and fast rule in this regard.
It depends upon the fact and circumstances of each case.
There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with the requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation.
Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
[11B D] Jayanarayan Sukul vs State of West Bengal, ; ; Frances Coralie Mullin vs W.C. Khambra and Ors., ; ; Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police & Ors., ; and Aslam Ahmed Zahire Ahmed Shaik vs Union of India & Ors.
, ; , referred to.
6(a) There is no constitutional mandate under clause (5) of Arti 106 cle 22, much less any statutory requirement to consider the representation before confirming the order of detention.
As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention.
indeed there is no justification for imposing the restriction on the power of the Government.
[115C D] 6(b) Clause 5) of Article 22 suggests that the representation could be received even after confirmation of the order of detention.
The words "shall afford him the earliest opportunity of making a representation against the order" in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under section 8 of the Act.
But ifthe detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statue.
The confirmation of the order of detention is not conclusive as against the detenu.
It can be revoked suo motu under Section 11 or upon a representation of the detenu.
[116A B] 6(c) So long as the representation is independently considered by the government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention.
The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention.
Nor it could be presumed that such consideration is not an independent consideration.
[116C D] V.J. Jain vs Shri Pradhan & Ors.
, ; ; Om Prakash Bahl vs Union of India & Ors., W.P. No. 845 of 1979 decided on 15.10.1979 and Khairul Haque vs State of West Bengal W.P.No.
246/69 decided on 10.9.1969, over ruled; Khudiram Das vs State of West Bengal & Ors., ; , distinguished.
|
Appeal No. 899 of 1966.
364 Appeal by special leave from the judgment and decree dated May 14, 1965 of the Allahabad High Court in Second Appeal No. 4136 of 1964.
Yogeshwar Prasad and Harder Singh, for the appellants.
S.N. Anand, for the respondents.
The Judgment of the Court was delivered by Shah, J.
Gokal Chand first respondent in this appeal was a tenant of shop No. 34/2, Dispensary Road, Dehra Dun, which belongs to Munni Devi the first appellant in this appeal.
Munni Devi applied to the Rent Control & Eviction Officer.
Dehra Dun, for an order in ejectment on the plea that Gokal Chand had committed default in paying rent.
The R.C. & E. Officer passed an order observing that the tenant did not lead any evidence to show that he had not vacated the shop and it was clear on the evidence that the tenant was not in occupation of the shop and had let it out to one Alladia.
He accordingly declared that the shop was vacant.
The R.C. & E. Officer allotted the shop to Kishorilal.
Kishorilal then applied to the R,C. & E. Officer that the shop allotted to him was in the illegal occupation of Rawel Chand s/o Gokal Chand.
On May 22, 1957, the R.C. & E. Officer declared that Gokal Chand the previous tenant had vacated the shop.
and that Rawel Chand was in illegal occupation of the shop.
He accordingly issued a notice under section 7A (3) of the Act.
Gokal Chand then filed a civil suit in the Court of the Munsif.
Dehra Dun, for a declaration that he was an allottee and a tenant of the shop and that he was in possession in that capacity.
To that suit were impleaded Munni Devi and Kishorilal as party defendants.
The Trial Court held that Gokal Chand had at no time vacated the shop, no.r was his tenancy terminated.
He accordingly made an order declaring that Gokal Chand was an allottee and a tenant of the shop.
and was entitled to remain in occupation of the same.
An appeal against that order to the District Court was dismissed.
A second appeal to the High Court was also unsuccessful.
In this appeal with special leave, counsel for Munni Devi and Kishorilal urges that the order of the civil court was without jurisdiction.
Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 194 7, imposes certain restrictions on eviction of tenants.
By section 7(1)(a) it is provided: "Every landlord shall, within 7 days after an accommodation becomes vacant by his ceasing to occupy it or 365 by the tenant vacting it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever, give notice of the vacancy in Writing to the District Magistrate.
" Sub sections (2) & (3) of section 7 provide: "(2) The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant.
(3) No tenant shall sub let any portion of the; accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously X X obtained." Section 7A which was added by Act 24 of 1952 provides, in so far as it is material: "(1) Where in pursuance of an order of the District Magistrate under sub section (2) of section 7, the vacancy of any accommodation is require.
be reported and is not reported, or where an order requiring any accommodation to be let or not to be let has been duly passed under sub section (2) of Section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause, within a time to.
be fixed by him, why he should not be evicted therefrom: Provided (2) If such person fails to appear in reply to the notice served under sub section (1) or, if he appears but fails to satisfy the; District Magistrate that the order under sub section (2) of Section 7 was not duly passed and that he is entitled to remain in occupation of the accommodation the District Magistrate may, without prejudice to any other action which may be taken against him under this Act or any other law for the time being in force, direct him to vacate the premises within a period to be specified.
" Section 16 of the Act provides: "No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court." 366 Counsel for the appellants urged that the suit filed by Gokal Chand was not maintainable, for the Act sets up a complete machinery for determining after enquiry whether any premises governed by the Act have. fallen vacant, and for making an order calling upon the; person or persons in wrongful occupation to vacate and deliver possession of the premises, and that by express enactment in section 16, the order of the District Magistrate is declared final.
We are unable to agree with that contention.
Lord Esher, M.R., in Reg.
vs Commissioner of Income tax(1), observed: "When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise.
There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist.
The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as.
the jurisdiction, and on finding that it does exist, to proceed further to do something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.
In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts.
including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
" This rule was approved by this Court in Ebrahim A boobakar and Ant.
vs Custodian General of Evacuee Property (2).
Munni Devi applied for an order in ejectment against Gokal Chand on the.
plea that he had committed default in paying rent.
The R.C. & E. Officer held that Gokal Chand had vacated the premise and had inducted a sub tenant.
The LegiSlature has in (1) 21 C.B.D. 313.
(2) ; 367 vested the District Magistrate with power on the existence of a vacancy to allot the premises to another person, but the Legislature has not made the determination of the preliminary state of facts by the District Magistrate conclusive.
The jurisdiction to pass an order in ejectment only arises if there is a vacancy.
The right of a tenant in possession is a valuable right and there is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises.
Undoubtedly he has jurisdiction to make orders under sections 7 & 7A of the Act, if there be a vacancy.
But whether there is a vacancy is a jurisdictional fact which could not to be decided by him finally.
By reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does not possess.
It is only when the order is with jurisdiction that the order is not liable to be challenged in a Civil Court by virtue of section 16 of the Act.
In Chaube Jagdish Prasad vs Ganga Prasad Chaturvedi(1), the respondent had obtained on rent the "accommodation" in dispute from the appellant.
The appellant submitted an application under section 3A of the U.P. (Temporary) Control of Rent and Eviction Act, 947, to the House Allotment Officer (on whom the power of the District Magistrate was conferred) for increase in rent.
That Officer passed an order increasing the rent payable by the tenant on the ground that there was a new construction.
The appellant then instituted a suit under section 5 (4) of the Act for the enhancement of "reasonable annual rent".
The respondent contended, inter alia, that there was no new construction of "accommodation" after June 30, 1946, and that, therefore, the suit was not maintainable.
The Trial Court found that there was a new "accommodation" and the Court could determine its rent under section 5(4).
In revision, the High Court held that though the construction was new, the "accommodation" in the occupation of the respondent was not new.
and therefore section 3A of the Act was inapplicable.
In appeal, this Court held that a wrong decision made by the House Allotment Officer who exercised the power of the District Magistrate under section 3A of the Act or an order made by him in excess of his power under that section could be rectified by a suit under section 5(4) of the Act.
In the present case the civil court has come to the conclusion that Gokal Chand had never vacated the shop and no vacancy had occurred.
By wrongly deciding that Gokal Chand had vacated the shop, the District Magistrate had no power to pass orders directing forcible ejectment and allotting the shop to another person.
The appeal fails and is dismissed with costs.
Y.P. Appeal dismissed.
(1) (1959) Supp.
(1) S.C.R. 733.
| A Hindu executed a will directing his wife to sell, Sch.
C property and utilise the amount for celebrating the marriage of one Sitharathnam and for constructing a Ramamandiram in his name, and further devised that his wife shall enjoy Sch.
E property absolutely and after her life time whatever remained out it, it will pass to two named persons.
The wife predeceased the testator, and the marriage of Sitharathnam was celebrated in the testator 's life time and expenses in that behalf were defrayed by the testator.
The appellants who were the testator 's nearest heirs, claimed the properties contending that the disposition of the Sch.
C & E properties lapsed, because the wife who was the legatee of the properties died before the testator and that there was nothing in the will providing for the acceleration of Sch.
E property in case of the legatee 's dying in the testator 's life time.
HELD : (i) The wife had no beneficial interest in Sch.
C property.
She was merely appointed to sell the property and to, utilise the proceeds for the purposes specified in the will.
There was no "joint bequest" of Sch.
C properties.
In the absence of allocation of the amounts to be utilised for celebrating the marriage of Sitharathnam and for constructing a Ramamandiram, it must be presumed that the fund was to be utilised in equal moieties for the two purposes.
Failure of one of the purposes will result in a moiety of the amount devised falling into the residue.
Since no part of the fund was needed for the marriage of Sitharathnam the legacy failed pro tanto and fell into the residue.
Under the will the wife was made the owner of the residue, but by her death during the life time of testator the residuary bequest lapsed and vested as on intestacy in the nearest heirs of the testator.
The devise of a moiety of the fund to be applied for the construction of a Ramomandiram however stood good and the trust had to be carried out.
The wife died during the life time of the testator but on that account the charitable trust was not extinguished.
[31 E; 32 D] Jogeshwar Narain Deo vs Ram Chund Dutt and Others, L.R. 23 I.A. 37, 43, referred to.
(ii) The wife died during the life time of the testator : thereby the estate in Sch.
E properties granted to the named persons was accelerated.
The nearest heirs of the testators were therefore not entitled to any share in Sch.
E properties.
Section 105 of the , enacts that a legacy shall lapse and form part of the residue of the testator 's property if the legatee does not survive the testator except where it appears by the will that the testator intended that the legacy shall, on the legatee not surviving him, go to some other person.
It could not be said that the intention 29 of the testator that a legacy shall not lapse may be given effect to only if the testator expressly directs that if the legatee dies during his life time the legacy shall go to some other person, and that intention to exclude lapse cannot be inferred.
Section 105(1) does not say, nor does it imply, that the testator must have expressly envisaged the possibility of lapse in consequence of the legatee dying during his life time and must have made a provision for that contingency.
[33 F] Browne vs Hope, L.R. 14 Equity Cases 343; Lowman Devenish vs Pester, ; Dunstan, Dunstan vs Dunstan, , referred to.
|
vil Appeal Nos. 2436 to 2438 of 1989.
From the Judgment and Orders dated 7.4.83 and 2.5.
1986 of the Orissa High Court in O.J.C. Nos. 108 and 109 of 1986 and 6 of 1984 respectively.
T.U. Mehta, Gobind Das and Vinoo Bhagat for the Appellants.
G.L. Sanghi, R.K. Mehta and A.K. Panda for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
Special leave granted.
These three appeals raise a common question about the interpretation of the term "family" in Section 37(b) of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the Act).
According to clause (a) of Section 37 of the Act the term "person" includes inter alia family.
Clause (b) of Section 37 being the clause under consideration may usefully be reproduced.
It reads: "(b) "family" in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual and their children, whether major or minor, but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970." According to the appellants in these three appeals partition in their respective families had been taken place in the year 1965.
The Act except Chapters III and IV came into force on Ist October, 1965.
Chapter IV of the Act which contains the provisions relating to ceiling and disposal of surplus land came into force on 7th January, 1972.
Suo motu proceedings under Section 42 of the Act for declaration of surplus land and consequential purposes were initiated in the year 1974.
Objections were filed asserting inter alia that in view of the partition in the families of the appel lants in the year 1965 the land in the ancestral properties which fell in the share of the appellants could not be club 607 bed with those of their father.
This contention, however, was not accepted on the definition of the term "family" contained in Section 37(b) of the Act.
Such of the major married sons who as such had separated by partition before the 26th day of September, 1970 as contemplated by the definition of the term "family" were allotted separate ceiling units but so far as the appellants are concerned their shares were clubbed with those of their father and only one ceiling unit was allotted as contemplated by the relevant provision of the Act.
The appellants having failed to get relief in the ap peals and revisions filed by them under the Act challenged the orders passed by the various authorities under the Act in writ petitions before the .High Court of Orissa.
These writ petitions were dismissed relying on the decision of a Full Bench of that Court in Nityananda Guru vs State of Orissa and others, A.1.R. 1983 Orissa Page 54 (F.B.).
It is these orders of the High Court which have been challenged in these appeals.
The validity of Section 37(b) of the Act does not appear to have been challenged before the High Court nor has it been seriously challenged even before us except by making a faint submission that even if by virtue of the said provision being incorporated in the 9th Schedule, it may be immune from challenge in view of Article 3lB of the Consti tution, the protection under Article 31C would not be avail able to it and it would be hit by Article 14 unless it was established that it had nexus with the policy of the State towards securing any of the principles laid down in Part IV of the Constitution.
This submission even if it is permitted to be raised for the first time in this Court has obviously no substance in view of the undisputed position that the Act aims at agrarian reform and the provisions with regard to declaration of surplus land and its distribution among the have nots namely landless persons is apparently to give effect to the policy of the State towards securing the principle laid down in Article 39(b) of the Constitution occurring in Part IV thereof and Section 37(b) has a clear nexus with that policy.
The aforesaid submission has, there fore, no substance.
At this place it may also be pointed out that validity of analogous provisions dealing with laws for declaration and distribution of surplus land framed by the States of Andhra Pradesh, Haryana and Maharashtra has already been upheld by this Court after rejecting challenges to them on various grounds in Tumati Venkaish etc.
vs State of Andhra Pradesh; , ; Seth Nand Lal & Anr.
vs State of Haryana & Ors.
, ; and Waman Rao & Ors. etc.
vs Union of India and Ors.
, ; 608 The main attack against the judgment of the Full Bench of the Orissa High Court in the case of Nityananda Guru (supra) relying on which the writ petition filed by the appellants were dismissed by the High COurt has been on the ground that partition in the respective families of the appellants in the year 1965 having been accepted, Section 37(b) of the Act had to be read in such a manner as to exclude the land which had fallen to the share of the appel lants even though they did not fall within the category of "a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970" as contemplated by the definition of the term "family" in the said section.
It was urged that this purpose could be achieved by adding the word "or" between the words "major" and "married".
According to learned counsel if that is done the term "individual" would not include a major son who had separated by partition before the 26th day of September, 1970 even if he had not married prior to that date.
We find it difficult to take recourse to this mode of interpretation of Section 37(b) in view of its plain language.
1n British India General Insurance Co., Ltd. vs Captain Itbar Singh and Others, sub section (2) of Section 96 of the was sought to be interpreted by the learned Solicitor General in a manner which involved addition of certain words.
The submission was repelled and it was held: "The learned Solicitor General concedes this and says that the only word that has to be added is the word "also" after the word "grounds".
But even this the rules of inter pretation do not permit us to do unless the section as it stands is meaningless or of doubtful meaning, neither of which we think it is.
" On a plain reading of the definition of the term "fami ly" in Section 37(b) of the Act we are of the view that the said definition as it stands is neither meaningless nor of doubtful meaning.
In this connection, it may be pointed out that keeping in view the agrarian reform which was contem plated by the Act and particularly the provisions of Chapter IV relating to ceiling and disposal of surplus land which were calculated to distribute the surplus land of big tenure holders among the overwhelming have nots of the State the Legislature in its wisdom gave an artificial meaning to the term "family".
The main provision containing the definition of the term is to be found in the first part of Section 37(b) namely "family in relating to an individual means the individual, the husband or wife as the case may be of such individual and their children whether major or minor.
"The later part of Section 609 37(b) namely "but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970" does not on the face of it contain a matter which may in substance be treated as a fresh enactment adding something to the main provision but is apparently and unequivocally a proviso containing an exception.
This admits of no doubt in view of the words "but does not include".
In the Commissioner of Income Tax, Mysore vs The Indo Mercantile Bank Limited, [1959] Supp. 2 SCR 256.
it was held: "Ordinarily the effect of an excepting or a qualifying proviso is to carve something out of the preceding enactment or to qualify something enacted therein which but for the proviso would be in it and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and proper ly construed without attributing to it that effect." (Emphasis supplied) That apart the submission made by learned counsel for the appellants would also lead to an anomalous situation if the word "or" is added between the words "major" and "mar ried".
Not only a major unmarried son who had separated by partition before the 26th day of September, 1970 would get excluded from the definition of the term "family" even a minor married son would get so excluded.
The result would be that even though marriage of a minor son is prohibited by law such son would be placed at an advantageous position to a minor son who was law abiding and had not married.
Further the submission made by learned counsel for the appellants completely ignores the words "as such" used in the later part of Section 37(b) which contains the exception referred to above.
Given its proper meaning the words "as such" can only be interpreted to mean that it is only such son who would get the benefit of the exception who had separated by partition or otherwise before the 26th day of September, 1970 as "major married son".
The submission by counsel for the appellants that the words "as such" qualify only "son" and not "major married son" and are meant to distinguish son from brother or uncle etc.
is misconceived on the plain language of Section 37(b) which contemplates clubbing of land of spouse and children only and not of brother and uncle etc.
So, the question of using the words "as such" to distinguish son from brother or uncle etc. does not arise.
Further, for accepting this submission the words "major married" will have to be omitted as superfluous which 610 cannot be done in the garb of interpretation.
Learned counsel for the appellants also urged that a son who had separated by partition or otherwise from his father was himself an "individual" and if his land was clubbed with that of his father, he will be subjected twice to the provi sions relating to declaration of surplus land.
This submis sion too is equally untenable.
Land of such son alone who does not fall within the exception is to be clubbed with that of his father and with regard to land which had been so clubbed the son obviously cannot be treated as another "individual" in his own right for purposes of declaration of surplus land.
Only such son who falls within the exception will be liable to be dealt with as an "individual" in his own right, as his land has not been clubbed with that of his father.
Even on the facts of these appeals nothing has been brought to our notice to indicate that the land of the appellants which was clubbed with that of their father was subjected twice to the provisions relating to declaration of surplus land treating the appellants also as individuals.
It was then urged by learned counsel for the appellants that according to the definition of the term "family" as contained in Section 37(b) of the Act, land of a married daughter is liable to be clubbed twice; firstly, with that of her father and secondly, with that of her husband.
Ac cording to him it is against the spirit of the law dealing with the question of declaration of surplus land.
Suffice it to say, so far as this submission is concerned that none of appellants in these appeals is a married daughter and as such we do not find it necessary to go into this question.
We may also point out that dealing with an almost similar submission with regard to interpretation of Section 123(7) of the Representation of the People Act, 1951 it was held by a Constitution Bench of this Court in Rananjaya Singh vs Baijnath Singh and others, [1955] S.C.R. Page 671 at 676: The learned advocate, however, contended that such a construction would be against the spirit of the election laws in that candidates who have rich friends or relations would have an unfair advantage over a poor rival.
The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder.
If all that can be said of these statutory provisions is that construed according to the ordinary.
grammatical and natural meaning of their language 611 they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and not to this Court.
" In view of the foregoing discussion we are of the opin ion that the Full Bench of the Orissa High Court in the case of Nityananda Guru (supra) lays down the correct law.
One more submission has been made by learned counsel for the appellants in the Civil Appeal arising out of SLP (Civil) No. 9079 of 1986.
It has been urged that certain Home Stead urban land of the appellants not connected with agricultural lying inside Udala Notified Area Council has wrongly been included as agricultural land in the draft statement.
This submission does not appear to have been made either before the High Court or before the authorities under the Act.
In the counter affidavit filed by the Additional District Magistrate (Land Reforms), Mayurbhanj, Orissa it has been stated in reply to paragraphs 21 to 24 of the SLP that there is no Home Stead land and no non agricultural land belonging to the appellant land holders in the Notified Area Council of Udala.
It has also been stated in paragraph 3(c) of the said counter affidavit that no Notification as contemplated by Section 73(c) of the Orissa Land Reforms Act has been made by the State Government.
It has further been stated therein that the Urban Land (Ceiling and Regulation) Act, 1976 has not been made applicable so far to the Udala Notified Area Council.
In this view of the matter it is not possible for us to record any finding with regard to this submission, and consequently we express no opinion in this behalf.
In the result, we find no merit in any of these appeals and they are accordingly dismissed but in the circumstances of the case there shall be no order as to costs.
R.S.S. Appeals dismissed.
| The respondents were working as Scientific Assistants in the office of the Botanical Survey of India in the scale of Rs. 210 425.
The Third Central Pay Commission had considered the cases of the Scientific Assistants generally and had recommended different levels of scale of pay for them depending upon their education and job content.
On the basis of the Pay Commission recommendation, the Scientific Assistants in the office of the Botanical Survey of India were allocated Scientific Assistants Level II pay scale with effect from 1.1.1973.
The respondents, on the other hands, claimed the scale of Rs.550 900 recommended by the Pay Commission for Level I posts, which scale was also recommended by the Committee of the Joint Consultative Machinery.
The Government referred the matter to a Board of Arbitrators to Consider whether the Scientific Assistants of the Botanical Survey of India were entitled to the revised scale of Rs.550 990.
The Board, however, recommended two levels of scale of pay, as had been done by the Pay Commission.
Feeling aggrieved by the Award of the Board, the respondents filed a writ petition which was transferred by the Calcutta High Court to the Central Administrative Tribunal, Calcutta.
The Tribunal came to the finding that in recommending two levels of scale of pay the Board of Arbitrators had travelled beyond the terms of reference.
Accordingly, the Tribunal set aside the Award, allowed the writ petition and accorded to the respondents the benefit of the scale of pay of Rs.550 900.
Dismissing the appeal, it was, HELD: (l) The terms of reference of the Board of Arbitrators was very clear and specific.
Under the terms of reference there was no scope for prescribing two levels of PG NO 754 PG NO 755 scale.
It was therefore apparent that the Board had acted beyond the terms of reference, and its award was illegal and not binding upon the parties.[758 H;759A] (2) The Pay Commission had suggested two levels on the basis of nature of scientific work and the qualifications required therefor, the higher grade requiring a post graduate education and calling for some degree of originality and capacity for independent work.
At the same time, the Pay Commission had observed that before dividing the grade of Scientific Assistants into two levels, the job content of the post should be taken into account.[759D;790 B C] (3) The two levels could be brought into existence if the nature of work which was being performed by the scientific Assistants of the Botanical Survey of India called for some degree of originality and carrying out of independent work and investigation, which was the guiding factor for such a division.[759F G] (4) It has been found by the Tribunal that the Scientific Assistants of the Botanical survey of India were not expected to exhibit any originality or capacity for doing any independent work and that the job contents of the existing Scientific Assistants were similar to those of Level II Scientific Assistants recommended by the Pay Commission.[760F] (5) As the job content did not require the qualifications as prescribed by the Commission for the Level l Scientific Assistants, it would not be prudent to divide the post of Scientific Assistant into Level I and Level ll.
At the same time, the existing Scientific Assistants should not be deprived of the pay scale of Rs.550 900.
The appellants may give effect to the recommendations of the Pay Commission with regard to the future recruitments after framing rules in that regard.
[760G H; 761B]
|
Appeal No. 105 of 1952.
Appeal from the Judgment and Decree dated the 16th September, 1949, of the High Court of Judicature at Madras (Subba Rao and Chandra Reddi JJ.) in Appeal No. 162 of 1946 arising out of Judgment and Decree dated the 30th November 1945 of the Court of the Subordinate Judge of Tanjore in Original Suit No. 34 of 1945.
section Ramachandra Iyer, for the appellant.
T. R. Srinivasan, for the respondents.
February 27.
The Judgment of the Court was delivered by MAHAJAN J.
One Thangathammal who was a dasi (dancing girl) lived in the Tanjore district in Madras State and died possessed of some properties.
She left her surviving three daughters, Saraswathi, Jagadambal and Meenambal.
Jagadambal filed the suit out of which 941 this appeal arises against her sisters for partition of the movable and immovable properties set out in the plaint and for allotment of a third share to her therein.
She alleged that her mother was married to one Thyagaraja Pillai, that the properties in suit were the stridhanam properties of her mother who died intestate on 26th July, 1943, and that according to the law or custom of the community to which the parties belonged she and her sisters were entitled to share equally the properties of her mother.
Saraswathi Ammal, the 1st defendant contested the suit.
She pleaded that her mother was not a married woman but a dasi who followed her hereditary occupation and was attached to Shri Saranatha Perumal temple at Tiruchurai in the Tanjore district, that of the three daughters the plaintiff and the 2nd defendant married and lived with their husbands, while she (1st defendant) was duly initiated as a dasi in the said temple and remained unmarried and that according to the law and custom of the community, the mother 's property devolved solely on her to the exclusion of the plaintiff and the 2nd defendant.
The 2nd defendant supported the 1st defendant 's case.
The material issue in the suit was issue No. 1 which was in these terms: " Who is the proper heir of Thangathammal.
Whether according to custom as set tip by the plaintiff, all the daughters are heirs, or according to the custom put forward by the 1st defendant, the unmarried daughters alone are entitled to inherit." The Subordinate Judge dismissed the suit holding that Thangathammal was a dasi and not a married woman, that according to the custom of the dasi community in South India, a dasi daughter is regarded as a nearer heir to the mother than a married daughter and that the 1st defendant was entitled to remain in possession of the suit properties.
Against this decision an appeal was taken to the High Court.
The High Court reversed the decree of the Subordinate Judge and held that the custom pleaded by the 1st defendant 942 was not proved and that the rule of propinquity of Hindu law as a rule of justice, equity and good conscience, governed the succession and the married and dasi daughters were equally entitled to the inheritance.
It was further held that a dasi daughter was not in the status of a maiden or unmarried daughter for purposes of succession to stridhanam property.
Leave to appeal to the Supreme Court was granted under article 133 of the Constitution.
After bearing the learned counsel for the appellant, we feel no hesitation in concurring with the decision of the High Court.
It was contended that the High Court was in error in holding that the custom set up by the defendant was not proved.
To prove the custom that a dasi daughter was a preferential heir and excluded her married sisters reliance was placed on, the evidence of some members of the community and reference was also made to certain instancese same kind of evidence was led by the plaintiff support of her case.
The evidence of both the parties on the the issue of custom is of an unsatisfactory and inconclusive character and from it no inference can be drawn of the existence of a uniform, certain and ancient custom prevailing in the community on this point.
Out of the defendant 's witnesses, the first witness, Rajagopal Pillai, deposed that his wife was the daughter of dasi Kamakshi who had six daughters of whom three were married and three were dasis, that on Kamakshi 's death, her dasi daughters alone would take the inheritance and that his wife, would be excluded.
This statement does not hurt him in any way as his wife will not be bound by what be might state.
His bald assertion about the custom in the community is not of much value.
He does not disclose any source of his information.
In cross examination he admitted that he did not know a single specific instance where such a custom was enforced .
The second witness on the point is the first defendant.
She stated that one Tulasi 's sister Mangalam got no share in her mother Ammani 's properties.
In cross examination it was admitted that Mangalam died about fort years ago, 943 i.e., some time before the defendant was born.
She could therefore have no personal knowledge about Ammani 's instance.
No written record of that inheritance is forthcoming.
Mangalams son Govindaswami Pillai appeared as D. W. 3.
He deposed that Mangalam 's mother Ammani had divided her properties between her dasi daughters in her lifetime.
The instance therefore is not an instance concerning succession and cannot be treated as relevant in this enquiry.
The 1st defendant further deposed to an instance in Srirangam when succession opened out on the death of dasi Chellappa.
It was said that her property was taken by her dasi daughter Visalakshi to the exclusion of her married daughters Marakatham and Rukmini and that the assets were worth a lakh of rupees.
One would have expected some written documents about that sucession if it took place in the manner deposed to.
In the absence of any evidence from the descendants of Chellappa and in the absence of any documentary evidence regarding that succession it is difficult to place any reliance on this so called instance.
Defendant No. I stated that her knowledge of it was only from hearsay, and the requirements of section 32 of the Evidence Act not being fulfilled, her evidence on this point cannot be treated as admissible.
The third witness, about whom reference has already been made, apart from deposing as to Mangalam 's instance also deposed about the instance of dasi Meenakshi.
Her daughter Jeevaratnam is married to the witness.
He said that Meenakshi 's dasi daughters inherited her property and that his wife was excluded.
The only property alleged to belong to Meenakshi was a house, the value of which is not known.
The succession is said to have occurred over twenty years ago.
None of the daughters of Meenakshi have been examined as witnesses in the case, to enable the court to find out the details about it and merely on the statement of this witness the instance cannot be held proved.
The fourth witness for the defendant is her non contesting sister.
She said nothing on the on the question of custom.
She, however, stated 944 that she was not entitled to a share in the assets of her mother.
When asked why she was making that statement, she said that she was saying so because her husband and some.
elders (whose names were.
not disclosed) had told her so.
Evidence of this character on the question of custom cannot be seriously considered.
Venugopal Pillai is the fifth,witness for the defendant.
He is the husband of the second defendant.
His evidence regarding the instance of Chellappa is purely, hearsay.
He deposed that he had learnt that a dasi 's married daughter is not entitled to claim a share as she is not her heir in the presence of a dasi daughter and therfore he told his wife not to claim a share.
He did not disclose the source of his information.
Janaki Ammal, the sixth witness, is a dasi.
She deposed that she has five daughters of whom two are married, one is a dasi and the other two are young girls and that according to their caste custom her properties on her death would devolve on her dasi daughters and that the married daughters must remain content with the presents given at their marriage.
In cross examination she admitted that she was deposing about the caste custom not from any specific instance in which the custom was observed but at the request of the defendant, and that she bad heard of this custom from her elders whose names she did not disclose.
She further admitted that she had an uncle living but she did not even ask him about the custom.
The witness, it appears, knows nothing about the custom and is giving evidence in order to oblige the defendant.
The next witness 'Who gave evidence on the issue is D. W. 8, Kamalathammal, a dasi.
Her mother was also a dasi.
She deposed that her mother 's properties were divided between her and her other dasi sister and Amba, her third sister, who was married, was not given a share.
In cross examination she admitted that Amba never asked for a share.
Neither was Amba produced, nor any written munici pal records showing that the witness actually inherited the property of her mother to the exclusion of Amba.
It is difficult to hold this incident proved merely on the 945 vague testimony of this witness.
Pappathi Ammal, the next witness in the case, is also a dasi.
She deposed that her father 's mother 's property devolved on her two dasi daughters on her death and that there was no married daughter in existence.
This evidence is of a neutral character and is not of much use on the question of custom pleaded in the case.
Apart from asserting that in this community dasi 's property devolves on her death only on the dasi daughters to the exclusion of married daughters, she cited the instance of Chellappa, a dasi of Srirangam.
It was elicited in cross examination that Chellappa left a house and landed properties.
No explanation is forthcoming why documentary evidence of revenue records about this instance has been withheld.
Oral evidences as to instances which can be proved by documentary evidence cannot safely be relied upon to establish custom, when no satisfactory explanation for withholding the best kind of evidence is given.
The last witness in the case is Rajamani Ammal, another dasi who does service in Sri Ranganathaswami temple.
She also referred to the instance of Chellappa.
She said that her jewels which were worth Rs. 1,000 would pass on her death to her dasi daughter.
She went to the length of saying that if a dasi leaves an only child who is a married woman, even then her properties will pass to a next heir such as a cousin and not a married daughter.
This is all the evidence led by the defendant to prove custom.
On this meagre and unsatisfactory material we cannot hold that the custom pleaded is proved.
The opinion evidence is not of a convincing character and evidence as to specific instances in support of the custom is really nil.
Our attention was also drawn to a decision of the Madras High Court in Shanmugathammal vs Gomathi Ammal(l) In that case the plaintiff, a member of the dasi community, claimed to succeed to her deceased maternal aunt and pleaded that the three surviving sisters of the deceased who were impleded as defendants were not entitled to inherit because one of them (1) 122 946 had been adopted by another dancing girl and the other two had become married.
The issue raised in the case was whether the custom set up by the plaintiff that among dancing women married women are excluded by a woman who continues to be ' a dasi is true, valid and enforceable.
Certain dasis gave evidence in support of the custom.
No evidence whatever was given to the contrary and the custom pleaded was held proved in the circumstances of that case.
Emphasis was laid on the circumstance that there was no evi dence whatsoever against the plaintiff and defendants 2 and 3 who denied the existence of the custom in their written statements did not venture to deny it on oath in the witness box.
The dasi community concerned in that case was a small one consisting originally of twenty houses of which only seven or eight were then in existence and in that situation it was said that the custom might well be one that was well recognized and so much a part of the consciousness of the community, that any dispute like the present dispute amongst so small a body of women would be an extremely rare occurrence and therefore impossible of proof and that the plaintiff could not reasonably be expected to search the presidency for witnesses to speak to some similar dispute in other places.
In our opinion, that decision does not furnish a good judicial instance in respect of the custom pleaded in the present case.
There is no evidence that the customs of that small community of dasis are applicable to the community of dasis in the present case which form a considerable community in this district.
Moreover, the case was decided on the peculiar circumstances of that case on very meagre materials and did not lay down any general custom of dasis on this point.
It is unnecessary to examine the plaintiff 's evidence in detail.
Suffice it to say that it is more than sufficient to rebut the evidence led by the defendant and it neutralizes its effect, if any.
In the absence of proof of existence of a custom governing succession the decision of the case has to rest on the rules of justice, equity and good conscience because admittedly no 947 clear text of Hindu law applies to such a case.
The High Court thought that the just rule to apply was one of propinquity to the case, according to which the married and dasi daughters would take the mother 's property in equal shares.
No exception can be taken to this finding given by the High Court.
No other rule was suggested to us leading to a contrary result.
It was argued that the dasis have a distinct status in Hindu society and, that a rule has been evolved by judicial decisions under which the state of degradation by itself furnishes a rule of preference in a competition between dasi daughters and married daughters.
The juidicial decisions referred to concern the community of prostitutes and the rule evolved concerning them has been abrogated by later decisions.
It was contended that though the said rule had been abrogated and was no, longer applicable to that community concerning which it was evolved, it should by analogy be applied to cases of succession to dasis.
Narasanna vs Oangu(1) was the first case cited.
There, an adopted niece of a prostitute dancing girl was preferred to a brother remaining in caste.
It was said that the legal relation between a prostitute dancing girl and her undegraded relations remaining in caste becomes severed and they are therefore not entitled to inherit the estate.
In Subbaratna Mudali vs Balakrishnaswami Naidu(2), the next, case cited, the facts were that a deceased woman Palani inherited the property in dispute from her mother Nagu, who inherited it from her mother Mottai who again inherited it from her father Arunachalam.
Arunachalam had two brothers Ramaswami and Mathurbutham and the question in that case was whether Mathurbutham 's daughter Seethai or Ramaswami 's daughter 's son Marudamuthu Mudali was the heir of Palani.
The learned judges held that Mathurbutham 's daughter was preferential heir to Ramaswami 's daughter 's son.
It was pointed out that the rule of preference based on degradation was no longer good law.
It was, however, (1) I.L.R. (2) 33 M.L.J. 207.
948 added that in cases of dancing girls the law remained as it was before.
Our attention was also drawn to certain observations in Subbaraya Pillai vs Ramaswami Pillai(1) at page 177, and to the decision in Balasundaram vs Kamakshi Ammal(2).
In the former case the learned Judges rejected the broad proposition that Degradation of a woman in consequence of her unchastity entails in the eye of the law cessation of the tie of kindred between her and the members of her natural family and also between her and the members of her husband 's family.
We think that decision on this point is sound in law.
Degradation of a woman does not and cannot sever the ties of blood and succession is more often than not determined by ties of blood than by the moral character of the heir.
In Balasundaram vs Kamakshi Ammal(2) it was held that the property acquired by the mother had been acquired by her as a married woman and notwithstanding her lapse into unchastity, it devolved on her daughters clothed with the ordinary character of property acquired by a Hindu female, that is to say, the daughters took a life estate in it.
The learned counsel attempted to persuade us to hold the custom pleaded proved by the assistance of decisions given in analogous cases and by applying the principles of the rules said to have been, enunciated in some of them.
Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undegraded ones.
As already said, we cannot subscribe to the view that any such rule can be evolved merely on logical grounds.
Its existence can only be justified on the basis of established custom.
No trustworthy evidence has been led in this case to establish that the daughters of a dasi by marriage lose their right of inheritance and form a separate community.
The correct approach to a case where a party seeks to prove a custom is the one pointed out by their Lordships of the (1) I.L.R. (2) 949 Privy Council in Abdul Hussein Khan vs Soma Dero(1).
It was there said that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case.
It is well settled that custom cannot be extended by analogy.
It must be estabished inductively, not deductively and it cannot be established by a priori methods.
Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another.
A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom.
The last point taken by the learned counsel was that under Hindu law the 1st defendant as a maiden was entitled to preference over her married sisters.
Defendant No. I was admittedly married to the idol and she has been on her own show.
living a life of prostitution.
The text of the Mitakshara dealing with the case of a virgin can.
not be applied to her case.
[Vide Tara vs Krishna(1)].
It is inconceivable that when the sages laid down the principle of preference concerning unmarried daughters they would have intended to include a prostitute within the ambit of that text.
For the reasons given above we see no force in this appeal and it is dismissed with costs.
Appeal dismissed, Agent for appellant: section Subramaniam.
Agent for respondent No. I : M. section K. Aiyangar.
| One R was granted bail on his furnishing a personal bond and three sureties which he did.
On July 7, one of the sureties S applied for the discharge of his bond.
On July 9, R made an application that the appellants surety bond be accepted in place of S, and the same day the appellant filed his surety bond.
The appellant also filed an affidavit that he had property enough to satisfy the bond and a vakil also certified to that effect.
The bond was sent for verification to the Tehsil and after verification was formally accepted on August 20.
Subsequently R absconded and the appellant 's bond was forfeited.
The appellant contended that the forfeiture was illegal and that his bond was not properly accepted as no warrant was issued for the arrest of R when S applied for the discharge of his bond, as the bond of S was not formally discharged and as R had not executed a personal bond on the reverse of the form on which the appellant bad executed his bond.
56 Held, that the surety bond of the appellant had been.
properly accepted and the forfeiture was legally made.
The provisions of section 502 of the Code of Criminal procedure were meant for the continuity of the surety bond and for enabling the accused to offer another surety bonds; they were not conditions precedent for the acceptance of a fresh surety in place of an earlier one.
There was no occasion to issue a warrant for the arrest of R as he was present, in Court on July 7, when S applied for the discharge of his bond and may have intimated to the Court that lie would offer fresh surety on July 9.
The Court was interested in getting a fresh surety for letting R continue on bail and it did no wrong in accepting the appellant 's surety bond which was offered.
The bond of S stood cancelled and appellant 's bond took its place.
The bond of the appellant was really accepted on July 9 when the appellant filed the affidavit as required by section 499 (3) of the Code and the Vakil also certified as to his solvancy.
It was immaterial that the bond was formally accepted on August 20.
Further, it was not necessary that each surety should execute the surety bond on the reverse of the personal bond of the accused.
|
il Writ Petition 747 of 1985.
(Under Article 32 of the Constitution of India).
S.R. Rangarajan and K.B. Rohtagi for the Petitioner.
Manoj Swarup and Miss Lalita Kohli Advocates for the Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
This writ petition under Article 32 of the Constitution has been filed by Baldev Raj Sharma against an order of the Bar Council of Punjab and Haryana rejecting his application for enrolment as an advocate.
On 4 March, 1972 the petitioner passed the Bachelor of Arts examination from the Punjabi University, Patiala.
In 1978 he joined the Bachelor of Laws (Academic) course in Kurukshetra University.
The course is of two years ' dura tion.
The petitioner completed the course and on 1 January, 1981 he was awarded the degree of Bachelor of Laws (Academ ic) by the Kurukshetra University.
During the year 198 1 the petitioner joined the LL.B. (Professional) course in the third year in Kanpur University as a regular student.
The Kanpur University confers two distinct degrees, LL.B. (General), which is a two year course, and LL.B. (Profes sional), which is a three year course.
A person who has been awarded the LL.B. (General) degree is eligible for admission to the LL.B, (Professional) third year.
The petitioner says that there is no distinction in the Rules and Regulations of the Kanpur University on whether LL.B. (General) course should be pursued by regular attendance or as a non collegi ate student.
It is urged that the LL.B. degree of the Kanpur University is recognised by the Bar Council of India for the purpose of enrolment as an advocate.
The petitioner attended classes as a regular student of the LL.B 864 (Professional) Course third year of the Kanpur University as required by the Rules and Regulations framed by that Univer sity.
He appeared in the final examination and was declared successful.
On 22 July, 1982 the degree of LL.B. (Profes sional) was issued by the Kanpur University to him.
Thereaf ter, on 4 August, 1982 the petitioner applied to the State Bar Council of Punjab and Haryana with the necessary enrol ment fee for enrolment as an advocate under the .
On 26 April, 1983 the Bar Council of Punjab and Haryana denied enrolment to the petitioner as an advocate on the ground that the petitioner has not fulfilled the conditions laid down in Rule 1(1)(c) of the Rules of the Bar Council of India framed under section 7(h) and (i), section 24(1)(c)(iii) and (iiia) and section 49(1)(d).
The detailed grounds of refusal supplied to the petitioner by the Bar Council of Punjab and Haryana state that the petitioner had obtained his Bachelor of Laws degree from the Kurukshetra University as a result of the examination held in April, 1980 as a private candi date.
It was an LL.B. (Academic) degree obtained in two years ' study as a private candidate.
The third year of law was pursued by him as a regular student from V.S.S.D. Col lege, Kanpur of the Kanpur University from which institution he obtained the professional degree.
It was further stated that the petitioner had not fulfilled the conditions laid down in the provisions detailed earlier as he had passed his two years ' law course as a private candidate from Kurukshe tra University and the third year law only by regular at tendance at the V.S.S.D. College, Kanpur.
It appears that the State Bar Council, upon receiving the application of the petitioner for enrolment as an advocate, obtained the opin ion of the Bar Council of India and in conformity with that opinion the State Bar Council has refused enrolment.
Section 24(1)(c) provides as follows: "24.
Persons who may be admitted as advocates on a State roll(1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely: (c) he has obtained a degree in law (i) . . (ii) . . 865 (iii) after the 12th day of March, 1967, save as provided in sub clause (iiia), after under going a three year course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Coun cil of India; or (iiia) after undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academ ic year 1967 68, or any earlier academic year from any University in India which is recog nised for the purposes of this Act by the Bar Council of India.
" Sub clause (iii) of clause (c) of section 24(1) entitles a person to be admitted as an advocate on a State roll if he has obtained a degree in law after 12th March, 1967 after under going three years ' of study in law in any University in India recognised for the purposes of the by the Bar Council of India.
An exception to this is provided by sub cl.
(iii) of cl.(c), under which a person is quali fied for admission as an advocate if he has obtained a degree in law after undergoing a course of study in law, the duration of which is not less than two academic years com mencing from the academic year 1967 68, or any earlier academic year from any University in India recognised for the purposes of the Act by the Bar Council of India.
The petitioner obtained a degree of Bachelor of Laws (Profes sional) from the Kanpur University in the examination of 1981.
He had pursued the third year course only of study pertaining to that degree as a regular student ,of the V.S.S. 'D. College, Kanpur in Kanpur University.
The Bar Council of India has framed Rules under the .
Rule 1(1)(c) of of the Bar Council of India Rules, 1975 provides that except as provided in section 24(1)(c)(iiia) of the a degree in law obtained from any University in the territory of India after 12th March, 1967 shall not be recognised for the purposes of section 24(1)(c)(iii) of the Act unless the conditions specified there are fulfilled, including the condition "that the course of study in law has been by regular, attendance at the requisite number of lectures, tutorials and moot courts in a college recognised by a University".
These rules were replaced by a fresh set of rules in 1984 and the new Rule 1(1)(c) is almost identical.
The Rule clearly requires that the course of study in law should have been by regular attendance for the requisite number of lectures, tutorials and moot courts and practical training.
The Rule envisages that for the entire period of the law course there must be a regular attendance of the student before he can satisfy the conditions necessary for enrolment as an advocate under the .
The Rules amplify what is intended in section 24(1)(c)(iii) 866 of the Act.
The three years ' course of study envisaged by that subclause in the Act intends that the three years ' course of study in law must be pursued by maintaining regu lar attendance.
We are unable to say that there is any inconsistency between the Act and the Rule.
So also in a case falling under cl.
(iii) of section 24(1)(c) of the Act, a course of study in law must be pursued for not less than two academic years in terms of that sub clause and Rule 1(1)(c) will apply to such a case also.
There is a substantial difference between a course of study pursued as a regular student and a course of study pursued as a private candi date.
The policy underlying the relevant provisions of the Bar Council Rules indicates the great emphasis laid on regular attendance at the law classes.
The conditions are specifically spelt out when the Act is read along with the Rules.
When so read, it is plain that a candidate desiring enrolment as an advocate under the must fulfil the conditions mentioned in section 24(1)(c)(iii) or section 24(1)(c)(iiia) read with Rule 1(1)(c) of the Bar Council of India Rules, 1975.
In the present case the petitioner failed to do so.
His application for enrolment was rightly reject ed.
The writ petition is dismissed, but in the circum stances, there is no order as to costs.
P.S.S. Petition dismissed.
| In a group of cases filed in this Court in connection with recruitment to the posts of Assistant District Attor neys by the State Public Service Commission.
The Respondent State had undertaken that if any post was to be filled up within one year, candidates who were selected by the Public Service Commission but had not been appointed, would be appointed in the order of merit.
However, the petitioner, who was selected by the Public Service Commis sion and, assigned 39th position in the order of merit, was not given the appointment, and a fresh notification was issued by the Public Service Commission for selecting candi dates for 27 posts.
Therefore, the petitioner filed a writ petition in this Court alleging that the respondents had arbitrarily and illegally denied him his right to appoint ment to the posts.
The respondent State contended that since only 37 posts were earmarked for general candidates and no vacancy had arisen before the expiry of one year, the petitioner could not be appointed as per the undertaking given by the State.
Disposing of the Writ Petition, this Court, HELD: When this Court had given the direction on the undertaking given by the State that selected candidates would be appointed in vacancies that would arise within one year, it was expected that the State Government would comply with the spirit and substance of the direction, and not to avoid compliance on the technical plea of expiry of the one year period.
The Court would not permit the State to avoid implementation of the order made by it on any technical or unjustified stand.
[192E F] It is incredible to believe that within one year even one vacancy had not arisen when 27 posts were subsequently notified for direct 190 recruitment.
It would be obvious, and it is common knowl edge, that vacancies keep arising as and when the incumbents of such posts either retire or resign or new posts are created.
On the fact situation arising out of the record of the proceeding, it has to be concluded that some of these 27 vacancies did arise within the one year period set by this Court but the State Government delayed action to allow the year to run out and to free itself from the purview of the direction.
[192C, D F] The petitioner, therefore, became entitled to be consid ered for appointment to the post of Assistant District Attorney and given appointment in accordance with the rules.
The respondents would accordingly appoint the petitioner against one of the posts subject to physical fitness.
[192G]
|
: Civil Appeal No. 38 of 1960.
Appeal by special leave from the judgment and order dated October 6, 1958, of the Punjab High Court in Letters Patent Appeal No. 52 of 1954, arising out of the judgment and order dated June 15, 1954, of the said High Court in First Appeal from Order No. 149 of 1953.
Y. Kumar, for the appellant.
Bakshi Man Singh and Sardar Singh, for the respondents.
April 20.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the judgment of the Punjab High Court.
The brief facts necessary for present purposes are these.
The appellant had executed two usufructuary mortgages with respect to two properties situate in Ferozepore city in favour of the respondents in 1946.
She also took both properties on lease on the same date.
An application was filed by the respondents under section 13 of the Displaced Persons (Debts Adjustment) Act, No. LXX of 1951 (hereinafter called the Act), for recovery of the principal sum due as well as the rent which was said to be in arrears.
The application was resisted by the appellant on various grounds, one of which was that no such application lay as the liability was not a debt under the Act.
The tribunal negatived the contention of the appellant and passed a preliminary decree for sale.
Six months ' time was allowed to the appellant to pay the decretal amount, failing which the respondents were at liberty to get a final decree prepared and bring the properties to sale.
The appellant went in appeal to the High Court but the appeal was dismissed.
Then there was a Letters Patent Appeal, which was also dismissed.
The appel lant then applied for and was granted special leave by this Court, and that is how the matter has come up before us.
The only point for our consideration is whether the liability created under a mortgage is a debt within 572 the meaning of section 2(6) of the Act.
The relevant part of that provision runs as follows: " 'Debt ' means any pecuniary liability, whether payable presently or in future, or under a decree or order of civil or revenue court or otherwise, or whether ascertained or to be ascertained, which (a) in the case of a displaced person who has left or been displaced from his place of residence in any area now forming part of West Pakistan, was incurred before he came to reside in any area, now forming part of India; (b)in the case of a displaced person who, before and after the 15th day of August, 1947, has been residing in any area now forming part of India, was incurred before the said date on the security of any immovable property situate in the territories now forming part of West Pakistan : Provided that where any such liability was incurred on the security of immovable properties situate both in India and in West Pakistan, the liability shall be so apportioned between the said properties that the liability in relation to each of the said properties bears the same proportion to the total amount of the debts as the value of each of the properties as at the date of the transaction bears to the total value of the properties furnished as security, and the liability, for the purposes of this clause, shall be the liability which is relatable to the property in West Pakistan; (c)is due to a displaced person from any other person (whether a displaced person or not) ordinarily residing in the territories to which this Act extends; x x x x The contention on behalf of the appellant is that the liability under a mortgage is not a pecuniary liability and therefore section 2(6) will not apply to a mortgage debt.
It is further urged that the scheme of the Act shows that mortgages in relation to properties situate in what is now India are not covered by the Act at all.
573 Debt is defined in section 2(6) as meaning any pecuniary liability and has been restricted by the three subclauses in the sub section with reference to the person who might be owing the debt or to whom the debt might be owed.
Sub cls.
(a) and (b) refer to the debts owed by a displaced person as defined in the Act while sub cl.
(c) refers to a debt due to a displaced person.
Sub cl.
(c) has therefore to be taken independently of sub cls.
(a) and (b), for it refers to a creditor who is a displaced person while the other two sub clauses refer to a debtor who is a displaced person.
Under subcl.
(c) a displaced person who is a creditor can recover the debt due to him from any other person, whether a displaced person or not, who is residing in the territories to which the Act extends.
The main contention of the appellant in this connection is that a mortgage debt is not a pecuniary liability and therefore does not fall within the definition of debt at all.
We are of opinion that there is no force in this contention.
The words " pecuniary liability " will cover any liability which is of a monetary nature.
Now the definition of a mortgage in section 58 of the Transfer of Property Act, No. 4 of 1882, shows that though it is the transfer of an interest in specific immovable property, the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.
The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability.
It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability ; none the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage.
Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be covered by the definition of the word "debt" in section 2(6).
We may in this connection refer to the Displaced Persons (Institution of Suits) Act, No. XLVII of 1948, which has been practically repealed by the 75 574 Act.
In that law, suits relating to immovable property were specially excepted under section 4, but there is no such provision in the Act.
Again section 6 of the Displaced Persons (Legal Proceedings) Act, No. XXV of 1949, which has also been repealed by the Act mentions decrees or orders for payment of money while in section 15 of the Act which deals with the same matter those words are omitted and the words " proceedings in respect of any debt " are used instead.
There can be no doubt in consequence that the Act is a comprehensive law dealing with all kinds of pecuniary liability.
We are therefore of opinion that section 2(6) clearly includes a mortgage debt and under sub el.
(c) thereof a displaced person to whom such a debt is due from any other person, whether a displaced person or not, ordinarily residing in the territories to which the Act extends can take the benefit of this Act.
Let us now see whether there is anything in the scheme of the Act which in any way militates against the plain words of section 2(6).
Learned counsel for the appellant in the first place refers to sub el.
(b) of section 2 (6) in this connection and points out that that subclause specifically deals with mortgage debts secured on any immovable property situate in the territories forming part of West Pakistan.
It is urged that there was a specific provision with respect to mortgage debts in relation to immovable properties in West Pakistan and that if it were intended that mortgage of immovable properties situate in what is now India would also be dealt with under the Act there would have been a similar specific provision in the Act.
Further it is pointed out that the proviso to subel.
(b) to section 2(6) provides for apportioning the mortgage debt in cases where the property on which the debt is secured is both in West Pakistan and in India and restricts the application of sub cl.
(b) only to that part of the debt which was secured on the property in West Pakistan and thus excludes from the operation of sub el.
(b) that part of the debt which is secured on property in India.
That is undoubtedly so.
The reason however for this special provision is to be found in the later provision contained in section 16 by which a charge was created on compensation to be given to a 575 displaced person with respect to the mortgage debt secured on immovable property in Pakistan or in the alternative a charge was created on property given in exchange for the property in Pakistan on which the debt was charged.
The special provision there ,.
fore in sub cl.
(b) of section 2(6) would not in these circumstances cut down the plain meaning of the words used in sub cl.
(c) or restrict the wide words " pecuniary liability " to liability other than that secured by a mortgage.
Incidentally we may mention that subcl.
(b) itself shows that pecuniary liability includes a mortgage debt, for it shows that any liability which was incurred on the security of any immovable property situate in West Pakistan would be a debt within the meaning of section 2 (6) and therefore a pecuniary liability.
It is next urged that when the legislature excepted the property in India which was encumbered from being dealt with under sub el.
(b) so far as displaced debtors were concerned, there is no reason why it should allow the displaced creditors to proceed under the Act with respect to mortgage debts.
This argument, however, overlooks the provision in sub cl.
(a) under which a displaced debtor can take the benefit of the Act, once it is held that the words " pecuniary liability " also include mortgage debt.
As we have said before sub cl.
(b) was dealing with a special situation which was worked out in section 16 of the Act and the general right of a displaced debtor to take advantage of the Act is to be found in sub cl.
(a) and that subclause will cover a mortgage debt as it is a pecuniary liability.
Reliance was then placed on section 16 (5), which gives a right to the creditor to elect to be treated as an unsecured creditor in relation to the debt, in which case the provisions of the Act would apply accordingly.
It was urged that this sub section requires that a creditor must make an election before he can take the benefit of this Act.
We are of opinion that this argument has no force, for sub section
(5) of section 16 only deals with a situation which arises where the mortgage, charge or lien was on immovable property situate in West Pakistan.
It does not deal at all with cases 576 where the mortgage, charge or lien is on immovable property situate outside West Pakistan.
Reference was then made to section 17 of the Act.
It deals with debts secured on movable properties.
That section is again concerned with displaced debtors and provides how equities will be worked out between a displaced debtor and his creditor with respect to debts secured on movable property.
We see nothing in this section which can cut down the amplitude of the words used in section 2 (6)(c).
Reference was then made to section 21 which provides for scaling down debts.
That is however a general provision dealing with debts of all kinds and there is nothing in that section which shows that the word " debt " as defined in section 2(6) refers only to claims for money and does not include a mortgage debt.
Thus we see nothing in any provision of the Act or in its scheme which would cut down the meaning we have given to the words " pecuniary liability " as used in section 2 (6) read with sub cl.
(c) thereof.
It was also urged that if mortgage debts on property situate in India were covered by the Act, there is no machinery (like section 16) for enforcement of the creditors ' rights in respect thereof.
This is not correct.
Section 10 provides for the claim of a displaced creditor against a displaced debtor and section 13 provides for the claim of a displaced creditor against any other person who is not a displaced debtor.
Section 11 then provides how an application under section 10 A ill be dealt with and under sub section
(2) thereof a decree can be passed under certain circumstances against the displaced debtor.
Similarly under section 14 (2) a tribunal can pass such decree in relation to an application under section 13 as it thinks fit.
These decrees are executable under section 28 of the Act.
Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in section 16, which was dealing with the special situation of properties under ,mortgage situate in West Pakistan.
We may also refer to section 3 of the Act which lays down that the provisions of the Act and of the Rules 577 and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws.
The last contention on behalf of the appellant is that if section 2 (6) (c) empowers a displaced creditor to make an application under section 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act.
Section 13 empowers a displaced person claiming a debt from any other person who is not a displaced person to apply within one year of the coming into force of the Act in any local area to the tribunal having jurisdiction in the matter.
The provision is obviously enacted to give relief for a short period only.
Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions contained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder.
But assuming that in spite of this provision, 0.
XXXIV, r. 1 of the Code of Civil Procedure will not apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by 0.
XXXIV, r. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act.
The Explanation to 0.
XXXIV, r. 1, shows that a prior mortgagee need not be made a party to a suit for sale by a puisne mortgagee.
So far therefore as a prior mortgagee is con cerned, his rights will not be affected by the decree passed under section 13 of the Act, just as his rights are not affected by the decree passed under 0.
XXXIV.
So far as mortgagees subsequent to the displaced creditor who applies under section 13 are concerned, their interests will also not be jeopardized by the decree which may be passed under section 13.
Even under 0.
XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was not joined as a party does not affect his rights and the 578 proceedings in such a suit are not binding on him so as to affect his rights under the second mortgage.
He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was not a party.
Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would not be affected by a decree passed on an application under section 13 and there is no reason therefore to cut down the plain meaning of the words used in section 2 (6) (c) on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees.
There is therefore no force in this appeal and it is hereby dismissed with costs.
Appeal dismissed.
| In 1900 the then proprietor of the Dhalbhum estate who was the predecessor in interest of the first respondent granted a permanent lease of the mining rights for certain metals and minerals in the estate to one Prince Mohammad Bakhtyar Shah.
During the lifetime of the said proprietor the management of the estate was taken over by the Deputy Commission of Singhbhum under the Chotanagpur Encumbered Estates Act and after the former 's death the manager of the Estate granted to the Official Receiver to the estate of Prince Mohammad Bakhtyar Shah another lease in respect of mining rights in the same area in 1919.
The first respondent commenced the present litigation for the purpose of recovering rents and royalties on the basis of the second lease from the heirs and representatives of the estate of Prince Mohammad Bakhtyar Shah and also from the appellant as the Receiver to that Estate.
The decision of the case depended upon the construction of the two leases of 1900 and 1919 and the Trial Court and the High Court decided the case in favour of the plaintiff respondents.
On appeal by the contesting defendant appellant on a certificate granted by the High Court : Held, that the intention of the parties to a dispositive document must be gathered from the words used by the parties themselves and they must be presumed to have used the words in their strict grammatical sense.
If the statements made in the earlier part of the document were irreconcilable with those made in the later part, the earlier part must prevail.
In cases of ambiguity the court should look at all the parts of the document to ascertain the intention of the parties.
If ambiguity still remains, the Court should interpret the document strictly against the grantor and in favour of the grantee.
Under Exp.
11 of section 19 of the Limitation Act the words duly authorised " would include duly authorised either by the action of the party indebted or by force of law or order of the court.
Annapagonda vs Sangadiappa, , Rashbehari vs Anand Ram, , Ramcharan Das vs Gaya Prasad, 30 All. 422, Lakshumanan vs Sadayappa, A.I.R. 1919 Mad. 816 and Thankamma vs Kunhamma, A.I.R. 1919 Mad. 370, approved.
605 Currimbhai vs Ahmedali, and Lakshmanan Chetty vs Sadayappa Chetty, 35 M.L.J. 571, considered.
|
vil Appeal No. 1945 and 1946 of 1989.
From the Judgment and Order dated 11.12.1984 of the Punjab and Haryana High Court in C.R. No. 1794 and 1795 of 1985.
Dr. L.M. Singhvi and Y.P. Rao for the Appellant.
G.L. Sanghi, J.P. Gupta and S.K. Agarwal for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
882 This appeal arises from the decision of the High Court of Punjab & Haryana, dated 11th December, 1984 dismissing the Civil Revision filed by the appellant.
It appears that there was a contract entered into by the parties on or about 15th May, 1979 which provided that the appellant would give to the respondent paddy to convert these into rice after lifting paddy from the godown of the appellant.
There was an agreement between ' the parties for shelling of paddy into rice, after lifting the paddy from the godown of the appel lant, at the rate of 70% of the paddy.
The shelling charge was Rs.2.20 per quintal.
The learned Subordinate Judge, First Class, directed on or about 17th March, 1980 appoint ment of an arbitrator on an application by the respondent.
On 22nd January, 1982, the arbitrator gave his award.
The arbitrator did not allow the claims of the appellant as claimed as per the terms of the agreement.
The arbitrator allowed certain claims.
It is necessary, in view of the contentions that have been raised, to refer to the award of the arbitrator.
After setting out the history the arbitrator dealt with the various contentions.
It is not necessary to refer to all the contentions and points urged before the arbitrator and upon which he has made his award.
It is sufficient if the relevant portions are dealt with.
The arbitrator, inter alia, dealt with a claim of Rs. 55,060.29 which had claimed as penalty at Rs.2 per qtl.
for not lift ing the balance of the paddy weighing 2765 3093 mts.
The arbitrator noted that he had held that there was justifica tion for the millers, millers being respondent herein, not to lift the paddy.
Assuming, however, the arbitrator noted, that if it was decided that the millers were at fault in not lifting this paddy, the arbitrator expressed the opinion that the appellant could not recover the amount claimed by way of penalty.
He expressed the view that in order to enable the appellant to claim the amount, it had to be shown that the actual losses were suffered by the Corporation.
Otherwise, it could not be claimed as pre estimated damages.
Otherwise, it would only be penalty which could not be recovered.
No evidence had been led for how many days the bags of the paddy remained in the godowns of the Corpora tion, the arbitrator noted, and what losses were incurred for getting it shelled from other quarters.
The arbitrator referred to the affidavit of one Mr. M.S. Rawat, Asstt.
Manager, that the Corporation had to get the unlifted paddy shelled by transporting to other centre as well as getting the same shelled at heavy additional expenditure.
The arbi trator noted that there was not an iota of evidence on that point.
So no actual losses stated to have been suffered by the Corporation and no proof thereof was there.
The arbitra tor further noted that an amount by way of penalty could be permitted if some losses were proved.
He, accordingly, dismissed the claim of the appellant for Rs. 55,090.19.
883 The next claim dealt with by the arbitrator was the claim of Rs.3,23,856.08 claimed by the Corporation as the cost of non delivery of 137 39549 tonnes of rice at the rate of Rs. 165 per qtl.
of paddy.
The claim of the appellant was based on the basis that the appellant had converted the undelivered rice into paddy by multiplying it with 100/70 and it came to 123,87.11 tonnes.
The arbitrator dealt with this question as follows: "At the rate of Rs. 165 per qtl.
its price works at Rs.3,23,856.08.
According to provi sions of clause g(i) of the Contract, in the event of failure to supply rice within pre scribed specification, the millers are liable to pay to the Corporation for the quantities of rice short supplied at the penal rate of 11/2 times the economic cost of the concerned variety of the paddy equivalent to the short ages.
In the contract no definition of 'Eco nomic Cost ' is furnished nor is the expression any where defined in any law.
However, Shri Pritam Singh in the statement attached to the affidavit work it out at Rs. 110 per qtl.
The procurement price of paddy is Rs.85 per qtl.
as shown therein.
He has added to it market fee and other charges including cost of gunny Rs.2 and interest charges at Re. 1.
Under the above clause of the contract, the Corporation has added 50% penalty and thus has claimed the price at Rs. 165 per qtl.
I do not think that the Corporation is enti tled to such a fantastic rate particularly when the expression 'economic rate ' has not been defined.
Even if the statement of Shri Pritam Singh is accepted the maximum price of the rice at that time should be Rs. 100 per qtl.
exclusive of gunny bag and interest charges to which in my opinion the Corporation is not entitled.
The market rate did not exceed that amount at that time.
So the calcu lated at this rate the price of the undeliv ered rice will come to Rs.1,96,277.00.
to which the Corporation is entitled.
I may add here that the above amount has been allowed to the Corporation besides from the evidence on the record I believe that the rice was short delivered.
When the paddy had been accepted by the millers unconditionally and without any reservation, they were bound to give to the Corporation 70% of the yield.
As they did not do it, so they are liable to pay the price of the undelivered rice.
884 I have already stated above that the rice after shelling to be , delivered to the Corpo ration under clause g(i)of the contract had to conform to the specification laid down by the Punjab Government under the Punjab Rice Pro curement Price Control Order, 1968 issued on the 22nd October, 1968, as amended from time to time.
The Corporation states that the rice accepted by them was done subject to the quality rice which was permissible under clause g(ii) of the contract.
This has been duly proved from the evidence placed on the record by the Corporation.
Even Shri Anil Kumar, a partner of the millers firm admitted that they received an analysis report in respect of the rice which was accepted by the Corporation to continue that the Corporation was mentioned and that they did not appeal against the cut, though there was a provision in the said order to do so.
It, therefore, means that the quality cut was admitted to have been correctly assessed under the said Punjab Rice Order and to that the millers submitted.
This item is, therefore, allowed.
" The respondent filed an application under section 14 of the Arbitration Act, 1948 (hereinafter referred to as 'the Act ') for filing of the award and prayed for making the award the rule of the court.
The appellant on 25th May, 1982 filed objections under sections 30 and 33 of the Act.
The learned Subordinate Judge, First ClasS, on 2nd December, 1982 found that the award was liable to be set aside and modified the award and passed a decree in favour of the appellant for the amount.
On 2nd March, 1984, the Additional District Judge allowed the appeal by respondent and reversed the Subordinate Judge 's order.
Aggrieved thereby, the appellant went in revision before the High Court.
The High Court on 11th December, 1984 dis missed the revision petition.
Aggrieved thereby, the appel lant has come up before this Court.
It is, therefore, neces sary to decide whether the High Court was right.
As mentioned hereinbefore, the learned Subordinate Judge had modified the award and passed a decree in favour of the appellant for the amount.
The learned Additional District Judge, however, allowed the appeal of the respondent and reversed the decision of the learned Subordinate Judge.
The High Court did not interfere with that decision because the High Court did not find any ground to interfere.
The 885 question therefore is, whether the learned Additional Dis trict Judge in the first appeal was right in holding that the award was not liable to be corrected in the manner done by the learned Subordinate Judge.
The jurisdiction to inter fere by the Court of law of an award made by the arbitrator chosen by the parties is circumscribed.
In India, there is a long history of arbitration.
Arbitration is a mode of set tlement of disputes evolved by the society for adjudication and settlement of the disputes and the differences between the parties apart from the courts of law.
Arbitration has a tradition; it has a purpose.
Arbitration, that is a refer ence of any particular dispute by consent of the parties to one or more persons chosen by the parties with or without an umpire and an award enforceable by the sovereign power were generally unknown to ancient India.
Hindus recognised deci sions of Panchayats or bodies consisting of wealthy, influ ential and elderly men of the Community and entrusted them with the power of management of their religions and social functions.
The sanction against disobedience to their deci sion was excommunication, or ostracism and exclusion from all religions and social functions of the community.
An agreement to abide by the decision of a Panchayat and its decision with regard to the line of boundary was held not to be conclusive, since a reference to arbitration and award properly so called did not exist.
See the observations in Mukkudduns of Kimkunwady vs Inamdar Brahmins of Soorpai, See also Bachawat 's Law of Arbitration at page 1.
When power came to the East India Company, they framed Regulations in exercise of the power vested in them by the British Government Some of these Regulations were touching arbitration.
Bachawat gives description of the evolution of the .
Therefore, arbitration as a mode for settlement of disputes between the parties, has a tradi tion in India.
It has a social purpose to fulfil today.
It has great urgency today when there has been an explosion of litigations in the courts of law established by the sover eign power.
New rights created, or awareness of these rights, the erosion of faith in the intrinsic sense of fairness of men, intolerant and uncompromising attitudes are all the factors which block our courts.
The courts are full of litigations, which are pending for long time.
Therefore, it should be the endeavour of those who are interested in the administration of justice to help settlement by arbitra tion, if possible.
It has also a social efficacy being the decision by the consent of the parties.
It has greater scope of acceptance today when there is a certain erosion of faith in view of the failure to appreciating the functions of the courts of law.
It has also the advantage of not only quick ness of decision but of simplicity of procedure.
But in proceedings of arbitra 886 lion there must be adherence to justice, equity, law and fair play in actions.
However, the proceedings of arbitra tion must adhere to the principles of natural justice and must be in consonance with such practice and procedure which will lead to a proper resolution of the dispute and create confidence of the people for whose benefit these processes are resorted to.
It is, therefore, the function of courts of law to oversee that the arbitrators act within the norms of justice.
Once they do so and the award is clear, just and fair, the courts should, as far as possible, give effect to the award of the parties and make the parties compel to adhere to and obey the decision of their chosen adjudicator.
It is in this perspective that one should view the scope and limit of correction by the court of an award made by the arbitrator.
We should make the law of arbitration simple, less technical and more responsible to the actual realities of the situation, but must be responsive to the cannons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating a sense that justice appears to have been done.
Sections 30 and 33 of the Act provide for the grounds on which an award of the arbitrator can be set aside.
These were mainly, until recent changes made by statutory laws in England, in consonance with the English principles of Common Law as adopted in India.
So far as the material of the present purpose is concerned, an award of the arbitrator can only be interfered with or set aside or modified within the four corners of the procedure provided by the Act.
It is necessary to find whether the arbitrator has misconducted himself or the proceedings legally in the sense whether the arbitrator has gone contrary to the terms of reference between the parties or whether the arbitrator has committed any error of law apparent on the face of the award.
It is necessary to empha sise that these are grounds for setting aside the award but these are separate and distinct grounds.
Halsbury 's Laws of England, Vol.
2 4th Edn., para 623 reiterates that an arbi trator 's award may be set aside for error of law appearing on the face of it.
Though this jurisdiction is not to be lightly exercised.
The award can also be set aside if, inter alia, the arbitrator has misconducted himself or the pro ceedings.
It is difficult to give an exhaustive definition what may amount to a misconduct on the part of the arbitra tor.
This is discussed in Halsbury 's Laws of England (supra).
It is not misconduct on the part of an arbitrator to come to an erroneous decision, whether his error is one of fact or law, and whether or not his findings of fact are supported by evidence.
See the observations of Russell on Arbitration, 20th Edn., page 422.
In the instant case, the arbitrator has chosen to make a speaking 887 award, that is to say, he has given reasons for his conclu sion.
Whether he is obliged to give such reasons or not is another matter but since the arbitrator has chosen to give the reasons, unless it is demonstrated to this Court that such reasons are erroneous as such as propositions of law or a view which the arbitrator has taken is a view which it could not possibly be sustained on any view of the matter, then the challenge to the award of the arbitrator cannot be sustained.
As has been emphasised in M/s Sudarsan Trading Co. vs The Government of Kerala & Anr., [1989] 1 Jt.
Today SC 339 that an award could be set aside if the arbitrator has misconducted himself or the proceedings or has proceeded beyond jurisdiction.
It could also be set aside where there are errors apparent on the face of the award.
But these are separate and distinct grounds.
In case of errors apparent on the face of the award, it can only be set aside if in the award there is any proposition of law which is apparent on the face of the award, namely, in the award itself or any document incorporated in the award.
See the observations of the Judicial Committee in Champsey Bhara & Co. vs Jivraj Balloo Spinning & Weaving Co. Ltd., L 1922 IA 324.
Dr. L.M. Singhvi, learned counsel for the appellant, urged before us that the arbitrator was wrong in not award ing 50% of the added penalty as claimed by the appellant, as mentioned hereinabove.
The appellant had claimed the price of Rs. 165 per qtl.
The arbitrator was of the view that the expression 'Economic Rate ' had not been defined.
It is true that the expression 'Economic Rate ' has not been used, but the expression 'Economic Cost ' has been used.
The arbitrator has noted that the market rate did not exceed that amount at the time.
The amount of Rs. 100 per qtl.
is mentioned of such a rate as the arbitrator had noted, could only be pre estimated damages but this was not so according to the arbitrator.
The arbitrator had construed the effect of clause g(i) of the contract as mentioned hereinbefore.
It cannot be said that such a construction is a construction which is not conceivable or possible.
If that is the position assuming even for the argument that there was some mistake in the construction, such a mistake is not amenable to be connected in respect of the award by the court.
This was a fair order after considering all the records.
The conclusion arrived at by the arbitrator is a plausible conclusion.
The court has, in our opinion, no jurisdiction to interfere or modify the award in the manner sought for by the appellant and in the manner done by the learned Subordinate Judge in the first instance in this case.
In that view of the matter, the learned Additional District Judge was justified in correcting the 888 order of the learned Subordinate Judge and the High Court was also justified in not interfering with the order of the Additional District Judge.
The award on the aspects can vassed before us by Dr. L.M. Singhvi is a plausible con struction of clause g(i) of the contract.
It cannot, in our opinion, be interfered with either on the ground that there was error apparent on the face of the award or on the ground that the arbitrator has misconducted himself in not giving the effect to the penal rate as contemplated under clause g(i) of the contract referred to hereinbefore in the award.
Dr. Singhvi sought to urge that as per the terms of the contract the arbitrator was obliged to award penal rate in terms of clause g(i) of the contract.
The arbitrator has apparently not done so.
He has given reason why he has not done so.
It was submitted that he was wrong in not doing so.
We do not agree.
The arbitrator has discussed the effect of clause g(i).
He has noted that unless there was evidence about which incidentally there was none, this amount could not be treated as a pre estimate of damage.
If that be so then it was penalty.
It was not recoverable.
Reasons may not be apparent, latent was there.
Dr. Singhvi 's objection therefore cannot be accepted.
Dr. Singhvi drew our attention to the observations of this Court in M/s Sudersan Trading Co., (supra) at page 352 of the report where it was stated that if it was apparent from the award that a legal proposition which formed its basis was erroneous, the award was liable to be set aside.
Dr. Singhvi sought to urge that when the arbitrator observed that "Corporation is not entitled to recover such a claim particularly when the 'Economic Rate ' has not been defined", this, according to the statement of Dr. Singhvi, the arbi trator was mistaking the law, such a mistake of law is apparent on the face if it.
It has to be borne in mind, however, that wrong statement or conclusion of law, assuming even that it was a wrong statement of law, was not wrong statement of the proposition of law which was the basis for decision in this award.
Error of law as such is not to be presumed, if there is legal proposition which is the basis of the award and which is erroneous as observed in Champsey Bhara & Co, (supra), then only the award can be set aside.
There was no proposition of law; there was a legal deduction of law arrived at to say that the provisions of clause g(i) of the contract would be penal rate and such penal rate cannot be sustainable without evidence of the damages suf fered to that extent.
We are of the opinion that the arbi trator had taken a view which is plausible view.
Beyond this, the court has nothing to examine.
It is not necessary for a court to examine the merits of the award with refer ence to the materials produced before the arbitrator.
The Court cannot sit in appeal over the 889 views of the arbitrator by re examining and re assessing the materials.
See the observations of this Court in Puri Con struction Pvt. Ltd. vs Union of India, In the aforesaid view of the matter, it appears to us that the learned Additional District Judge was right in the view it took and the High Court, therefore, was justified in dismissing the revision.
The appeal, therefore, fails and is accordingly dismissed.
No order as to costs.
Special leave granted.
In view of the fact that the facts of this appeal are more or less identical to the Appeal arising out of S.L.P. (C) No. 3392 of 1985, this appeal is also dismissed.
No order as to costs.
Y.L. Appeals dis missed.
| The Respondent entered into a contract with the appel lant Food Corporation of India on or about May 1979 whereun der the appellantCorporation was to give to the Respondent Paddy for being shelled/ converted into rice at the rate of 70% of the Paddy.
The Paddy was to be lifted from the go downs of the appellant.
The shelling charge was fixed at Rs.2/20 p. per quintal.
Some dispute having arisen between the parties, the Respondent moved an application before the Subordinate Judge for appointment of an arbitrator and the Sub Judge appointed the arbitrator who gave his award on 22nd January 1982.
In the award the arbitrator did not allow some of the claims made by the appellant, in particular, a claim of Rs.55,060/29 p which was claimed as a penalty Rs.2 per quintal for not lifting the balance of Paddy.
The arbitrator in disallowing the claim on that count, took the view that the appellant has to prove the actual losses suffered by it which the appellant failed to prove.
Another claim not allowed by the arbitrator related to Rs.3,23,856/08.
p. in respect of the cost of non delivery of 137 39548 tonnes of rice @ Rs. 165 per quintal.
The Respondent made an application section 14 of the Arbi tration Act, 1940 to make the award a rule of the Court.
The appellant filed the objections u/s 30 and 33 of the Act.
The Subordinate Judge, First Class, on 2nd December, 1982, found that the award was liable to be set aside and accordingly modified the award and passed a decree in favour of the appellant for the amount.
On 2nd March, 1984, the Addl.
Distt.
Judge, on appeal by the Respondent, reversed the order passed by the Subordinate Judge.
He held that the award was not liable to be corrected/interfered with in the manner done by the Sub Judge.
Aggrieved by the said order the appellant went in revision to the High Court.
The High Court on 11.12.84 dismissed the revision petition.
Hence this appeal by the appellant Corporation.
881 Dismissing the appeal, this Court, HELD: That the arbitrator has chosen to make a speaking award in the instant case, that is he has given reasons for his conclusions.
Since the arbitrator has chosen to give reasons, unless it is demonstrated to this Court that such reasons are erroneous as such as propositions of law or a view which the arbitrator has taken is a view which it could not possibly be sustained in any view of the matter, then the challenge to the award of the arbitrator cannot be sustained.
[886H; 887A B] Even assuming that there was some mistake, such a mis take is not amenable to be corrected in respect of the award by the Court.
This was a fair order passed after considering all the records.
The conclusion arrived at by the arbitrator is a plausible conclusion.
The Court has no jurisdiction to interfere or modify the award in the manner sought for by the appellant.
[887G H] The Addl.
Distt.
Judge was justified in correcting the order of the Subordinate Judge and the High Court was also justified in not interfering with the order of the Addl.
Distt.
Judge.
[887H; 888A] Mukkudduns of Kimkunwady vs Inamdar Brahmins of Soorpai, ; M/s. Sudarsan Trading Co. vs The Government of Kerala & Anr., [1989] 1 Jt.
Today SC 339; Champsey Bhara & Co. vs Jivraj Balloo Spinning & Weaving Co. Ltd., L 1922 IA 324, followed.
Puri Construction Pvt. Ltd. vs Union of India, , referred to.
|
Appeals Nos. 2093 and 2084 of 1970.
Appeals from the judgment and order dated January 28, 1964 of the Calcutta High Court in Income tax Reference No. 104 of 1960.
B. P. Maheshwari, for the appellant (in both the appeals).
S.T. Desai, P. L. Juneja and R. N. Sachthey, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Khanna,J.
This judgment would dispose of two Civil Appeal.s Nos. 2083 and 2084 of 1970 which have been filed on certificate 972 granted by the Calcutta High Court and are directed against the Judgment of that Court whereby it answered the questions referred to the Court under Section 66(1) of the, Indian Income tax Act, 1922 (hereinafter referred to as the Act) for two assessment years against the assessee appellant and in favour of the respondent.
The assessee is a Limited Company and the matter relates to the assessment years 1956 57 and 1957 58, the corresponding accounting years for which ended on June 30, 1955 and June 30, 1956 respectively.
The appellant Company was appointed as the Managing Agent of Shree Ramesh Cotton Mills Ltd., Morvi (hereinafter referred to as the managed company), as per agreement dated 30 12 1946.
The managed company was a 100% subsidiary of the appellant company.
Under the terms of the agreement, the appellant company was entitled to receive a fixed office allowance of Rs. 1,000/ per mensem plus a commission at the rate of 121/2% of the net profits, an additional commission of 1 % on all purchases of cotton and an equal amount on all sales of cloth and yarn.
In the relevant years, the managed company suffered losses and congruently the commission payable at 121/2% of the net profits was nil but the commission on purchase of cotton at the rate of 1 1/2% and on sales of cloth and yarn at the same rate, aggregated to Rs. 38,719/ for the assessment year 1956 57 and Rs. 1,963/ for the following year.
Besides these amounts, the appellant was entitled to Rs. 12,000/ per annum for each of the two years as fixed office allowance.
The total amounts which the appellant was entitled to receive from the managed company were Rs. 50,719/ and Rs. 13,963/ for the two years.
The managed company 's accounting year closed on the 30th day of December and that of the appellant company on the 30th day of June every year.
Clause 2(e) of the Managing Agency Agreement dated 30th ember 1946 contained the following term as to when the commission would be due and payable " (e) The said commission shall be due to the Agents yearly on the thirty first day of December or any other date on which the Company 's yearly account close in each and every year during the continuance of this Agreement and shall be payable and be paid immediate after annual accounts of the said Company has been passed by the Board of Directors and Auditors of the Company and by the company in, General Meeting".
According to the above clause, the commission was due on the 31st day of December every year and it was payable imme diately after the annual accounts of the managed company had 973 been passed in the General Meeting.
The Annual General Meetings of the managed company were held to adopt the accounts on November, 24, 1955 and July 21, 1956 respectively with regard to the assessment years in question.
The amounts of commission in terms of the above clause were "due" on 31st December, 1954 and 31st December, 1955 and were "payable " immediately after the 24th of November, 1955 and 21st of July, 1956 respectively.
The appellant company relinquished the managing agency commission for the assessment year 1956 57 as per resolution dated 4th of April, 1955 of the Board of Directors and for the following year as per resolution dated 19th June, 1956.
The amounts of the commission were thus relinquished after they had become "due" but before they were "payable" in terms of clause 2(e) of the agreement.
On behalf of the appellant, it was stated that the managed company had been suffering heavy losses in the past years and, therefore, the appellant did not consider it proper to charge any commission or the fixed office, allowance and had consequently relinquished the same.
The Income tax Officer included the sums of Rs. 50,719/ and Rs. 13,963/ in the total income of the appellant for the two assessment years in question.
The Income Tax Officer took the view that in so far as the fixed office allowance was concerned, it had been given to the appellant to enable it to recoupe the expenses incurred on behalf of the managed company and the relinquishment was, therefore made ex gratia.
As regards the commission, the Income tax officer held that it had become due to the appellant at the end of the accounting year of the managed company, and if the commission had been foregone after it had become due, it was taxable on accrual basis.
The Appellate Assistant Commissioner and the Income tax Appellate Tribunal affirmed the order of the Income tax Officer.
According to the Tribunal, the commission became due to the appellant yearly on the last day of the accounting year of the managed company, though the actual payment was deferred to a later date.
Postponement of the actual payment after the income had accrued was held to be inconsequential.
Likewise, the relinquishment of the income after it had become due in the opinion of the Tribunal, was inconsequential.
Claim was ten made by the appellant that the amount relinquished should be treated as a permissible expenditure under section 10(2) (xv) of the Act.
The above claim was rejected and it was observed that the total loss carried over at the end of year 1955 of the managed company was Rs. 14,95,221/ .
As a result of foregoing the amounts of the managing agency commission, according to the Tribunal, the financial position of the managed company did not 974 become stronger while that of the appellant company became weaker.
The relinquishment was consequently held to be not for the benefit of the appellant.
At the instance of the appellant, the Tribunal referred the following two questions to the High Court : " (1) Whether on the facts and in the circumstances of the case, the sums of Rs. 50,719/ and Rs. 13,963/foregone by the assessee by its Directors ' resolution dated 4 4 1955 and 19 6 1956 respectively, were liable to be included in its total income for the accounting years ending 30 6 1955 and 30 6 1956 ?" "(2) If the answer to question No. 1 be in the affirmative, whether the assessee is entitled to claim an allowance of an equivalent amount as expenditure under the provisions of Section 10 (2) (xv) of the Indian Income Tax Act ?" The High Court agreed with the view taken by the Tribunal.
It was observed that the accrual of income was complete within the accounting year of the managed company and as no relinquishment had been done before the amount became due, the case strictly came within the ambit of section 4 (1) (b) (i) of the Act. 'no relinquishment, it was further observed, was a unilateral act of the appellant.
As regards the second question, the High Court found that the relinquishment had not been made for the purpose of facilitating the legitimate commercial undertaking or by way of commercial expediency.
The appellant 's case was thus held to be not covered by section 10(2) (xv) of the Act, Mr. Maheshwari has assailed the findings of the High Court.
Regarding the first question, the learned counsel contends that as the amounts in question were never received by the appellant but were relinquished, there arose no tax liability for those amounts.
As regards the second question, Mr. Maheshwari submits that the relinquishment of the amounts should be construed as permissible expenditure under section 10(2) (xv) of the Act.
There is, in our opinion, no substance in any of the above contentions.
So far as the first question is concerned, we find that according to clause 2(e) of the Managing Agency Agreement reproduced above, the commission for the two years in question became due to the appellant on the 31st day of December, 1954 and 31st day of December, 1955.
The appellant also became entitled to receive fixed office allowance of Rs. 12,000/ for each of the two years.
It, therefore, can be said that the income of Rs. 50,719/ had accrued to the appellant on 31st December, 1954 and of 975 Rs. 13,973/ on 31st December, 1955.
The fact that the pay ment of the managing agency commission was deferred till after the accounts had been passed in the meetings of.
the managed company did not affect the accrual of the income of those amounts on December 31, 1954 and December 31, 1955 respectively.
According to Section 4 (1) (b) (i) of the Act, subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which if such person is resident in the taxable territories during such year accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year.
The dictionary meaning of the word "accrue" is "to come as an accession, increment, or produce : to fall to one by way of advantage : to fall due".
The income can thus be said to accrue when it becomes due.
The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income.
The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be payable immediately.
There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount.
The further fact that the amount of income is not subsequently received by the assessee would also not detract from or efface the accrual of the income, although the non receipt may, in appropriate cases, be a valid ground for claiming deductions.
The accrual of an income is not to be equated with the receipt of the income.
That the two, accrual and receipt of income, have different connotations is also clear from the language of Section 4 of the Act.
Clause (a) of sub section (1) of Section 4 of the Act deals with the receipt of income while the, accrual of income is dealt with in clause (b) of that sub section.
The appellant company admittedly was maintaining its account according to the mercantile system.
It is well known that the mercantile system of accounting differs substantially from the cash system of book keeping.
Under the cash system, it is only actual cash receipts and actual cash payments that are recorded as credits and debits; whereas under the mercantile system credit entries are made in respect of amounts due immediately they become legally due and before they are actually received; similarly, the expenditure items for which legal liability has been incurred are immediately debited even before the amounts in question are actually disbursed.
Where accounts are kept on mercantile basis, the profits or gains are credited though they are not actually realised, and the entries thus made really show nothing more than an accrual or arising of the said profits at the material time.
The same is the position 976 with regard to debits made.
[See Indermani Jatia V. Commis sioner of Income Tax, U.P. (1)] In the case of Commissioner of Income Tax, Bombay City I vs Messrs Shoorji Vallabhdas and Co.(2) Hidayatullah, J (as he then was) speaking for the Court observed,: "Income tax is a levy on income.
No doubt, the Income tax takes into account two points of time at which the liability to tax is attracted viz. the accrual of the income or its receipt; but the substance of the matter is the income.
If income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about a "hypothetical income", which does not materialise.
Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable.
Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though, an entry to that effect might, in certain circumstances, have been made in the books of account".
The assessee firm, who was the managing agent of two shipping companies in that case, gave up 75% of the managing agency commission with a view to get the managing agency transferred to two private companies.
It was held that this was not a case of a gift by the assessee to the managed companies of a portion of income which had already accrued, but an agreement to receive a lesser remuneration than what had been agreed upon.
In the present case, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company.
As such, the appellant could not escape the tax liability for those amounts.
Coming to the second question we find that the appellant could claim deduction of the amounts under section 10(2) (xv) of ' the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the appellant.
There is, however, nothing to show that the amounts were relinquished for the purpose of the appellant 's business.
The present is not a case wherein the amounts due to the assessee were given up on grounds of commercial expediency or for advancing the business interest of the assessee.
The conclusion of the learned Judges of the High Court in this respect, in our opinion, is well founded.
The result is that the appeals fail and ire dismissed but, in the circumstances, without costs.
Appeals dismissed.
| The appellant, a limited company, was managing agent of another company.
Under the terms of the agreement the appellant company was entitled to receive a fixed monthly sum as office allowance and commission at fixed rates on net profits and purchases and sales of cotton and yarn.
The managed company 's accounting year closed on the 30th day of December every year and that of the appellant company on the 30th day of June every year.
Under cl. 2(e) of the managing agency agreement the commission was due on the 31st day of December every year and it was payable immediately after the annual accounts of the managed company bad been passed in the General meeting.
The Annual General meetings of the managed company were held to adopt the accounts for the relevant accounting years on November 24, 1955 and July 21, 1956, The amounts of commission in terms of the cl.
2(e) were thus 'due ' on 31st December 1954 and 31st December 1955 and were 'payable ' immediately after 24th November 1955 and 21st July 1956 respectively.
Since the managed company had suffered losses in the preceding years the appellant relinquished the commission as well as the office allowance by resolutions of the Board of Directors dated April 4, 1955 and June 19.
On these dates the amounts of commission relinquished had become 'due ' but not 'payable '.
The Income tax Officer in making the assessments for the 1955 56 and 1956 57 did not make any allowance for the amounts relinquished and included them in the total income of the appellant.
According to the Income tax Officer the office allowance had been relinquished ex gratia and the commission had been relinquished after it had accrued.
The Appellate Assistant Commissioner and the Appellate Tribunal confirmed the order of the Income tax Officer.
In ,reference the High Court held : (i) that the accrual of income was complete within the accounting year of the managed company and as no relinquishment had been done before the amount became due, the case came within the ambit of section 4(1)(b)(i) of the Income tax Act, 1922, (ii) that the relinquishment had not been made for the purpose of facili tating the legitimate commercial undertaking or by way of commercial expediency and the case was not then fore covered by section 10(2)(xv).
In ;appeal to this Court, HELD : (i) According to s, 4(1) (b) (i) of the Act, subject to the provisions of this Act the total income of any previous year of any person includes all income profits and gains from whatever source derived which if such a person is resident in the taxable territories during 971 such year accrue or arise of the deemed to accrue or arise to him in the taxable territories that year.
The dictionary meaning of the word 'accrue ' is to come as an accession, increment, or produce; to fall to one by way of advantage; to fall due. ' The income can thus be said to accrue when it becomes due.
The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income.
The moment the income accrues, the assessee gets vested with the right to claim that amount, even though it may not be payable immediately.
There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount.
The further facts that the amount of income is not subsequently received by the assessee would also not detract front or efface the accrual of the income, although the non receipt may, in appropriate cases, be a valid ground for claiming deductions.
The accrual of an income is not to be equated with the receipt of the income.
That the two, accrual and receipt of income, have different connotations is also) clear from the language of section 4 of the Act.
Clause (a) of sub section '(1) of section 4 of the Act deals with the receipts of income while the accrual of income is dealt with in cl.
(b) of that sub section. [975 B E] In the present case the accounts of the appellant company were maintained on a mercantile basis.
Under this system the profits and gains are credited though not immediately realised, and the entries thus made really show nothing more than an accrual or arising of the said profits, at the material time.
Further, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company.
As such the appellant could not escape the tax liability for those amounts.
[975 G H; 976 E] Indermani Jatia V. C.I.T., U.P., and C.I.T., Bombay City I vs M/s. Shoorji Vallabhdas & Co., 46 I.T.R. 144, applied.
(ii) The appellant could claim deduction of the amounts under section 10(2)(xv) of the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the, appellant.
There was however nothing to show that the amounts were relinquished for the purpose of the appellant 's business or on grounds of commercial expediency.
The High Court therefore rightly rejected the claim under section 10 (2) (xv)[976 F G]
|
Appeal No.396 of 1957.
Appeal from the Judgment and Order dated the 21st February, 1956, of the Bombay High Court in Income tax Reference No. 32 of 1954.
, R. J. Kolah, J. B. Dadachanji and section N. Andley, for the appellants.
K. N. Rajagopal Sastri and D. Gupta, for the respondent.
May 5.
The Judgment of the Court was delivered by DAS, C. J.
This is an appeal brought on a certificate granted on September 19, 1956, by the High Court of Bombay under section 66(A)(2) of the Indian Income Tax Act (hereinafter referred to as " the said Act ") against its order dated February 21, 1956, in Income tax Reference No. 32 of 1954 answering in the negative two questions of law referred to it under section 66(1) of the said Act at the instance of the appellants.
The appellants are the trustees of a charity fund known as " The Charity Fund Founded by Sir Sassoon David, Baronet of Bombay ".
The said Sir Sassoon David, Bart.
and four other persons, who were holding certain securities of the value of Rs. 24,25,000 for the purpose of charity and had been applying the same for and towards charitable purposes, executed, on June 8, 1922, a Deed of Declaration of Trust declaring that the said trust fund would be held by them on trusts more specifically therein mentioned.
Clause 13 of the said deed, on the true construction of which depends the answer to the referred questions, runs as follows: " 13.
The Trust Fund shall be held by the Trustees upon the Trusts to apply the net income thereof 926 after providing for all necessary expenses in relation to the management of the Trust Funds for all or any of the following purposes, that is to say, (a) the relief and benefit of the poor and indigent members of Jewish or any other community of Bombay or other parts of India or of the world either by making payments to them in cash or providing them with food and clothes and/or lodging or residential quarters or in giving education including scholarships to or setting them up in life or in such other manner as to the said Trustees may seem proper or. . (b) the institution maintenance and support of hospitals and schools, colleges or other educational institutions or. . . (c) the relief of any distress caused by the elements of nature such as famine, pestilence, fire, tempest, flood, earthquake or any other such calamity or. . . . . (d) the care and protection of animals useful to mankind or. . . (e) the advancement of religion or. . . . (f) other purposes beneficial to the community not falling under any of the foregoing purposes. . . . Provided always that in applying the income as aforesaid the Trustees shall give preference to the poor and indigent relations or members of the family of the said Sir Sassoon David, Bart., including therein distant and collateral relations; provided further that in the application of the income of the said Charitable Trust Fund the said Trustees for the time being shall observe the following proportions, viz.: that not less than half the income of the said funds shall at all times be applied for the benefit of the members of the Jewish Community of Bombay only (including the relations of Sir Sassoon David, Bart.
as aforesaid) and Jewish objects and particularly in giving donations to the members of the Jewish Community of Bombay on the anniversary of the death of the said Sir Sassoon David, Bart.
and his wife Lady Hannah David which falls on the Twenty second day of June and the remaining income for the benefit of all persons and objects including Jewish persons and objects and in 927 such proportions as the said Trustees may think proper.
Provided further that if the income of the Trust Funds for any year shall not be wholly applied during that year on the Trusts aforesaid such surplus income may be carried forward to the subsequent year or years and be applied as the income arising during that year or years.
Provided also that during the life time of Sir Sassoon David, Bart., in the application of the said income the Trustees shall have regard to the wishes of the said Sir Sassoon David, Bart., who shall also be entitled to direct if he so desires that the income of the time being of the Trust Funds or any part thereof may be applied to such charitable object or objects as the said Sir Sassoon David, Bart., shall direct and in such case the Trustees shall so apply the income ".
This Deed of Declaration of Trust was, on June 4, 1953, registered under the Bombay Public Trusts Act, 1950.
The Trust fund had been invested by the trustees in inter alia 3 1/2% Government Securities.
In the year 1930 a certificate was issued by the Income tax Officer, A Ward, Bombay, whereby the Reserve Bank of India was authorised not to deduct at source the tax on the interest on the said securities so held by the trustees.
It was mentioned in the said certificate that it was to enure till its cancellation.
In 1946 the 3 1/2% Government Securities were redeemed by the Government of India and were converted into 3% Con version Loan, 1946.
Accordingly in February, 1948, the said certificate of exemption was cancelled, as the securities covered thereby had been redeemed by the Government.
The trustees thereupon asked for a fresh certificate of exemption from the Income tax Officer, Bombay Refund Circle in respect of the 3% Conversion Loan, 1946.
But the said Income tax Officer refused to issue such certificate on the ground that the income from the trust fund in question was not exempt from taxation under section 4(3)(i) of the said Act which, at the material time, was as follows: "4(1). . . . . . . . . . 928 (2) . . . . . . (3) Any income, profits or gains falling with in the following classes shall not be included in total income of the person receiving them: (i) Any income, derived from property held under trust or other legal obligation wholly for religious or charitable purposes, and in the case of property so held in part only for such purposes, the income applied, or finally set apart for application, thereto: Upon the fact of the withholding of the certificate by the Income tax Officer, Refund Circle, being intimated to the Income tax Officer, A V Ward, Bombay, the latter Officer started proceedings against the appellants under section 34 of the said Act in respect of the assessment years 1944 45 to 1947 48.
He also started regular proceedings for the assessment year 1948 49 and the succeeding years up to 1952 53.
In the assessment proceedings for those nine years the Income tax Officer took the view that the income from the trust fund was not exempt from taxation under section 4(3)(i) and accordingly he assessed the appellants for the first four assessment years (1944 45 to 1947 48) on the ground that the income for those years had escaped assessment.
He also assessed the appellants to tax for the subsequent five years (194849 to 1952 53).
On appeal the Appellate Assistant Commissioner confirmed the said assessments.
On further appeal by the appellants, the Income tax Appellate Tribunal set aside the assessments for the first four years (1944 45 to 1947 48) holding that section 34 had been wrongly invoked, for it was only a case of difference of opinion of one Income tax Officer from his predecessor on the same set of facts.
The department did not take any further steps in the matter and accepted that view of the Tribunal as regards the assessments of those years and we are not in this appeal concerned with them.
As regards the assessments for the five years (1948 49 to 1952 53) the Tribunal upheld the decision of the Appellate Assistant 929 Commissioner who had confirmed the assessments made by the Income tax Officer.
On application being made by the appellants, under section 66(1) of the said Act, the Tribunal drew up a statement of case and referred two questions of law arising out of its order to the High Court for its opinion.
The said questions are as follows : (1) Whether the Trust property is held wholly for religious or charitable purposes within the meaning of section 4(3)(i) of the Indian Income tax Act ? (2) If the answer to question (1) is in the negative, whether the trust property is held in part only for religious or charitable purposes ? The said reference came up for hearing before the said High Court and both the referred questions were answered in the negative.
The High Court, however, gave the appellants a certificate of fitness for appeal to this Court and the present appeal has been filed on the strength of such certificate.
A perusal of cl. 13 of the deed shows that the trust fund is declared to be held by the trustees upon trusts to apply the net income thereof for all or any of the six purposes enumerated therein.
It was conceded before the High Court and it has not been disputed before us that if there was nothing else in this clause, then each of these six purposes would have to be upheld as a charitable purpose involving an element of public utility and consequently within the protection of section 4(3)(i).
The fact that the trustees could expend the net income on any of the six purposes to the exclusion of the other five purposes would not, it is also conceded, have made the slightest difference in the matter of such exemption from income tax.
For instance, if the trustees spent the net income solely and wholly for the purposes mentioned under sub cl.
(a) to the exclusion of those mentioned in sub cls.
(b) to (f)such income would still be exempt from taxation under section 4(3)(i).
The High Court, however, took the view that cl. 13 should be read as a whole along with the provisos and that so read the trust is primarily for the benefit of the relations or members of the family 117 930 of Sir Sassoon David, Bart.
It is pointed out that in applying the net income for the purposes mentioned in sub cl.
(a), the trustees are bound, under the first proviso, to give preference to the poor and indigent relations or members of the family of the said Sir Sassoon David, Bart.
including therein distant and collateral relations.
The second proviso, it is urged, makes it further clear that in the application of the income for the said purpose, the trustees are enjoined to apply not less than half the income for the benefit of the members of the Jewish community of Bombay only " including the relations of Sir Sassoon David, Bart.
, as aforesaid " and the Jewish objects.
Emphasis is laid on the words not less than half " as indicating that it is permissible for the trustees to spend more than half and indeed the whole of the net income for the benefit of the said relations or members of the family of the said Sassoon David, Bart.
It is also pointed out that, although the remaining income, if any, has to be spent for the benefit of all persons and objects including Jewish persons and objects, the trustees could, if they so wished, spend the same also for the relations or members of the family of Sir Sassoon David, Bart.
as Jewish persons.
The argument, which found favour with the High Court, is that the provisos impose a mandatory obligation on the trustees (i) to give preference to the poor and indigent relations or members of the family of Sir Sassoon David, Bart.
and (ii) to spend not less than half the income, which may extend to the entire income, for the benefit of the relations or members of the family of Sir Sassoon David, Bart.
The High Court points out that in view of the language of el. 13 of the deed read as a whole, it is open to the trustees, without being guilty of any breach of trust, to spend the entire net income of the trust fund for the purpose of giving relief to the poor and indigent relations or members of the family of the said Sir Sassoon David, Bart., including therein the distant and collateral relations and such being the position, the High Court came to the conclusion that it could not be said that the property was held wholly or partly for religious or 931 charitable purposes involving an element of public utility.
The High Court accordingly held that the income from the trust fund was not exempt from taxation under section 4(3)(i) and answered both the questions in the negative.
The problem before us is whether the High Court was right in so answering the questions.
In coming to the decision that it did, the High Court relied on its own earlier decision in the case of Trustees of Gordhandas Govindram Family Charitable Trust vs Commissioner of Income tax (Central), Bombay (1).
The facts in that case, however, were somewhat different from the facts now before us.
In that case the trust was significantly enough described as " Gordhandas Govindram Family Charitable Trust ".
Clause 2 of that trust deed provided for the application of tile net income in giving help or relief to such poor Vaishyas and other Hindoos as the trustees might consider deserving of help in the manner and to the extent specified in the said trust deed and subject to the conditions and directions stated in the next following clauses.
Sub clause (a) of cl. 3 provided that Vaishya Hindoos who were members of Seksaria family should be preferred to poor Vaishyas not belonging to the said family.
Maintenance had to be provided under sub cl.
(b) for the poor male descendants of the settlor and under sub cl.
(c) for the poor female descendants of the settlor.
Marriage expenses were provided under sub el.
(d) for the poor male descendants and under sub cl.
(e) for the poor female descendants of the settlers There were other subclauses providing for payment of money to the poor male or female descendants of the other members of the Seksaria family.
In the present judgment now under appeal, the High Court recognises that the particular trust they were dealing with in the earlier case " was a fairly blatant illustration of a settlor trying to benefit his own family and his own relations " and states that in the earlier case it had pointed out " that the benefit to the public was too remote and too illusory and accordingly held that was (1) 932 not a trust which had for its object a general public utility ".
Such, however, cannot be said of the provisions of the present Deed of Declaration of Trust.
Under el. 13 the trustees are at liberty to hold the trust fund and to apply the net income thereof for all or any of the six purposes mentioned therein.
The relations or members of the family of the said Sir Sassoon David, Bart., including therein distant and collateral relations do not figure as direct recipients of any benefit under sub cls.
(b) to (f) and, therefore, in so far as those purposes are concerned the trust certainly involves an element of public utility.
We are not unminaful of the fact that it is open to the trustees to spend the net income entirely for the purpose referred to in sub cl.
(a) to the exclusion of the other clauses.
But the very fact that the relations or members of the family do not come in directly under any of those latter sub clauses cannot be ignored, for they certainly have some bearing on the question as to who or what were the primary objects of the trust as a whole.
In the next place, the purpose of sub cl.
(a) is the "relief and benefit of the poor and indigent members of Jewish or any other community of Bombay or other parts of India or of the world ".
It is conceded by learned counsel that this sub clause clearly expresses a general charitable intention involving an element of public utility.
It follows, therefore, that sub cl.(a) constitutes a valid public charitable trust having as its beneficiaries the several classes of persons referred to therein.
This is the first position.
We then pass on to the provisos.
The first proviso opens with the words " in applying the income as aforesaid ".
This takes us back to sub cl.
The meaning of the proviso obviously is that in applying the income for the purpose of sub el.
(a), the trustees shall give preference to the poor and indigent relations or members of the family of Sir Sassoon David, Bart.
The proviso does not operate independently but comes into play only " in applying the income as aforesaid".
The provision for giving preference involves the idea of selection of some persons out of a bigger class envisaged in subel.
The poor and indigent relations or members of 933 the family can claim to participate in the benefits under the trust only if they come within one of the several classes enumerated in sub el.
To take an extreme example: If a poor and indigent relation of Sir Sassoon David, Bart.
abjures the faith held by the Jewish community and does not adopt any other faith and thus ceases to be a member of the Jewish community but does not become a member of any other community, he will certainly not be entitled to the benefits of sub el.
(a) although he is a poor and indigent relation or member of the family of Sir Sassoon David, Bart.
within the meaning of the first proviso.
In other words, sub cl.
(a) prescribes the primary class of beneficiaries out of which the actual beneficiaries are to be selected by the application of the provisions of the provisos, that is to say, by giving preference to the relations or members of the family of the said Sir Sassoon David, Bart.
The case of In re Koettgan 's Will Trusts (1) appears to us, on the facts, to be more in point than the case of Gordhandas Govindram Family Charity Trust case (2) relied on by the High Court.
In the last mentioned English case the testatrix bequeathed her residuary estate upon trust for the promotion and furtherance of commercial educa tion.
The persons eligible as beneficiaries under the fund were stated to be ,persons of either sex who are British born subjects and who are desirous of educating themselves or obtaining tuition for a higher commercial career but whose means are insufficient or will not allow of their obtaining such education or tuition at their own expense. " The testatrix further directed that in selecting the beneficiaries " it is my wish that the . trustees shall give preference to any employees of John Batt & Co. (London) Ltd. or any members of the families of such employees; failing a sufficient number of beneficiaries under such description then the persons eligible shall be any persons of British birth as the trustees may select provided that the total income to be available for benefiting the pre ferred beneficiaries shall not in anyone year be more than 75% of the total available income for that (1) , 257.
(2) 934 year".
It was held, on a construction of the will, that the gift to the primary class from which the trustees could select the beneficiaries contained the necessary element of benefit to the public and that it was when that class was ascertained that the validity of the trust had to be determined, so that the subsequent direction to prefer, as to the 75% of the income, a limited class did not affect the validity of the trust which was accordingly a valid and effective charitable trust.
Referring to the first part of the will Upjohn, J., at p. 257 said: " If the will concluded there, the trust would clearly be a valid charitable trust, having regard to the admission that a gift for commercial education is for the advancement of education.
" Then after stating that the next task was to make a selection from that primary class of eligible persons, the learned Judge continued: " It is only when one comes to make a selection from that primary class that the employees of John Batt & Co. and the members of their families come into consideration, and the question is, does that direction as to selection invalidate the primary trust ? In my judgment it does not do so.
" Further down he said: "In my judgment it is at the stage when the primary class of eligible persons is ascertained that the question of the public nature of the trust arises and falls to be decided, and it seems to me that the will satisfies that requirement and that the trust is of a sufficiently public nature.
" The learned Judge then concluded: " If, when selecting from that primary class the trustees are directed to give a preference to the employees of the company and members of their families, that cannot affect the validity of the primary trust, it being quite uncertain whether such persons will exhaust in any year 75%.
On the true construction of this will, that is not (as to 75%) primarily a trust for persons connected with John Batt & Co., and the class of persons to benefit is not " confined " to them, and in my judgment the trust contained in clauses 7 935 and 8 of the will of the testatrix is a valid charitable trust.
" It is true that this is a judgment of a Single Judge but it does not appear to have been departed from or over ruled in any subsequent case and appears to us to be based on sound principle.
Applying this test, there can be no question indeed it has been conceded that the earlier part of el. 13, omitting the provisos, constitutes a valid public charitable trust.
The circumstance that in selecting the beneficiaries under subel.
(a) preference has to be given, under the provisos, to the relations or members of the family of Sir Sasoon David, Bart., cannot affect that public charitable trust.
In our judgment, the facts of this case come nearer to the facts of the English case referred to above than to the facts of the earlier decision of the Bombay High Court in Gordhandas Govindram Family Charity Trust case (1).
As we have already stated the relations of members of the family are clearly not the primary object contemplated by sub cls.
(b) to (f).
The first part of sub cl.
(a), omitting the provisos, is not said to be too wide or vague and unenforceable.
The provision for giving preference to the poor and indigent relations or the members of the family of Sir Sassoon David, Bart., cannot affect the public charitable trust constituted under sub cl.
In our opinion the income from the trust properties comes within the scope of section 4(3)(i) and is, therefore, entitled to exemption.
Therefore the negative answer given by the High Court to question No. I cannot be supported and that question should be answered in the affirmative.
In this view of the matter, question No. 2 does not arise and needs no answer.
The result is that this appeal must be allowed and the question No. I must be answered in the affirmative.
The appellants will have the costs of the reference in the High Court and of this appeal in this Court.
Appeal allowed.
| Clause 16 of the General Order No. 6,5 made by the Governor on March I5, 195,, under the Uttar Pradesh , 947, provided that the decision of the Tribunal or 972 Adjudicator shall be pronounced within 4o days from the date of reference.
By orders dated August 19, 1952, and January 20, 1953, the Governor referred two industrial disputes for adjudication.
The references did not specify the time within which the awards were to be submitted but stated that the disputes were to be adjudicated in accordance with the provisions of Order No. 615.
In the first reference the period for making the award was extendad from time to time up to March 10, 1953, but in the second reference the time was not extended.
On February 18, 1953, before the awards were made, cl. 16 of Order No. 615 was amended and the time Of 4o days was altered to 18o days.
The award in the first case was made on April 17, 1953, beyond 180 days of the reference, and in the second case on June 26, 953, beyond 40 ,lays of the reference but within 180 days thereof.
On May 22, 1953, the Uttar Pradesh Industrial Disputes (Amendment) Ordinance, 1951, came into force which conferred, with retrospective effect, power on the State Government to enlarge, from time to time, the period for making an award and which also validated certain awards not made within the time originally fixed for making them.
The Labour Appellate Tribunal held that the two awards were not valid in law as they had not been made within time.
It was contended by the appellant that as cl. 16 of the Order No. 6I5 had been amended the orders of reference must be construed as specifying 180 days within which the awards were to be submitted, and that, in any case, the awards were validated by section 3 of the Ordinance.
Held, that the award in the first case was submitted beyond time and was invalid and could not be validated by section 3 Of the Ordinance but that the award in the second case, though submitted beyond time, was validated by section 3(2) of the Ordinance.
The Act required the awards to be submitted within a speci fied time and although the orders of reference specified no time it was stated therein that the references were to be decided in accordance with the provisions of Order No. 615, and as such the orders must be read as specifying 4o days as the time within which the awards had to be submitted.
The subsequent amendment of cl. 16 whereby 180 days were substituted for 4o days could not affect an order of reference previously made as cl. 16, as amended, could not be held to have retrospective operation.
On a true construction Of section 3 Of the Ordinance cl.
(1) must be held to validate all orders of extension of time for submission of awards made prior to the commencement of the Ordinance, cl.
(3) applies to proceedings pending at the commencement of the Ordinance and makes section 6 A of the Act, introduced by the Ordinance, applicable to such proceedings and cl.
(2) validatesawards against which no judicial proceedings were pending at the commencement of the Ordinance and not only awards which had become final.
Consequently, the award in the first case against which an appeal had been filed before the commencement of the 973 Ordinance and to which cl.
(3) Of section 3 of the Ordinance applied was bad as it was made beyond the last date of the enlargement of time.
But the award in the second case against which the appeal was filed after the commencement of the Ordinance was validated by el.
(2) Of section 3 of the Ordinance.
|
Special Leave Petition (Civil) No. 7508 of 1988.
From the Judgment and order dated 28.6.1988 of the Bombay High Court in Civil Writ Petition No. 800 of 1988.
728 S.N. Kacker, U.R. Lalit, V.D. Joshi, B.D. Joshi, S.C. Bora and Kailash Vasdev for the Petitioner.
Dr. Y.S. Chitale, V.A. Bobde, V.J. Francis, N.M. Popli and Miss Almjit Chauhan for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This special leave petition is directed against the judgment and order of the High Court of Bombay dated June 28, 1988 upholding the election of respondents nos.
1 and 2 Dr. Shantaram Kale and Takiqui Hassan as Mayor and Deputy Mayor respectively, and respondents nos.
3 8 as Members of the Standing Committee at the first meeting of the Aurangabad Municipal Corporation at the Alankar Hall, held on May 6, 1988 at 2 p.m.
The issue involved is whether the first meeting of the Corporation called for that day at 2.45 p.m. by the Municipal Commissioner, respondent No. 9, who presided over the meeting, was adjourned for the day or adjourned sine die and therefore had to be called on some subsequent date to be fixed by him and thus necessitated the giving of seven days ' clear notice as required by r. 1(h), Chapter II of the Rules framed under section 453 of the Bombay Provincial Municipal Corporation Act, 1949.
Since the question involved was a matter of moment and the affidavits filed by the petitioner Chandrakant Khaire, the leader of the Shiv Sena Party which is the largest single group in the Corporation consisting of 18 Concillors, and by some of the Councillors as well as their supporters, and the affidavits in opposition filed by the Party in power Congress I which has formed a coalition with the splinter groups commanding a majority of 32 Councillors in a House of 60, raise controverted facts as to whether the proceedings of the meeting had been adjourned sine die or merely suspended, we thought it better to have the minutes of the proceedings before us.
Shri Vinod Bobde, learned counsel appearing for the Municipal Commissioner has placed the minute books written in Marathi along with a translation thereof in English.
At the last occasion we were left with the impression that the word used by the Municipal Commissioner was 'tahkub ' while adjourning the meeting at 2.45 p.m. amidst unprecedented scenes of complete disorder, commotion and pendemonium.
We now find the word used in the minutes is 'sthagit ' but in the translation furnished the word used is 'adjourned '.
The facts revealed in the counter affidavits filed by the Munici 729 pal Commissioner, Collector and the Superintendent of Police show that a serious law and order situation had arisen due to which both the Collector and the Superintendent of Police had to rush to the venue of the meeting.
They both have sworn to the fact that not only the Councillors but many outsiders were present in the hall where the meeting was being held.
There were also a large number of supporters of the rival parties, spectators and journalists.
The Municipal Commissioner was surrounded by some 20 25 persons apart from the Councillors, one group insisting upon the meeting being adjourned for the day i.e. the Councillors belonging to the majority Shiv Sena Party while the other group consisting of the Congress I Party and the splinter groups forming the coalition demanding that the meeting be continued.
The Collector has sworn to the fact that there was 'total confusion and bedlam inside the hall apart from the fact that the entire atmosphere was surcharged with commotion ' and no business could be transacted.
He has further sworn to the fact that respondent No. 9, the Municipal Commissioner, the presiding officer, appeared to be 'in a very agitated state of mind ' and told him that he could not hold the meeting in the unruly and disorderly situation prevailing and complained that despite his repeated requests to the Councillors to maintain peace, it had no effect and they kept on shouting, raising slogans and fighting amongst themselves and thereby making it impossible for him to transact any business.
The meeting was scheduled to be held at 2 p.m. and respondent No. 9 announced that the polling for the offices of Mayor, Deputy Mayor and Members of the Standing Committee would commence from 2.30 p.m. onwards.
What happened thereafter reveals a very disturbing feature which unfortunately has become too common these days and shows the strain through which our democratic system is passing.
At about 2.30 p.m. some of the Councillors belonging to the Shiv Sena Party sat on the ballot boxes and others belonging to that Party and its supporters surrounded the Municipal Commissioner demanding that the meeting be adjourned to a subsequent date.
Thereupon, the Councillors belonging to the Party in power i.e. Congress I, started shouting at him that the meeting be held later on that day, being apprehensive that if the meeting were to be adjourned, they might lose the contest.
There followed shouting of slogans, hurling of abuses and thumping of the tables.
The Councillors belonging to the rival groups then started throwing chairs at each other leading to a pandemonium.
That the fact that not only Councillors but also many outsiders were present in the hall where the meeting was being held who really had no business to be there, is clearly brought out in the affidavits sworn by the Municipal 730 Commissioner, Collector and the Superintendent of Police.
They also show a large number of persons freely entering and leaving the hall.
It is apparent from the affidavit of the Superintendent of Police that during the time when all this happened, Viswasrao Deshmukh, Revenue Minister, Government of Maharashtra came into his office and left the premises while he was actually busy in supervising the bandobust.
We have been shown photographs showing the presence of a large number of policemen wielding lathis inside the hall.
The Collector 's affidavit reveals that the Superintendent of Police personally requested Chagan Bhujbal, a sitting Member of the State Legislative Assembly belonging to the Shiv Sena Party, to keep himself away from the premises of the meeting hall.
Be that as it may, it appears that both the officers asked the outsiders to clear out of the hall, requested the Councillors to take their places so as to permit the Municipal Commissioner to transact the business for the day and brought the situation under control.
They have sworn to the fact that after the Councillors had calmed down and order was restored, both of them left the hall.
Thereafter, the Municipal Commissioner apparently announced on the mike that the meeting would continue and the elections would be held at 4.30 p.m.
The petitioner Chandrakant Khaire being the leader of the Shiv Sena Party, filed a written protest at 4.15 p.m. that the meeting had been adjourned by the Municipal Commissioner for the day and therefore the holding of the meeting later on that day would be improper and illegal.
After this, the Councillors belonging to the opposition group abstained from participating in the meeting held at 4.30 p.m. at which respondents nos.
1 and 2 Dr. Shantaram Kale and Takiqui Hassan were declared elected as Mayor and Deputy Mayor respectively and respondents nos.
3 8 as Members of the Standing Committee, each of them having polled 32 votes.
We had benefit of hearing Shri S.N. Kacker, learned counsel for the petitioner, Dr. Y.S. Chitale, learned counsel appearing for respondents nos.
1 8 and Shri Vinod Bobde, learned counsel appearing for respondent No. 9, the Municipal Commissioner.
After a protracted hearing we at the end of the day reserved orders.
Having given the matter our anxious consideration, we find it difficult to interfere with the judgment of the High Court.
In view of the conflicting affidavits, the petitioner and his supporters asserting that the Municipal Commissioner had adjourned the meeting for the day and respondent No. 2 reiterating the version of the Municipal Commissioner that he had only suspended the proceedings so that the meeting could be held later in the day and the business for 731 the day, namely, election of the Mayor, Deputy Mayor and Members of the Standing Committee, could be transacted, the High Court relying on the 'preponderance of probabilities ' has come to the conclusion that in the facts and circumstances the affidavit of the Municipal Commissioner, respondent No. 9, appeared to be 'more impressive, probable and convincing ' and therefore they were inclined to accept it as 'one inspiring confidence '.
Acting upon the affidavit sworn by respondent No. 9, the Municipal Commissioner, the High Court has found as a fact that the meeting was not adjourned for the day or sine die but it was to be held as soon as peace was restored on the very day i.e. the meeting had only been postponed.
That is an inference drawn from affidavits and we find no just and compelling reasons to upset the same.
Shri S.N. Kacker, learned counsel for the petitioner contends that the High Court erred in proceeding on probabilities in deciding the present matter which has far reaching ramifications affecting the democratic principles.
It is said that the High Court having found that because of unruly and provocative atmosphere prevailing in the meeting hall, the Municipal Commissioner was required to adjourn the meeting in order to restore peace and to re arrange the furniture which was helter skelter as the Councillors, it is stated, threw chairs at each other, erred in taking the view that the meeting was not adjourned for the day or sine die but had merely been suspended when in fact, the business for the day, namely, elections to the offices of Mayor, Deputy Mayor and Members of the Standing Committee, could not obviously be transacted.
He further contended that when the Municipal Commissioner on his own showing had to adjourn the proceedings in view of the prevailing atmosphere and since he felt it was impossible to continue the election process in that situation, it was wrongly held by the High Court that the meeting was not adjourned sine die when the Municipal Commissioner unequivocally admits that such adjournment was necessary to enable him to decide and announce the time for the resumption of the further proceedings.
In substance, the contention is that the meeting was not adjourned to a definite point of time and must therefore be regarded as adjourned for the day or adjourned sine die.
The learned counsel referred to several law dictionaries to bring out the meaning of the expression 'adjourned sine die ' and relied upon the decision of the Calcutta High Court in Smt.
Menaka Bala Dasi vs Hiralal Gobindalal & Anr., and that of the Madhya Pradesh High Court in Sheokumar Shashtri vs Municipal Committee, Rajnandgaon, AIR (1964) MP 195, and also to a passage from Shackleton on the Law & Practice of Meetings, 7th edn.
at p. 44 for the 732 submission that in the case of adjournment sine die, the meeting stands adjourned to an unspecified date and as such a fresh notice calling for the meeting is necessary.
Dr. Y.S. Chitale appearing for respondents nos.
1 8 and Shri Vinod Bobde for respondent No. 9, on the other hand, contended that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2.45 p.m. and the adjourned meeting at 4.30 p.m. was a continuation of the original meeting and no new notice of an adjourned meeting had to be given.
It was contended further that there was no warrant for interference under article 136 of the Constitution since a finding of fact has been reached by the High Court on a consideration of the Material on record.
It was also contended that the petitioner having failed to make good the averment in the writ petition that the meeting had been 'adjourned for the day ', the High Court was justified in declining to interfere.
In order to appreciate the point in controversy, it is necessary to set out the relevant statutory provisions bearing on the question.
It is needless to stress that a Municipal Corporation cannot function without the Mayor, Deputy Mayor and Members of the Standing Committee who are entrusted with certain functions and duties under the Act.
Sub section
(1) of section 19 of the Act provides that 'the Corporation shall at its first meeting after the general elections . . . elect from amongst the Councillors one of its members to be the Mayor and another to be the Deputy Mayor ', their term of office being one year.
Sub section
(2) of section 20 enacts that 'the Corporation shall at its first meeting after the general elections appoint 12 persons out of its own body to be Members of the Standing Committee '.
The term of office of the elected Councillors, as provided by section 6(1), is a period of five years which in terms of sub section (2) is deemed to commence on the date of the first meeting called by the Municipal Commissioner.
The relevant Rules framed under section 453 of the Act relating to the proceedings of the Corporation are as follows: "1(b).
The first meeting of the Corporation after general elections shall be held as early as conveniently may be on a day and at a time and place to be fixed by the Commissioner, and if not held on that day shall be held on some subsequent date to be fixed by the Commissioner." "1(h).
At least seven clear days ' notice shall ordinarily be given of every meeting, other than any adjourned meeting. 733 1(m).
Any meeting may, with the consent of a majority of the councillors present be adjourned from time to time to a later hour on the same day or to any other, but no business shall be transacted and, except as is hereinafter provided, no proposition shall be discussed at any adjourned meeting other than the business or proposition remaining undisposed of at the meeting from which the adjournment took place." "2(3).
The Presiding Officer may in case of grave disorder suspend the meeting for a period not exceeding three days.
" It is therefore quite obvious that the first meeting of the Corporation is of prime importance.
Learned counsel for the parties have agreed that cl.(m) may not govern the first meeting of the Corporation but relates to subsequent meetings.
The question before us is whether the first meeting 'could not be held on that day ' within the meaning of cl.(b) of r. 1 and therefore had to be held 'on some subsequent date to be fixed by the Municipal Commissioner '.
The affidavits on record clearly show that the Municipal Commissioner who presided over the meeting, was constrained to adjourn the meeting at 2.45 p.m. when some of the Councillors belonging to the Shiv Sena Party, of which the petitioner is the leader, went inside the booth and forcibly removed the ballot boxes and sat upon them to prevent casting of any votes, giving rise to commotion and pandemonium.
What actually happened is best stated by the Municipal Commissioner in his affidavit: "As a result there was tremendous confusion, chaos and uproar in the house and there was tremendous noise and nothing could be heard clearly.
I say that there was tremendous tension and the situation was going out of control and it was not possible to conduct the election at the moment of time and therefore I announced that the meeting is adjourned and that the Councillors should restore peace.
I also said that I shall soon announce the time of meeting.
I say that I did not leave the house and remained in the chair of the Presiding Authority hoping that the peace would be restored and I would be able to announce the time of the meeting.
Thereafter Shri Man Mohan Singh 734 Oberoi raised the point of order that the meeting should not be adjourned and that he along with another Councillor Dr. Sancheti insisted that meeting should continue.
At this stage the situation in the house worsened and in fact there was hot exchange of words and shouting between different groups of Councillors.
An attempt was made to throw chairs at each other and in fact the furniture in the house was scattered and several Councillors surrounded me and some spoke in favour of adjournment and some spoke in favour of continuation.
My efforts to restore peace and order were futile, and there was serious law and order situation.
In the circumstances aforesaid there was no alternative and I felt that it was my duty to seek the Police help and I called the Police to restore order.
Thereupon some of the Councillors objected and actually resisted the entry of the Police.
Thereafter on my directives the Police soon left.
Some of the Shiv Sena Councillors were in aggressive mood and they came to my table and violently thumped the table and shouted that they would not allow this meeting to take place.
During this period I even suggested that the Councillors should go out.
This was necessary as I felt that without that the furniture cannot be re arranged and further steps for resuming the meeting will not be possible.
In the meantime the District Magistrate Shri R.R. Sinha and Supdt.
of Police Shri T.C. Wankhede entered the Hall.
S.P. Shri Wankhede appealed the Councillors on the mike to restore peace.
I say that discussions took place between myself and the Dist.
Magistrate with a view to restore the peace.
The Dist.
Magistrate Shri Sinha also appealed to restore peace.
Thereafter the Councillors were calmed down and the order was restored.
On the peace being restored both the District Magistrate and the S.P. left the house at 3.45 p.m.
I announced on the mike that meeting would continue and election would be held at 4.30 p.m." ******* ******* ". in effect the adjournment declared by me as aforesaid amounts to suspension of the meeting because of the grave disorder . " ******* ******* 735 "I also said that I shall soon make an announcement about the time for resuming the meeting.
" ******* ******* "I had to adjourn the proceedings in view of the prevailing circumstances set out hereinabove and since I felt that it was impossible to continue the election process in that situation.
It was also necessary to enable myself to decide and announce the time for the resumption of the further proceedings of the meeting.
" While setting out the facts we have already adverted to the facts sworn by the Collector and the Superintendent of Police.
There is no reason not to act on these affidavits.
The Collector says that 'there was total confusion and bedlam inside the hall ' apart from the fact that 'the entire atmosphere was surcharged with commotion ', and 'the Municipal Commissioner was in a very agitated state of mind and said that he could not hold the meeting in the unruly and disorderly situation prevailing '.
There can be no doubt that such unruly scenes witnessed on that day gave rise to a serious law and order situation but both the Collector and the Superintendent of Police were able to restore order in the House and prevailed upon the outsiders to vacate the meeting hall in order that the proceedings could be resumed.
The fact that the Municipal Commissioner did not leave the House or vacate the seat does lend support to the version that he had merely suspended the proceedings till order was restored.
There is no reason to doubt the affidavit sworn by the Municipal Commissioner that he announced on the mike at 3.45 p.m. that the proceedings would be resumed at 4.30 p.m. for transacting the business for the day.
It is quite obvious that the meeting was not 'adjourned for the day ' or 'adjourned sine die '.
Shri Kacker, learned counsel for the petitioner contended that when the affidavits of the three officers showed that utter confusion prevailed and there was pandemonium all around with strangers moving about in the meeting hall, it must necessarily follow that no business could be transacted on that day.
The contention is that the meeting was not adjourned to a definite point of time and must therefore be regarded as 'adjourned for the day ' or 'adjourned sine die '.
He referred to the decisions in Menaka Bala Dasi and Sheokumar Shashtri, as also to various law dictionaries, besides a passage from Shackleton on the Law and Practice of Meetings, 7th edn.
at p. 44.
On the strength of these authorities, it was submitted that 736 the meeting was adjourned not to a definite point of time and must therefore be regarded as 'adjourned for the day ' or 'adjourned sine die '.
He accordingly submitted that the Municipal Commissioner should have fixed another date for the meeting and issued fresh notice therefor.
We are afraid, we cannot accept this line of reasoning.
According to the ordinary meaning, the expression 'sine die ' as given in Shorter Oxford Dictionary, 3rd edn., vol.
II at p. 2000 means: "Without any day being specified (for reassembling, resumption of business etc.); indefinitely." Similarly, in Webster 's Comprehensive Dictionary, International edn., the meaning given is more or less the same: "Without a day; indefinitely: an adjournment sine die (that is, without setting a day for ressembling).
" The same is the legal meaning.
In Black 's Law Dictionary, Deluxe 4th edn.
at p. 1556, the meaning of the expression sine die is: "Without day; without assigning a day for a further meeting or hearing." The legal meaning given in Jowitt 's Dictionary of English Law, 2nd edn., vol.
II at p. 1663 reads: "Without a day being fixed.
The consideration of a matter is said to be adjourned sine die when it is adjourned without a day being fixed for its resumption.
" The passage in Shackleton at p. 44 on which the learned counsel relies reads: "Adjourned meetings: Notice.
An adjournment, if bona fide, is only a continuation of the meeting and the notice that was given for the first meeting holds good for and includes all the other meetings following up it.
If however the meeting is adjourned sine die, a fresh notice must be given.
No new business can be introduced unless notice of such new business is given.
" 737 There can be no dispute with the proposition but the difficulty is about the applicability of that principle to the facts of the case.
Literally, there is nothing on record to substantiate the petitioner 's submission that the first meeting scheduled to be held on May 6, 1988 at 2 p.m. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. without consideration of the agenda for the day.
On the contrary, it is not in dispute that the business for the day was partly transacted when the Councillors met at 2 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards.
The trouble started at 2.30 p.m. when the Councillors belonging to the petitioner 's Shiv Sena Party prevented the casting of votes by snatching away the ballot boxes from the polling booths and sat upon them.
There was a pre determined plan on their part not to allow the first meeting to be held on that day.
But the Municipal Commissioner did not give way to the commotion and pandemonium and he did not put off the meeting to another day.
In the prevailing situation, the Municipal Commissioner had no other alternative but to adjourn the meeting.
Under the scheme of the Act, when the term of the elected Councillors is a period of five years which in terms of sub section (2) of section 6 of the Act is deemed to commence on the date of the first meeting, the Municipal Commissioner obviously could not adjourn the meeting for another day or adjourn it sine die.
If the contention that the meeting having been adjourned without specifying a definite point of time were to prevail, it would give rise to a serious anomaly.
The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date under section 6(2) of the Act for commencement of the term of the Councillors.
The Municipal Commissioner has unequivocally asserted that he only suspended the proceedings in order that they could be resumed for transaction of the business for the day, and the business for the day had to be transacted on May 6, 1988, the date of the first meeting, as fixed by him.
Admittedly, the Municipal Commissioner did not leave the meeting hall nor vacate his seat.
He showed exemplary courage in not yielding to the threats of violence wielded by the party in opposition, because he knew that in law the first meeting had to be held on that day and could not be adjourned to another day.
There is no reason to disbelieve the Municipal Commissioner that when he adjourned the meeting he simultaneously made an announcement that he would later announce the time when the meeting was to be resumed.
He is candid enough to say that he had to adjourn the proceedings in view of the prevailing situation when he felt that it was impossible to continue the election process hoping that peace would soon be restored and he would be able to announce the time of the 738 meeting.
One of the reasons given for the adjournment was that he adjourned the meeting to enable him to decide and announce the time for the resumption of the further proceedings of the meeting.
Rankin, CJ in Menaka Bala Dasi 's case in repelling the contention that adjournment sine die of an application for making a decree in a mortgage suit final, was a discontinuance of it, observed: "(W)hatever may be the old authorities on that point, I have no doubt myself that with us to day 'adjournment sine die ' differs altogether from discontinuance.
It is after all an adjournment an adjournment to a date that is not at the moment fixed.
" The decision of the Madhya Pradesh High Court in Sheokumar Shasthri 's case relied upon by learned counsel for the petitioner is clearly distinguishable.
In that case, it was admitted that the meeting of the Municipal Committee summoned for January 17, 1962 at which the motion of no confidence was to have been moved was adjourned sine die for want of quorum and the High Court held relying upon the proviso to section 32 of the Madhya Pradesh Municipalities Act, 1961, that a meeting convened for consideration of a no confidence motion could not be adjourned sine die, but had to be adjourned to 'some other day ' for which a fresh notice was necessary, P.V. Dixit, CJ speaking for himself and K.L. Pandey, J. observed: "It is settled law that where there is a power of adjournment and a meeting is adjourned, then the adjourned meeting is a continuation of the original meeting and no new notice of an adjourned meeting need be given unless the relevant statutory provisions or rules so require.
But in the case of an adjournment sine die a fresh notice is necessary, (See: Scadding vs Lorant, ; ; and Wills vs Murray, ; The proviso to section 32 of the C.P. and Berar Municipalities Act, 1922, laid down that: "If at any ordinary or special meeting of the committee a quorum is not present, the Chairman shall adjourn the meeting to such other day as he may think fit . . " Under this proviso, a meeting could be adjouned to some fixed date and not sine die.
" 739 The decision in Sheokumar Shashtri is therefore of no avail.
Shackleton on the Law & Practice of Meetings, 7th edn.
apart from the passage at p. 44 already quoted, gives the different shades of meaning of adjournment as understood in legal parlance, in the following words: "Adjournment is the act is postponing a meeting of any private or public body or any business until another time, or indefinitely, in which case it is an adjournment sine die.
The word applies also to the period during which the meeting or business stands adjourned.
An Adjournment may be: 1.
For an interval expiring on the day of the adjournment.
For an interval expiring on some later date.
For an indefinite time (i.e. sine die).
Until a fixed time and date.
To another place.
" The learned author then sets out the different causes giving rise to an adjournment which may be by (1) Resolution of the meeting.
(2) Action of the chairman, and (3) Failure to achieve or maintain a quorum.
A properly convened meeting cannot be postponed.
The proper course to adopt is to hold the meeting as originally intended, and then and there adjourn it to a more suitable date.
If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat.
Even if the relevant rules do not give the chairman power to adjourn the meeting, he may do so in the event of disorder.
Such an adjournment must be for no longer than the chairman considers necessary and the chairman must, so far as possible, communicate his decision to those present.
The law relating to adjournment has been put succinctly in Horsley 's Meetings Procedure, Law and Practice, 2nd edn., edt.
by W. John Taggart at p. 84, para 1002: 740 "The word 'adjournment ' tends to be used loosely in connection with meetings.
Indeed, as a result, the word is possibly in process of acquiring a further, derived meaning of 'close, conclude or finish ', whereas a meeting or a debate is adjourned when its further proceedings are postponed to some subsequent time or to enable it to reassemble at some other place; to a later hour in the same day, to some future date, or indefinitely, i.e. sine die (without a day being named).
The business (of the whole meeting or the debate respectively) is indeed suspended, but with an intention of deferring it until resumption at a later time.
" The learned author goes on to say that the word 'adjourn ' has been in use for almost five centuries in connection with meetings, with an early meaning of 'to put off or defer proceedings to another day ', and adds: "This in due course gave rise to the added meaning 'to break off for later resumption '.
" On an overall view of the facts and circumstances, we have no hesitation in upholding the finding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner for May 6, 1988 was not 'adjourned for the day ' or 'adjourned sine die ' but had only been put off to a later hour i.e. the proceedings had only been suspended, to re commence when peace and order were restored.
In the result, the special leave petition must fail and is dismissed.
No costs.
G.N. Petition dismissed.
| After the election of Members, the first meeting of the Aurangabad Municipal Corporation was held on May 6, 1983 at 2 P.M. and the Municipal Commissioner announced that the polling for the offices of Mayor, Deputy Mayor and Members of the standing Committee would commence from 2.30 p.m. onwards.
But at 2.30 P.M. some of the Councillors belonging to the Opposition Party sat on the ballot boxes and some others surrounded the Municipal Commissioner and demanded that the meeting be adjourned to a subsequent date.
The Councillors belonging to the ruling party demanded that the meeting and election be held later on that day.
Total confusion and bedlam prevailed and the rival groups started throwing Chairs at each other, leading to a pandemonium.
It was a free for all, and even outsiders were present.
When the situation was brought under control, the Municipal Commissioner announced that the meeting would continue and the elections would be held at 4.30 p.m.
The petitioner filed a protest at 4.15 p.m. stating that the meeting had been adjourned by the Municipal Commissioner for the day and, therefore, the holding of the meeting later on the same day would be improper and illegal.
Thereafter, the opposition group abstained from participating in the meeting held at 4.30 p.m., in which Respondents 1 and 2 were declared elected as Mayor and Deputy Mayor respectively 726 and Respondents 3 8 as Members of the Standing Committee.
In a Writ Petition filed before the High Court, the appellant questioned the election, on the basis that the meeting in which the election was held, was invalid.
The High Court held that the meeting was not adjourned for the day or sine die, but was only postponed, to be held as soon as peace was restored on the very day and upheld the election of Respondents 1 to 8.
Against the judgment of the High Court, the petitioner has filed the present special leave petition.
On behalf of the petitioner, it was contended that the meeting was not adjourned to a definite point of time and must therefore be regarded as adjourned for the day or adjourned sine die.
The contention of the Respondents was that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2.45 p.m. and the adjourned meeting held at 4.30 p.m. was a continuation of the original meeting and no new notice of an adjourned meeting had to be given.
It was also contended that there was no warrant for interference under article 136 of the Constitution since a finding of fact had been reached by the High Court on consideration of the material on record.
Dismissing the petition, ^ HELD: 1.
A properly convened meeting cannot be postponed.
The proper course to adopt is to hold the meeting as originally intended, and then and there adjourn it to a more suitable date.
If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat.
Even if the relevant rules do not give the chairman power to adjourn the meeting, he may do so in the event of disorder.
Such an adjournment must be for no longer than the chairman considers necessary and the chairman must, so far as possible, communicate his decision to those present.
[739F G] 2.1 In the instant case, the High Court was right in holding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner for May 6, 1988 was not 'adjourned for the day ' or 'adjourned sine die ' but had only been put off to a later hour i.e. the proceedings had only been suspended, to re commence when peace and order were restored.
[740D E] 727 2.2 There is nothing on record to sustantiate the petitioner 's submission that the first meeting scheduled to be held on May 6, 1988 at 2 P.M. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. without consideration of the agenda for the day.
On the contrary, it is not in dispute that the business for the day was partly transacted when the Councillors met at 2 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards.
The trouble started at 2.30 p.m. when the Councillors belonging to the petitioner 's party prevented the casting of votes by snatching away the ballot boxes from the polling booths and sat upon them.
There was a pre determined plan on their part not to allow the first meeting to be held on that day.
But the Municipal Commissioner did not give way to the commotion and pandemonium and he did not put off the meeting to another day.
In the prevailing situation, the Municipal Commissioner had no other alternative but to adjourn the meeting.
Under the scheme of the Act, when the term of the elected Councillors is a period of five years which in terms of sub section (2) of section 6 of the Act is deemed to commence on the date of the first meeting, the Municipal Commissioner obviously could not adjourn the meeting for another day or adjourn it sine die.
If the contention that the meeting having been adjourned without specifying a definite point of time were to prevail, it would give rise to a serious anomaly.
The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date under section 6(2) of the Act for commencement of the term of the Councillors.
The fact that the Municipal Commissioner did not leave the House or vacate the seat lends support to the version that he had merely suspended the proceedings till order was restored.
[737A E] Smt.
Menaka Bala Dasi vs Hiralal Gobindalal & Anr., and Sheokumar Shashtri vs Municipal Committee, Rajnandgaon, AIR 1964 MP 195 Distinguished.
Shackelton on the Law & Practice of Meeting, 7th Edn.
p. 44, Horsley 's Meetings Procedure, Law and Practice, 2nd Edition, p. 84, para 1002 referred to.
|
CTION: Civil Appeal No. 460 of 1970.
Appeal by special leave from the judgment and order dated May 20, 1969 of the Allahabad High Court in Special Appeal No. 1177 of 1968.
M. C. Chagla and R. Gopalakrishnan, for the appellant.
V. A. Seyid Muhammad, P. C. Chandi, B. D. Sharma and section P. Nayar, for the respondents.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgement of the Allahabad High Court dismissing a writ petition by which the appellant challenged the validity of a warrant issued by the Assistant Collector, Central Excise, Allahabad, authorising the Superintendent Central Excise, Varanasi, to enter certain premises, search the same and seize the documents therefrom.
The appellant, which is a public limited company having its registered office at Calcutta, owns and runs a factory known as Sahu Chemicals and Fertilisers at Varanasi where chemicals such 94 as ammonia and soda ash are manufactured.
In February 1962 excise duty was fixed on manufacture of ammonia for the purpose of fertilisers at Rs. 25/ per metric ton, the rate being Rs. 125/ per metric ton if it was used for other purposes.
The notification by which the aforesaid duty was payable was later withdrawn by means of another notification dated March 1, 1964 and thereafter no excise duty was required to be paid on the manufacture of ammonia.
For the period from May 1962 to the beginning of March 1964 the appellant had paid duty at the rate of Rs. 25/ per metric ton on the ground that ammonia had been utilised for the purpose of manufacture of chemical fertiliser.
The Central Excise authorities, however, had received information that part of the ammonia had been utilised for purposes other than the manufacture of fertilizers on which higher duty of Rs. 125/ per metric ton was payable.
It was considered that there had been evasion of duty.
On May 11, 1968, the Assistant Collector issued a warrant for the search and seizure of goods and documents pursuant to which the premises of the factory at Varanasi were searched on May 11, 12 and 13, 1968 and various documents were seized.
The writ petition was heard in the first instance by the learned single judge who dismissed it.
In appeal his judgment was upheld by the Division Bench.
Three contentions were raised before the Division Bench; the first was that section 1.2 of the , hereinafter called, the "Act" was void as the powers delegated to the Central Government by the legislature were excessive and beyond permissible limits.
The second point was that the having been repealed it was not open to the Central Government under section 12 of the Act to apply section 105(1) of the to the Act and the notification dated May 4, 1963 by which this was done was illegal and ultra vires.
The, third was that the search and seizure made by the respondents under the impugned authorisation dated August 11, 1968 and the authorisation itself were not in accordance with the provisions of section 105 of the .
Section 12 of the Act is in the following terms: section 12.
Application of the provisions of Act VIII of 1878 to Central Excise Duties.
The Central Government may, by notification in the official Gazette declare that any of the provisions of the relating to the levy on and exemption from customs duties, drawback of duty, warehousing offences and penalties, confiscation, and procedure relating to offences and appeals, shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, be applicable in regard to 95 like matters in respect of the duties imposed by section 3.
" When the Act was enacted section 172 of the which could be applied to the Act under section 12 provided : S.172.
"Any Magistrate may, on application by a Customs Collector, stating his belief that dutiable or prohibited goods (or any documents relating to such goods) are secreted in any place within the local limits of the, jurisdiction of such Magistrate, issue a warrant to search for such goods.
Such warrant shall be executed in the same way and shall have the same effect, as a search warrant issued under the law relating to Criminal Procedure.
" It may be mentioned that the words "or documents" were inserted by the Sea Customs Amendment Act 1955.
After the enactment of the by the notification dated May 4, 1963 as amended by the Notification dated February 6, 1965 amongst other provisions of the , sub section (1) of section 105 and section 1, IO were made applicable with certain modifications of a minor nature under section 12 of the Act.
The material part of these sections are reproduced below ; "section 105(1) Power to search premises. (1) if the Assistant Collector of Customs, or in any area adjoining the land frontier or the coast of India an officer of Customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things." "section 110(3).
The proper officer may seize any document or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act.
" On the first point it has been urged on behalf of the appellant that section 12 of the Act gave unrestricted and unlimited power to the Central Government to modify or alter the provisions of the and to apply the provisions of that Act with such modifications and alterations as the Central Government might consider appropriate.
Modification, it has been pointed out, may be permissible, and may not fall within the vice of excessive delegation because the basic structure is not changed but alteration, it is suggested, has a much wider connotation and it emm 96 braces even the changing of the essential pattern of a thing or object.
Such a power inherently involves the making of changes even in regard to matters pertaining to legislative policy.
In our opinion the above contention is purely of academic interest in the present case.
In the notifications which were issued applying, inter alia, section 105 (1) and section 1 10 of the no such changes have been made as can possibly fall within the meaning of the word "alterations".
It has been pointed out in the previous decisions of this Court that the power to restrict and modify does not import the power to make essential changes.
It is confined to alterations of a minor character and no change in principle is involved.
See In re Delhi Laws Act, 1912.(1) It was conceded before the High Court and has not been urged before us that the word "modifications" could not be taken as con ferring on the Central Government any legislative power which was in excess of the permissible limits.
Objection was taken only with regard to the word "alterations" but that word must be understood in the sense in which it was open to the legislature to employ it legitimately and in a constitutional manner.
No question is thus involved of delegation either of any essential legislative functions or any change of legislative policy.
The second contention has hardly any merit.
Section 8(1) of the General Clauses Act provides that where any Central Act repeals and re enacts with or without modification any provision of a former enactment then references in any such enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re enacted.
By virtue of this provision it cannot be disputed.
that in section 12 of the Act the can be read in place of the .
An attempt has been made to argue that section 12 of the Act empowers incorporation of the provisions of in the Act itself and whenever a notification is issued under it such provisions of the as have been applied become incorporated as in integral part of the Act.
Section 8 of the General Clauses Act would not be applicable to a case of such incorporation and it can only apply if section 12 can be regarded as containing a reference to the provisions of the .
In Secretary of State for Indian in Council vs Hindusthan Cooperative Insurance Society Ltd. (2) it was accepted as a settled rule of construction that where a statute is incorporated by reference into a second the repeal of the first statute does not affect the second.
The law laid down by the Privy Council can have no applicability to the present case.
Section 12 of the Act did not bodily lift, as it were, certain provisions of the and incorporate (1) ; (2) 58 I.A.259.
97 them as an integral part of the Act.
It only empowered the Central Government to apply the provisions of the with such modifications and alterations as might be considered necessary or desirable by the Central Government for the purpose of implementation and enforcement of section 3 of the Act.
No exception could be taken to the view of the High Court that section 12 contained a provision delegating limited powers to the Central Government to draw upon the provisions of the for the purpose of implementing section 3 of the Act.
in The Collector of Customs, Madras vs Nathella Sampathu Chetty & Another(1) this Court examined at length the meaning and effect of incorporation by reference of one statute into another and discussed the Privy Council case referred to before in detail.
Section 8(1) of the General Clauses Act, it was pointed out, 'dealt with reference or citation of one enactment in another without incorporation.
The usual or recognised formulae generally employed to effect incorporation were considered; for instance the words used in section 20 of 53 and 54 Vict.
70 Housing of the Working Classes Act, 1890, the words used were " shall, for that purpose, be deemed to form part of this Act in the same manner as if they were enacted in the body thereof." In 54 and 55 Vict.
19, section 1(3), the language employed was,: "The provisions of section 134 of the said Act (set out in the schedule) shall apply as if they were herein enacted.
" It is unnecessary to mention the other provisions because a comparison of the recognised formulae with the text of section 12 of the Act shows that the provisions of the were not meant to be incorporated in the Act and were only to be applicable to the extent notified by the Central Government for the purpose of the duty leviable under section 3.
Another aspect which has been presented under the second contention is that the impugned notification is bad and stands vitiated because under the previous notification which applies section 172 of the it was a Magistrate who had to bring his judicial mind to bear on the expediency or desirability of issuing a warrant for search whereas under the present notification after the enactment of the it is the Assistant Collector of Customs who performs executive functions and who has been empowered to issue the warrant for search and seizure.
The decision of this Court in Collector of Customs & Excise.
Cochin & Ors.
vs A. section Bava(2) has been sought to be pressed into service in support of the argument that extension of section 105 (1), (1) ; (2) 98 is illegal.
In that case the provisions of section 129 of the had been applied under section 12 of the Act.
Section 129 dealt with the procedure relating to appeals and required an appellant to deposit pending the appeal the duty or penalty imposed and empowered the appellate authority, in its discretion, to dispense with such deposit pending the appeal in any particular case.
There was a provision in the Act itself, section 35, which gave an unfettered right of appeal to a person aggrieved by any decision or order made under the Act.
It was in these circumstances that it was held that section 129 of the could not be made applicable so as to whittle down the substantive right of appeal conferred by section 35 of the Act.
The ratio of that decision can afford no assistance to the appellant in the present case.
By the notification issued under section 12 of the Act after the enactment of , the previous notification under the stood superseded and no question survives with regard to the validity of the notification issued in 1963 and amended in 1965.
On the third point an attempt was made to argue that the Assistant Collector, while issuing the, warrant for search and seizure did not apply his mind to the relevant and necessary facts.
Our attention has been invited to the warrant itself in which the documents have not been particularised or specified but the words certain documents" have been used.
The learned single judge dealt with this matter fully and repelled the contention that there was no relevant material before the authority upon which the belief could be founded in terms of section 105(1) of the by the Assistant Collector.
We find no merit in this contention.
The appeal fails and it is dismissed with costs.
G.C. Appeal dismissed.
| On July 29, 1945 the predecessor in interest of the appellant mortgaged his house in Ratlam to K for a sum of Rs. 3,100 with possession.
According to the deed of mortgage interest would run on the said sum at Rs. 0 10 0 per cent per annum till realisation.
The period of redemption was two years.
Simultaneously with the mortgage a rent note was executed by and between the parties under which the mortgagor was to continue to Occupy the premises, at a rental of Rs. 20/ per month.
The rent note provided inter alia that if the executant (i.e. mortgagor) made default in payment of two months ' rent the mortgagee would be entitled to get him evicted.
The mortgagee was also entitled to increase or decrease the rent and the executant was to vacate the.
house whenever asked to do so.
K filed a suit on his mortgage in 1954 and a preliminary decree was passed in his favour.
On his death his legal representatives were substituted in his place on record.
For some reason no application for a final decree for sale of the property was made within the period fixed under the Limitation Act.
The application for this purpose made by the executors to the estate of K was dismissed on July 29, 1960 as barred by limitation.
On December 27, 1960 the said executors filed a suit for ejectment of the appellant alleging that the 'rent for the premises had remained unpaid from September 19, 1957 till November 28, 1960.
The trial judge dismissed the suit.
In first appeal the plaintiffs claim was allowed in full.
The High Court in second appeal maintained the decree of the appellate court.
Appeal by special leave was filed in this Court against the High Court 's judgment.
It was contended by the appellants that : (i) The rent note executed simultaneously with the mortgage was a mere device to secure payment of interest and did not represent an independent transaction.
Further it did not create any relationship of landlord and tenant; (ii) The plaintiffs ' right as mortgagee merged in the decree and execution thereof being barred by the laws of limitation the plaintiffs had lost all their rights; (iii) The mortgage being extinguished the mortgagor could not bring a suit for redemption on account of section 28 of the Limitation Act, 1908.
HELD : The appeal must be dismissed.
(1) The contents of the documents executed by the parties showed that the relationship between the parties was not simply that of a mortgagee and mortgagor the creditor also had the rights of a landlord qua his tenant besides other rights conferred on him which were greater than those possessed by an ordinary landlord.
[728 F] In all such cases the leasing back of the property arises because of the mortgage with possession.
It cannot however be held that the mortgagee 724 does not secure to himself any rights under the deed of lease but must proceed on his mortgage in case the amount secured to him under the deed of lease is not paid.
If the security is good and considered to be sufficient by the mortgagee there is no reason why be should be driven to file a suit an his mortgage when be can file a suit for realisation of the moneys due under the rent note.
The position of the creditor is strengthened where as in the present case, the interest on the amount of the mortgagee is not the same as the rent fixed.
If during the continuance of, the security the mortgagee wanted to sue the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had covenanted to pay, there could be no legal objection to it.
Under the provisions of 0.34 r. 4 of the Code of Civil Procedure he could deprive the mortgagor of his right to redeem excepting by proceeding on his mortgage.
It may be (without a final opinion being expressed on the point) that a mortgagee who secured decree for payment of rent cannot put the property to sale for realisation of the amount decreed, but there cas be no objection to his suing for possession if the rent note entitles him to do so.
So long as the mortgagor has a right to redeem the mortgage fie can always pay off the mortgagee and get back possession.
This position would continue so long as the property is not sold under a final decree for sale under the provisions of 0.
34 C.P.C. [732 D G] Lalchand vs Nenuram, I.L.R. , approved.
Harilal Bhagwanji vs Hemshanker, A.I.R. 1958 Bombay 8, Ramnarain vs Sukhi, A.I.R. 1957 Patna 24, Umeshwar Prasad vs Dwarika Prasad, A.I.R. 1944 Patna 5, Ganpat Ruri vs Mad.
Asraf Ali, A.I.R. 1961 Patna 133 and Jankidas vs Laxminarain, I.L.R. , 'referred to.
(ii) Since the mortgagee had only lost his 'right to recover the money by sale of the mortgaged property, his security otherwise remaining intact, and the mortgagor also continued to have his right to redeem the property, the contention on behalf of the appellant that the rights of the mortgagee merged in the preliminary decree could not be accepted.
[732 H] (iii) If the mortgagee had an independent right on the strength of the rent note which continued to be in force notwithstanding that the period for a final decree for sale had expired, there could be no extinction of his right to sue for possession because of section 28 of the Limitation Act.
[733 C]
|
Appeal No. 328 of 1961.
Appeal by special leave from 'the judgment and order dated February 2, 1961, of the Punjab High Court (Circuit Bench), at Delhi 'in Civil Revision Application No. 135 D of 1957.
Din Dayal Sharma and N, N. Keswami, for the appellant.
K. Daphtary, Solioitor General of India, V. D. Mahajan and T.M. Sen, for the respondent.
September 25.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The principal point which this appeal by special leave raises for our decision relates to the construction of sections 32 and 33 of the (10 of 1940) (hereafter called the Act).
That question arises in this way.
The respondent, Union of India, filed a petition in the Court of the First Class Sub Judge at Delhi against the appellant M/s J. Burman & Co., through its proprietor Jawahar Lal Burman under sections 33 and 28 of the Act.
The respondent alleged that a concluded contract had been entered into between the parties on August 31, 1949 for supply of 170 1/2 Cwt.
of cocoanut oil by the appellant to the respondent.
The respondent had advertised in the Indian Trade Journal for the said supply and the appellant had submitted its tender No. SM I/1104524.
772 This tender was accepted by the respondent which concluded a contract between the parties.
The respondent 's case 'was that the said contract was governed by general conditions of contract Form W. 'S.B. 133.
, These conditions included an arbitration 'agreement, 'Disputes arose between the parties regarding the said contract, and so in pursuance of the arbitration agreement they were referred to the two arbitrators appointed by the parties.
After ,the arbitration propeedings had gone.
on for, a considerable time before the arbitrators the appellant objected to their jurisdiction to , deal.
with the disputes on the ground: that there was No. concluded contract between the parties.
This plea made it necessary for the respondent to move the Court for a decision of the question about the; existence and validity of the arbitration 'agreement.
It, was on these allegations that the respondent in its petition claimed 'that it may, be held that there was a concluded contract between ': the parties containing a valid arbitration agreement.
The petition having been made under section 28 along with section 33 the respondent prayed that suitable extension of time be granted to the Arbitrators for making the, award.
The appellant pleaded in defence that no concluded contract had been made between the parties and that there was no jurisdiction: in the Court to grant extension under s 28.
The, other allegations made by the respondent in its petition were also traversed.
On these pleadings the learned trial judge framed, appropriate issues.
He found that a concluded contract had been proved, between the parties as alleged by the respodent.
that there was a valid arbitration agreement in the said contract and that the Court had jurisdiction, to.
try the petition.
Incidentally, it may be pointed out at this stage that no specific point had been raised in the pleadings of the appellant that, the Court had no jurisdiction to entertain the petition under section 33 or.
section 32 of the Act,.
In fact the trial judge has observed that it was not shown to him how the 773 application was incompetent.
Consistently with the findings recorded by him the learned trial judge declared that there was a concluded contract between the parties under which the matter was duly referred to arbitration through an arbitration agreement clause in the contract.
As a result of the declaration he held that there was a valid reference to arbitration between the parties.
Consequently he granted a month 's time to the arbitrators to make their award.
This decision was challenged by the appellant by its revision petition preferred in.
the High Court of Punjab at Chandigarh.
The High Court has confirmed the finding of the trial court that there was a concluded contract which contained an arbitration agreement.
The question of 'jurisdiction under section 33 of the Act was argued before the High Court and its attention was drawn to the conflict of judicial decisions on.
the point.
The High Court, however, held that since the petition has been filed as a composite application under sections 28 and 33 it was open to the Court under a. 28 to enter upon the question of the existence or validity of the contract and so there was no substance in the point of 'jurisdiction raised by the appellant.
In the result the appellant 's revision application was dismissed.
It is against this decision that the appellant has come to this Court by special leave ; and on his behalf Mr. Din Dayal has raised the same two points for our decision.
He contends that the High Court was in error in holding that the trial court bad jurisdiction to entertain the respondent 's petition, and he argues that even if the point of jurisdiction raised by him fails it should be held that there was no concluded contract between the parties and so.
there was no scop or room for making any reference to arbitration.
The first of these two contentions has been seriously pressed before us.
Before dealing with, the question of jurisdiction it is necessary to recall the material facts which 774 have led to the present dispute.
The appellant and the respondent nominated their arbitrators.
The arbitrators heard the matter at length and the proceedings bad reached a stage when an award might have been pronounced.
It was then that the appellant chose to obstruct the further progress of the proceedings by raising the plea that there was no concluded contract.
Even then he refused to apply under section 33 and so a stalemate issued because the arbitrators ' were not entitled to proceed further with the arbitration proceedings in view of the point raised by the appellant.
It is necessary to bear in mind this background of the dispute in considering the point of jurisdiction.
The question of jurisdiction raised by the appellant has to be answered in the light of the construction which can be reasonably placed on the material provisions of sections 32 and 33 of the Act.
It may be conceded at the outset that the question thus raised presents some difficulty.
Sections 32 and 33 read thus: "32.
Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.
Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient, ' it may set down the application for hearing on other evidence 775 also, and it may pass such orders for dis covery and particulars as it may do in a suit.
" In appreciating the effect of these two provisions it would be relevant to remember that the object of the Legislature in enacting the two sections quite clearly was to prevent the abuse of the process of the Court.
Before the present Act was passed experience showed that unscrupulous and dishonest parties to the arbitration agreements frequently chose to deny the existence of the said agreements even after the arbitration proceedings had concluded and ended in awards and that tended to make all arbitration proceedings futile.
More often than not these pleas ultimately failed but it meant considerable delay and waste of time and substantial expense.
That is why sections 32 and 33 have been enacted with the object of bringing the relevant disputes for decision before the specified Courts in the form of petitions.
It is significant that under s.31(2) of the Act all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court.
Indeed, s.2(c) defines a Court as meaning a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court.
Therefore, stated broadly, it would be correct to assume that the main object of introducing the new provisions of sections 31, 32 and 33 was to entrust the decision of the relevant disputes to the specified Court and to require the parties to bring the ,said disputes for the decision of the said Court in the form of petitions.
Remedy by a regular suit is intended to be excluded.
776 Section 32 creates a bar against the institution of suits, and it provides that if the existence effect or validity of an arbitration agreement or award is in dispute on any ground whatsoever no suit shall lie for the adjudication of the said dispute.
It also provides that no suit shall lie to set aside, amend or modify or in any way affect an arbitration ' agreement or an award.
It would be noticed that the clause "on any ground whatsoever" is very wide and it denotes, inter alia, that if the existence or validity of an arbitration agreement is questioned on any ground whatever it cannot be the subject matter of a suit; the said dispute shall be tried as provided in this Act.
Thus there can be no doubt, that if a party affirms the existence of an arbitration agreement or its validity it is not open to the party to file a suit for the purpose of obtaining a declaration about the existence of the said agreement or its validity.
Such a suit in terms is barred by section 32.
This position is.
not disputed.
The bar to the suit thus created by section 32 inevitably raises the question as to what remedy it is open to a party to adopt in order to obtain an appropriate declaration about the existence or validity of an arbitration agreement; and it is on the decision of this question that the parties are at issue before us.
Before answering this question we may conveniently consider the scope of section 33 and its effect.
Section 33 consists of two parts.
The first deals with a challenge to the existence or validity of an arbitration agreement or an award, and it provides that the persons there in specified can apply to the Court to have a decision on its challenge to the existence or validity of an arbitration agreement or an award.
In other words, there is no doubt that it is only persons who challenge the existence of the arbitration agreement that can apply under the first part of section 33.
This position is also not disputed.
The second part of the section refers to applications made to have the effect of either the arbitration agreement or the award determined.
The question 777 which we have to consider is whether a person affirming an arbitration agreement can apply under the latter part of section 33.
Even assuming that the requirement that an application can be made under the first part of section 33 only by persons desiring to challenge the arbitration agreement does not apply to its latter part, it is difficult to hold that an application to have the effect of the arbitration agreement determined can legitimately cover the dispute as to the existence of the said arbitration agreement.
It is clear that the first part of section 33 refers to the existence or validity in terms and sections 31 and 32 also refer separately to the existence effect or validity.
Therefore, the effect of an arbitration agreement is treated as distinct from the existence of the agreement, and where it was intended to refer to the existence as well as the effect of such an agreement both the words "existence and effect" have been specifically used.
Thus, under the latter part of section 33 an application can be made to have the effect or purport of the agreement determined but not its existence.
That means that an application to have the effect of the agreement can be made provided the existence of the agreement is not in dispute.
Besides, if a person affirming the existence of an agreement is held entitled to apply to the Court under the latter part of s.33 for getting a declaration about the said existing agreement then the first part of section 33 would be wholly superfluous.
Therefore, it seems to us that a party affirming the existence of an arbitration agreement cannot apply under section 33 for obtaining a decision that the agreement in question exists.
In fairness we ought to add that the learned Solicitor General, who appeared for the respondent, did not dispute this position.
If the party affirming the existence of an arbitration agreement cannot apply under s.33 what is the remedy open to him? This question takes us back to section 32.
If section 32 has created a bar against the institution of a suit for obtaining 778 a declaration about the existence of an arbitration agreement, unless it is held that the creation of the said absolute bar itself involves the right to make an application under the Act it would lead to the anomalous result that a party is given no remedy to enforce the right ; and it is an ordinary rule of construction that such an unreasonable and unconscionable result should as far as possible be avoided because the Legislature could not have intended such a result.
In our opinion, having regard to the scheme of sections 31, 32 and 33 it would not be unreasonable to hold that in matters which fall within the bar created by s.32 if a suit cannot be filed it 119 necessarily intended that an application can be made and such an application can be made under the Court 's powers provided for by s.31 and impliedly recognised by section 32.
On this construction section 33 cannot be treated as exhaustive of all cases where applications can be made.
The Legislature has provided for the said cases under section 33 because it was thought that they represented the usual type of cases which arise under the arbitration agreements. 'A contrary view would lead either to a stalemate or would in substance compel the party affirming the existence of an agreement to forego the procedure prescribed by the said agreement and sue on the, contract itself.
We are satisfied that a fair construction of sections 31, 32 and 33 does not lead to such an anomalous position.
Mr, Din Dayal contends that there is really a lacuna in the Act inasmuch as having created a bar by section 32 the Legislature has failed to provide a remedy by way of an application.
On reading sections 31, 32 and 33 together we do not think the Court is driven to the conclusion that there is a lacuna in the Act.
In this connection it is material to remember that even in dealing with applications under the first part of section 33 the Court may accept the opponent 's plea and hold that the arbitration agreement exists if the challenge to the said existence set out in the petition is rejected.
In other words, in many 779 cases applications made under the first part of a. 33 may end in the finding that the arbitration agreement exists.
Similarly, in applications made under s.20 of the Act, if a dispute arose as to the existence of the arbitration agreement the Court may find in favour of the existence and make an order of reference as contemplated by a. 24.
Thus, it is clear that in the applications expressly provided for by these two sections a party affirming the existence of the agreement would be entitled to prove the said existence, and if he succeeds he would obtain a decision to that effect.
Therefore, in holding that section 32 impliedly recognises the inherent jurisdiction of the Court to entertain applications made by the parties affirming the existence of arbitration agreements we are bringing the provisions of s.32 in line with the provisions of sections 33 and 20.
Indeed, section 33 is a corollary of section 32 and in a sense deals by way of illustration with the most usual type of cases arising in arbitration proceedings.
Section 28 of the Act has no material bearing on the decision of this point.
The power to enlarge time for making the award which is the subject matter of the provisions of section 28 cannot be hold to include a power to entertain petitions like the present.
Indeed, the learned Solicitor General has not attempted to justify the conclusion of the High Court that s.28 confers such a power.
Even if it is held that there is inherent jurisdiction in the Court to entertain an application in support of the existence of an arbitration agreement the question still remains whether an application can be made under such inherent jurisdiction for a declaration that the contract which includes the arbitration agreement as defined by section 2(a) includes cases where the arbitration agreement is made a part of the contract itself.
The argument is that though an application may be made under the inherent jurisdiction of the Court to obtain a declaration about the existence or validity of an arbitration agreement, no such application can be 780 made to obtain a declaration about the existence or validity of the main contract itself.
In dealing with this argument it would be necessary to have regard to the substance rather than the form of the matter.
In the present case the respondent claims that there is a concluded contract between the parties and that the said contract contained a valid arbitration agreement.
Looking *at the substance of the matter the prayer was first in regard to the existence and the validity of the main contract leading upto the second and principal prayer that there was a valid arbitration agreement.
Quite clearly the decision of this question cannot depend merely on the words used in the petition.
Where the challenge to the contract made by the appellant in defence to the claim of the respondent is a challenge common to both the contract and the arbitration agreement, the petition, like the One made by the respondent, must in substance be held to be a petition for a declaration as to the existence of a valid arbitration agreement; and a suit to obtain such a declaration is clearly barred by section 32.
Therefore, in our opinion, the fact that an incidental declaration is claimed about the existence and validity of the main contract does not affect the essential character of the application.
It is an application for obtaining a declaration about the existence and validity of an arbitration agreement.
It is true that an arbitration agreement included in the contract itself is in one sense an integral part of the contract and in another sense it may be distinct from it.
As observed by Lord Macmillan in Hayman vs Darwins, Ltd.(1), "the arbitration clause is quite distinct from the other clauses.
The other clauses set out the obligations which the parties undertake towards each other hinc inde; but the arbitration clause does not impose on one of the parties an obligation in favour of the other.
It embodies the agreement on both the parties that, if any dispute arises with regard to (1) section C. at p. 347.
781 the obligations which the one party has undertaken to the other, such dispute shall be settled by a tribunal of their own constitution.
Moreover, there is this very material difference that whereas in any ordinary.
contract the obligations of the parties to each other cannot in general be specifically enforced and breach of them results only in damages, the arbitration clause can be specifically enforced by the machinery of the Arbitration Acts".
It is, therefore, theoretically possible that a contract may come to an end and the arbitration agreement may not.
It is also theoretically possible that the arbitration agreement may be void and yet the contract may be valid; and in that sense there is a distinction between the arbitration agreement and the contract of which it forms a part; but, as we have already pointed out, in the present case, the challenge to the contract itself involves a challenge to the arbitration agreement; if there is a concluded contract the arbitration agreement is valid.
If there is not a concluded contract the arbitration agreement is invalid.
In such a case a prayer for a declaration of the existence of the contract and its validity inevitably leads to the consequential prayer about the existence and validity of the arbitration agreement.
If that is so, a suit cannot lie for a declaration that the arbitration agreement is valid because the prayers that the respondent has made in the present case fall directly within the clause ",on any ground whatsoever".
Indeed, we apprehend that in a very largo majority of cases where the arbitration agreement is a part of the main contract itself, challenge to the existence or validity of one would mean a challenge to the existence or validity of the other.
We would accordingly hold, though for different reasons, that the High Court was right in coming to the conclusion that the petition made by the respondent was competent under section 32 of the Act and has been properly entertained by the trial Court.
782 This question has been the subject matter of some judicial decisions to which reference may now be made.
In Messrs. M. Grulamali Abdulhussain & Co. vs Messrs. Vishwambharlal Ruiya(1) a petition had been filed for a declaration that the respondents had entered into the contract with the petitioners for purchase of 500 bars of silver on or about January 30, 1948 according to the rules and regulations of the Marwari Chamber of Commerce, Ltd., and that the respondents were bound to have all disputes in connection with the same contract decided by the arbitrators as provided by the said rules and regulations.
The competence of this petition and the jurisdiction of the Court to enter tain it were disputed.
Both the learned trial judge and the Court of Appeal rejected the respondents ' contention and held that there was an inherent jurisdiction in the Court to entertain petitions in respect of matters covered by the bar raised by 32.
On the other hand, in Bajranglal Laduram vs Agarwal Brothers(2) as well as in State of Bombay vs Adamjee Hajee Dawood & Co., a contrary view has been accepted.
In the latter case, a suit had been filed on the Original Side of the Calcutta High Court claiming a declaration that a certain contract was not made between the parties and was not binding on the plaintiff.
A further claim was also made that it should be declared that the defendant was not entitled to make any claim in respect of the said contract and that the contract be adjudged void and delivered up as cancelled.
The learned trial judge construed the plaint as one for declaration that the arbitration agreement contained in the contract was invalid and on that view he held that under sections 32 and 33 of the Act the suit was not maintainable.
On appeal it was held that the suit was not one for challenging the validity of the arbitration agreement merely; it (1) 1. L. R. (2) A. I. R. (3) 1.
L. R. 783 covered other reliefs and so bar of sections 32 and 33 could not be pleaded.
We are inclined to think that the decision of the Bombay High Court is substantially correct.
That takes us to the next question as to whether there was a concluded contract between the parties or not.
We have already noticed that in response to the advertisement published by the respondent in the Indian Trade Journal the appellant submitted its tender.
It is common ground that the tender thus submitted was subject to the conditions of contract governing the Department of Supply Contracts which were set out in the Government Publication Form W. section B. 133.
Clauses 4(a) and (b) of these conditions are relevant.
They deal with the security deposit.
Clause 4(a) provides that on acceptance of the tender the contractor shall at the option of the Secretary, Department of Supply and within the period specified by him deposit with him a security deposit therein specified.
Clause 4 (b) provides that "if the contractor is called upon by the purchaser to deposit security and the contractor fails to provide the security within the period, such failure will constitute a breach of the contractor and the Secretary, Department of Supply, shall be entitled to make other arrangements at the risk and acceptance of the contractor".
It is thus obvious that, the tender offered by the appellant submitted to these terms and that on these terms security deposit is a condition subsequent and not a condition precedent.
Clause 4(b) makes it clear that the failure to make the deposit would be a breach of the contract itself.
This position is not disputed; but Mr. Din Dayal contends that this position has been substantially varied by the Form in which the appellant 's tender was accepted by the respondent.
His argument is that the material words used in the acceptance letter changed the preexisting position and made the security deposit a condition.
precedent to the acceptance itself.
If this contention is right it would necessarily mean 784 that there was no concluded contract.
Thus the decision of this point depends upon the construction of the letter of acceptance issued by the respondent to the appellant after receiving its tender.
In this letter written on August 31, 1949 the respondent stated as follows: "Dear Sirs, Ref : Your tender No. and date Nil.
Your offer is hereby accepted for a quantity of 1704 Cwts.
and 2 qrs.
(One thousand seven hundred and four hundred weights and two quarters only) of Oil Cocoanut conforming to specification No. IM.
1370 (d) at Rs. 89/6/ (Rupees eighty nine and annas six only) per Cwt.
packed in non returnable sound, strong 45 gallon drums, delivery ex godown at Calcutta, by 30 9 49 or earlier if possible subject to your depositing 10% as security.
The security money which comes to Rs. 15,230/ (Rupees fifteen thousand two hundred and thirty only) should please be deposited immediately into a Government Treasury in favour of the Deputy Accountant General, I and section, Akbar Road, New Delhi and the Treasury Receipt forwarded to this office.
This security money will be refunded to you after the completion of the contract.
The contract is concluded by this acceptance and formal acceptance of Tender will follow immediately on receipt of Treasury Receipt.
Kindly acknowledge receipt.
Yours etc.
" The whole argument is founded on the use of the clause " 'Subject to your depositing.
10% as security.
" Prima facie this clause may justify the argument that it is intended to make the security deposit a condition precedent; but in construing the true 785 effect of this clause we must look at the whole of the letter bearing in mind the fact that it has been written not by a lawyer or in consultation with a lawyer but by a Government officer in the ordinary course of the discharge of his duties.
The first sentence in the first paragraph clearly shows that the offer was accepted for the quantity therein specified.
The second paragraph calls upon the appellant to see that the specified amount is deposited immediately into the Government Treassury.
This paragraph is more consistent with clause 4(a) of the general conditions.
It reads as if having accepted the tender the appellant is reminded that it has to deposit the amount under the relevant condition, and the letter ends with the categorical statement that the contract is concluded by this acceptance.
Mr. Din Dayal is right when he contends that section 7 of the Contract Act requires that the acceptance of the offer must be absolute and unqualified, it cannot be conditional; but reading the letter as a whole we do not think that the Courts below have erred in Coming to the conclusion that this letter amounts to an absolute and unqualified acceptance of the tender or offer made by the appellant.
While dealing with this question it may be pertinent to recall that the general conditions of the contract prescribed by Form W.S.B. 133 are made a part of the tender, and the contract itself was intended to be executed expeditiously.
The tender shows that the appellant represented that the earliest date by which delivery could be effected would be within twenty days from the date of the receipt of the order and it also said that full quantity of cocoanut oil required was held by it.
Therefore, to begin with the tender treated the security deposit as a subsequent condition, the contract was for the immediate supply of goods and the acceptance purports to be in accordance with the relevant government rules and uses the expression that the contract was concluded by the said acceptance.
Therefore, in our opinion, reading the letter as a whole it would not be possible to 786 accept the appellant 's argument that the letter was intended to make a substantial variation in the contract by making the deposit of security a condition precedent instead of a condition subsequent.
In the result the appeal fails and is dismissed with costs.
Appeal dismissed.
| The petitioners were working as Dalals at New Customs 109 House, Bombay, under licences issued under section 202 of the Sea Customs Act, 1 878.
In 1955 by an amending Act, section 202 was substituted by another section and, by sub s.(1) of section 202 it was enacted : "no person shall act as an agent for the transaction of any business relating to the entrance or clearance of vessel or the import or export of goods or baggage in any custom house unless such person hold '$ a licence granted in this behalf in accordance with the rules made under sub section (2) ".
By sub section
(2) the Chief Customs authority was empowered to make rules for the purpose of carrying out the provisions of the section.
Section 4 provided that "when any person was . authorised by the owner of the goods to be his agent in respect of such goods for all or any of the purpose, of thisAct. such person shall for such purposes be deemed to be the owner of such goods".
The petitioners who, after the enactment of the news.202, had to apply for licences to be granted in accordance with 'the rules framed under sub s(2), challenged the validity of certain of the rules on the ground that they contravened articles 14 and 19 of the Constitution of India and also that they were in excess of the rule making power conferred by s.202 (2).
In particular, they questioned power validity or r. 12 under which inter alia the agent was required to enter into a bond in Form C by which he was made liable for short collection of customs duty under section 39 and also to furnish security which might be increased or decreased by the Customs collector.
Held : (1) that the rules in question though they were headed as framed under section 202 of the , cannot be impugned on the ground that some of them go beyond the special purposes of that section and seek to further some of the general purposes of other parts of the Act, since the Chief Customs authority is also empowered under section 9 of the Act to make.
rules consistent with the Act "generally to carry out the provisions of the Act." (2) that rr. 4 and 8 under which the Customs collector could limit the number of licences to be granted at the Customs House and applications could only be made if the Customscollector published a notice inviting applications, do not contravene article 19 of the Constitution, as they are only designed to advance public interest.
(3) that rr. 6(a) and 6(b) which require the applicant, to furnish to the Custom 's collector satisfactory evidence as to his respectability, reliability and financial status and that he would be in a position to muster sufficient clientel, 110 and business in the event of his being granted the licencee, are reasonable restrictions within the meaning of article 19(6) and are valid.
(4) that cl.
(p) of r. 9(2) whicn requires the licensee to have a working knowledge of the procedure in the matter of refund of claims, appeals and revision petitions under the , is valid, since it is necessary where an, agent handles goods of the principal.
(5) that r. 10 (1)(c) which gives the Customs collector a wide discretion to reject an application for the grant of a licence, if he considers the applicant to be not suitable, is an unreasonable restriction upon the right of the successful candidate to carry on his avocation, and is invalid.
If a candidate is found fit under the other rules and has successfully passed the examination, he should only be rejected under a rule which requires the Customs collector to state his reasons for the rejection, and the rules must provide for an appeal against the order.
(6) that r. 11, in so far as it prescribes a renewal fee of Rs. 50,is invalid inasmuch as it has thereby provided not for a fee but for a tax to raise revenue.
It would be open to the Government to frame a rule in which the renewal fee to be charged is reasonable in the circumstances.
(7) that rr.
15(g), 15(k), 17 and 19, are designed to have a control over agents, including firms which act as agents, who stand in a fiduciary capacity both in regard to their own clients and the Government, and are valid.
(8) that r, 22 which enables the Customs collector to cance a licence for non compliance by the agent with the other rules or for misconduct on the part of the agent, which in the opinion of the Customs collector, renders him unfit to transact business in the Custom House, is within the rule.
making power of the Customs authorities and is valid.
(9) that the words "the person chargeable with the duty or charge" in section 39(1) of the.
Act are wide enough.
in their ambit to take in, not only the, real owner but also a "deemed owner" within the meaning of s.4 of the Act.
(10) that on its true construction of s.39(1) it is only the goods of the defaulting owner in respect of Which, the agent is also the deemed owner that would suffer the penalty of detention, but not the goods of a different owner, 111 even though the agent may be authorised to deal on his behalf.
(11) that r. 12 read with Form C, which makes an agent liable for short collection of customs duties under section 39, is valid and the rule is not invalid on the ground that it enables the Customs authorities to make a proper adjustment of the security to be obtained from each individual agent commensurate with the volume and type of business which he might transact.
Held, further (Subba Rao, J. dissenting,) that r. 6(c), which requires the applicant to produce an income tax clearance certificate, is connected with the enquiry into his respectability and financial status to find out if fie can be trusted with other persons ' money and goods, and is valid.
K. Raman and Co. vs State of Madras, A. I. R. 1953 Mad.
84, distinguished.
Per Subba Rao, J. Non production of an income tax clearance certificate is not germane to the issue of a licence under the Custom House Agents Licensing Rules, 1960, and the principle in K. Raman and Co. vs State of Madras, A. I.R. , is applicable.
Accordingly, r. 6(c) constitutes an unreasonable restriction on the right of an applicant to do business as Custom house agent, and is invalid.
|
No. 847 of 1987.
(Under Article 32 of the Constitution of India).
Rajinder Sachar, K.R. Nagaraja, P.K. Rao, R.S. Hegde, V.A. Babu and R. Rajappa for the Petitioners.
K.N. Bhat, Vijay K. Verma and Ms. Madhu Moolchandani for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This Petition under Article 32 of the Constitution of India has been filed by the Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association representing the interest of Scheduled Castes and Scheduled Tribes Employees of the Syndicate Bank all over India as well as by three other Assistant Managers of the Syndicate Bank.
The case as set up in the petition is that Group 'A ' Officers posts which are Class I posts contain different grades called Junior Management Grade Scale I, Middle Man agement Grade Scale II, Middle Management Grade Scale III and like this upto Grade Scale VII.
The criteria for promo tions from Junior Management Grade Scale I to Middle Manage ment Grade Scale II and so on is based on a promotion policy dated 17.9.1985 flamed in this regard by the Bank.
According to the petitioners the Syndicate Bank is a Nationalised Bank owned and controlled by the Central Government.
All the policy decisions and major internal administration are regulated and governed by and under Rules issued by the Central Government from time to time.
In order to implement the principles enshrined in the Constitution of India grant ing benefit to members belonging to Scheduled 716 Castes and Scheduled Tribes, the Central Government evolved the concept of quota system in the ratio of 15% and 7 1/2% reservation for Scheduled Castes and Scheduled Tribes re spectively both at the time of recruitment as well as at the time of promotions in all Government organisations.
It has been further alleged by the Petitioners that 14 leading banks of the country were nationalised in the year 1969 and the Government ought to have extended the said policy of reservation in the banking sector also w.e.f. 1969.
However, the reservation policy was extended to the banking industry initially in the year 1972, but that re mained restricted in respect of appointments made by direct recruitment only.
Later on by a D.O.
Letter No. 10/24/74 SCT (B) dated 31.12.1977 the Central Government called upon the banks to implement the reservation policy in the matter of promotions posts also.
In the matter of promotions within the Officers cadre, the respondent bank did not maintain any roster and did not follow the reservation policy on an erroneous impression that the reservation in promotional cadres made through selection method is barred.
The peti tioners in this regard have submitted that by an Officer Memorandum issued by the Home Ministry as long back as on 26.3.1970 clearly provided reservations for Scheduled Castes and Scheduled Tribes Officers for their promotion within Class I posts and also in cases of Officers who drew a basic pay of Rs.2,000 per month or less.
Subsequently Department of Personnel and Administrative Reforms also issued an O.M. No. 1/10/ 74 Esstt (SCT) dated 23.12.1974 to all Ministries on.
the same lines as contained in the earlier O.M. issued by the Ministry of Home Affairs dated 26th March, 1970.
The Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) issued a Circular dated 30th May, 1981 addressed to all the 26 Nationalised Banks existing at that time in the matter of reservation for Scheduled Castes and Scheduled Tribes in respect of promo tion.
In the aforesaid letter after making a reference to the Department 's letter D.O. No. 10/24/75 SCT (B) dated 31.12.1977 Ministry of Home Affairs O.M. No. 1/9/69 Esstt (SCT) dated 26.3.1970 and Department of Personnel and Admin istrative Reforms O.M. No. 1/10/74 Esstt (SCT) dated 23.12.74 it was stated that as per the above Government orders there is no reservation for Scheduled Castes and Scheduled Tribes in 'Promotion by Selection ' within the Officers cadre.
It was further stated in the above circular that certain concessions and facilities are to be provided to the Scheduled Castes and Scheduled Tribes Officers in order to improve their chances for selection to the Higher categories of posts in the Officers cadre in accordance with the orders contained in the 717 aforesaid O.Ms of Ministry of Home Affairs.
It was further stated that it has been decided that the concessions men tioned in Para 2 of Home Ministry 's Office Memorandum dated 26.3.1970 would be available to the SC/ST Officers in Public sector Bank/Financial Institutions in 'Promotions by Selec tions ' to posts within the Officers cadre upto Scale III.
All the banks were requested to implement the Government instructions contained in the Officer Memorandums of Minis try of Home Affairs and Department of Personnel and Adminis trative Reforms dated 26.3.1970 and 23.12.1974 respectively in the existing scheme of promotions with such procedural modifications as may be necessary.
The case of the petitioners further is that the Central Government wrongly and erroneously interpreted the above circulars and in taking the view that there was no reserva tion in the promotional posts within the officers cadre.
In identical circumstances the Ministry of Steel and Mines in a letter dated April 8, 1982 addressed to the Chairman of the Steel Authority of India Limited and letter dated August 19, 1982 from the Steel Authority of India to the Chief Person nel Manager Bokaro Steel Plant took the view that the Sched uled Castes and Scheduled Tribes personnel were not entitled to the benefit of reservation in the matter of promotion of selection posts within Group 'A '.
The Bihar State Harijan Kalyan Parishad came before this Court by special leave challenging the above view taken by the Steel Authority of India and the Union of India.
This court in Bihar State Harijan Kalyan Parishad vs Union of India & Ors., ; granted special leave.
This Court held in the above case that a close perusal of the directive and in particular paragraph 9 which dealt with the concessions to employees of Scheduled Castes and Scheduled Tribes in promotions by selection method makes it abundantly clear that the rule of reservation is also applicable to promotions by selection to posts within Group 'A ' which carry an ultimate salary of Rs.2250 per month or less but the procedure is slightly different than the case of other posts.
It was further held in the above case that while the rule of reservation applies to promotions by selection to posts within group 'A ' carry ing a salary of Rs.2250 per month or less, it is prescribed that only those officers belonging to the Scheduled Castes and Scheduled Tribes will be considered for promotion who are senior be within the zone of consideration.
Thereafter a Select List depending upon the number of vacancies would be drawn up in which also those officers belonging to Scheduled Castes and Scheduled Tribes would be included who are not considered unfit for promotion.
Their position in the Select List would be that assigned to them by the 718 departmental Promotion Committee on the basis of the record of service.
In other words their inclusion in the Select List would not give them seniority, merely by virtue of their belonging to the Scheduled Castes and Scheduled Tribes over other officer 's placed above them in he Select List made by Departmental Promotion Committee.
The court bus quashed the List dated April 8, 1982 and August 19, 1982 and directed the respondents to give effect to paragraph 9 of the Presidential directive w.e.f.
the date of the directive.
Subsequently a Miscellaneous Petition No. 3637/86 was also filed in view of a misunderstanding of the above Judgment by the Authorities.
The Court by order dated 21st January, 1987 deciding the above miscellaneous petition and made the following observations: "We wish to clarify the position by stating that the Sched uled Castes/Scheduled Tribes Officers who are senior enough to be within zone of consideration for promotion should be included in the Select List against the vacancies available to the members of Scheduled Castes/ Scheduled Tribes accord ing to the rosters, provided they are not considered unfit for promotion.
Paragraph 2 of the Presidential Directive should be strictly adhered to and effect shall be given on the basis of scales of pay that obtained prior to 1975 as mentioned in that paragraph.
The officers promoted as a consequence of our order will be entitled to be paid salary and allowances from the respective dates with effect from which they should have been promoted." After the above decision of the Supreme Court which applied in all force to the case of the present petitioners, a meeting took place between the representatives of Syndi cate Bank SC/ST employees Association and the Management of Syndicate Bank on 16th and 17th April, 1986.
In the afore said meeting the representatives of the management were fully convinced with the stand taken by the representatives of Syndicate Bank SC and ST employees Association and after agreeing in principle, they assured to take up the matter very strongly again with the Government of India, Ministry of Finance (Banking Division) for their approval.
The peti tioners thereafter made frantic efforts and also submitted representations but no relief was granted to the petition ers.
It may be mentioned that Minister of State for Finance, Government of India in his letter dated November 22, 1986 addressed to Shri Banwarilal Bairva Member of Parliament clearly admitted as regards the reservation for SC/ST em ployees in Indian Overseas Bank that he had checked up his reply to the Lok Sabha 719 starred question No. 342 answered on 5th August.
1986 and had" ' got further clarifications from the bank of the subject.
It was further stated in the above letter as fol lows: "In respect of promotions.
the bank was maintaining rosters for only such category of posts to which the reservations were being applied by the bank.
Since as per the Brochure on reservations for SCs/STs are available in promotions within the officers cadre only if they are based on seniority, and the bank considered the method of promotions followed by it as one based on selection.
it did not consider maintenance of rosters necessary.
During the course of discussions between the officials of the bank and Banking Division, it was revealed that the procedure followed by the bank for effecting promotions within the officers cadre was the one falling within the categorisation of seniority.
The bank was immediately advised to maintain rosters even for these promotions within the Officers cadre and to provide for reservations for the SCs/STs.
The bank has accepted its mistake and has already agreed to provide for reservations and also to calculate the backlog from 1978 when the reser vations in promotions were first introduced in the banks.
" It may be also mentioned that the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) vide letter No. F. No. 10/72/86 SCT (B) dated 28.11.1986 addressed to all the nationalised banks also clarified the position in regard to reservations for SC/ST in promotions as under: "It may be recalled that instructions were issued by the Government on 3.5.1980 advising bank to apply the provisions of carry forward interchange, and lapsing of vacancies in promotions also because of certain factors even though strictly speaking these provisions are not applicable to promotions by selection.
In doing so, the posts filled by selection method were specifically categorised as those where promotions are made on the basis of a written examina tion followed by interview and/or on the basis of the inter view.
On the other hand promotions based on the assessment of the confidential reports of the officers were classified as those based on seniority, subject to fitness.
The banks are, therefore, requested to review the method 720 of promotions followed by them and ensure that wherever the rosters are to be maintained for determining the number of vacancies reserved for SC/ST.
This is done scrupulously.
The results of the review may be intimated to the Government by 15th December, 1986.
While intimating the information, the methodology adopted for effecting promotions from various cadres/scales should be specifically intimated".
The grievances of the petitioners is that despite the aforesaid unequivocal directions from the Government, the bank failed to make reservations for the Scheduled Castes/Scheduled Tribes employees.
The petitioners made representations to the respondents in this regard in which it was reiterated that after decision of the Supreme Court in Bihar State Harijan Kalvan Parishad vs Union Of India & Ors., (supra) and further order of clarification dated 21st January, 1987, the petitioners were entitled to the same treatment.
However the grievances of the petitioners were not redressed and a view was taken by authorities of the respondent/bank that there was no direction for the Govern ment of India for prescribing reservation policy for offi cers cadre and that they were following the selection method or promotion in the case of Officers posts.
The Union of India flied a counter affidavit contesting the stand taken by the petitioners.
So far as the bank is con cerned they did not any separate reply in detail but took the stand that the Syndicate banks was a Nationalised bank and was under the Administrative control of the Government of India, Banking Division as such the bank is guided in the discharge of its functions by any directions issued by B anking Division, Ministry of Finance, Government of India from one to time.
Reference was made to Regulation 17(1) according to which promotions to all grades of officers in the Bank were required to be made in accordance with the policy laid down by the Board from to time having regard to the guidelines of the Government, if any.
in view of these circumstances it was stated in the counter affidavit that they fully adopt all the submissions of fact and law made by the Government of India in its counter affidavit.
We have heard Mr. R. Sachar, Learned counsel for the peti tioner.
K.N. Bhat, for the Syndicate Bank and Mr. R. Rajap pa, for the Union of India.
It may be stated at the outset that though the union of India in its reply had taken several grounds for contesting the petition, but the Learned Counsel appearing for the Union of 721 India conceded before us and made a statement that he was not pressing the grounds taken in the counter affidavit filed by the Union of India and they would abide by any directions given by this Hon 'ble Court.
Mr. Bhat appearing on behalf of the Bank also submitted that the Bank was bound by the decisions taken by the Government of India, Ministry of Finance Banking Division and the Bank was not at fault in not granting relief to the petitioners in as much as the Government of India was not clear in its policy of reserva tion.
The attitude of the Government of India is clearly discernible from its counter affidavit filed in the present case.
It was thus prayed that this Hon 'ble Court should not hold the Bank responsible for not granting an appropriate relief to the petitioners at its own end and for dragging the petitioners unnecessarily in this litigation.
Mr. Sachar contended that the Ministry of State for Finance, Government of India in his letter dated November 22, 1986 addressed to Shri Banwari Lal Bairva Member of Parliament made it clear that during the course of discus sions between the officials of the bank and banking division regarding reservations for SC ST employees of the Indian Overseas Bank, it was revealed that the procedure followed by the bank for effecting promotions, within the officers cadre was the one falling within the categorisation of seniority.
The bank was immediately advised to maintain rosters even for these promotions within the officers cadre and to provide for reservations for the SCs STs.
It was further mentioned in the above letter that the bank accepted its mistake and had already agreed to provide for reserva tions and also to calculate the backlog from 1978 when the reservations in promotions were first introduced in the banks.
In another letter issued by the Banking division of the Ministry of Finance dated 28.11:86 addressed to the Chairmen and Managing Directors of 20 nationalised banks it was mentioned as under: "It may be recalled that instructions were issued by the Government on 3.5.80 advising banks to apply the provisions of carry forward, interchange, and lapsing of vacancies in promotions also because of certain factors even though strictly speaking these provisions are not applicable to promotions by selection.
In doing so, the posts filled 'by selection method were specifically categorised as those where promotions are made on the basis of a written examina tion followed by interview and/or on the basis of the inter view.
On the other hand promotions based on the 722 assessment of the confidential reports of the officers were classified as those based on seniority subject to fitness.
" The banks were, therefore, requested to review the method of promotions followed by them and ensure that wher ever the rosters are to be maintained for determining the number of vacancies reserved for SC/ST, this be done scrupu lously.
Mr. Sachar brought to our notice the promotion policy in respect of officers of the Syndicate Bank issued on 17.9.85 annexed with the writ petition as Annexure L at point number 3 follows: 3. "The Promotion Policy identifies the following four factors as relevant for ascertaining the suitability of officers for promotion from one scale to another: (a) Seniority for promotions upto SMGS IV (b) Educational and Professional Qualifications for movement to Middle Management Grade Scale II only.
(c) Performance in the grade/scale.
(d) Potential as identified in the interview for movement to Middle Management Grade Scale III and above".
It was thus submitted that from a reading of the two letters dated 22.11.86 and 28.11.86 together with the promo tion policy issued by the Syndicate Bank it was clear that for promotions from one scale to another upto SMG IV was based on seniority and the Syndicate Bank as such ought to have made promotions upto SMGS IV by giving benefit of reservation to SC/STs in the employment of the bank.
It was also contended by Mr. Sachar that upto 1979, the Syndicate Bank made promotions of officers from one scale to another purely on the basis of officers completing five years of service as on 31st December of previous year.
No promotions were made in 1979, 1980 and 1981.
Since 1982 the promotions within the officers cadre were being made on the basis of the following policy: The minimum eligibility service and factor weightage shall be as follows: 723 Movement Minimum Points Points Maximum Maximum from eligibility for the points points service as senio educa for for on 31st rity tional perfor potential December & Profe mance as iden of Previous ssional in the fied in Year qualifi scale the inter cation view JMGS to 7 years in 60 10 30 Nil MMGS II JMGS I MMGS II 5 years in 50 30 20 to MMGS MMGS II III MMGS III 5 years in 20 50 30 to SMGS MMGS III IV SMGS IV 3 years in 60 40 to TEGS V SMGS IV SMGS V to 2 years in 60 40 TEGS VI SMGS V TEGS VI to 3 years in 60 40 TEGS VII TEGS VI It was contended that from the above policy, it would be clear that there was no written test and interview for promotions from Gr.
I to Gr.
II and that 60% of the marks had been fixed for seniority.
The above policy further makes it clear that the seniority was considered a predominant factor.
The Government of India in its office memorandum dated 27.11.72 had provided for reservation of 15% and 71/2% for SC and ST candidates respectively, and the Government of India Banking Division, had made the reservation policy applicable in the case of promotional posts also vide its D.O. Letter No. 10/24/74 SCT (B) dated 31.12.77.
Thus, there remains no ambiguity and the respondent bank ought to have given benefit of reservation policy from 1st January, 1978 to the members of SCs/STs in the cadre of officers.
Mr. 724 Sachar also submitted that as already mentioned above in the matter of employees of the Indian Overseas Bank rosters for calculating the vacancies reserved for the SCs/STs had been applied in the case of promotions within the officers cadre.
It was further argued that the principle of contemporanea ex position i.e. interpreting the statute or any other document by reference to the exposition it has received from contem porary authority, has to be applied in case of employees of the Syndicate Bank also while effecting promotions within the officers cadre.
Reliance in support of the above conten tion is placed on Desh Bandhu Gupta & Company & Others vs Delhi Stock Exchange Assn.
Ltd.; , We find no force in the above contention of Mr. Sachat.
A perusal of the promotion policy goes to show that for the purpose of promotions in the cader of officers from JMGS to MMGS II and from MMGS II to MMGS III and then upto scale VII, is not based on seniority alone.
Apart from the points for seniority other factors based on selective process were also important and as such it cannot be held that such promotions in the higher scale were based solely on seniori ty.
A perusal of the criteria laid down in the promotion policy already extracted above clearly goes to show that apart from points for seniority, points for educational and professional qualification, points for performance in the scale and points for potential as identified in the inter view have also to be assessed while making appointment by promotion.
Merely because in the case of promotion from JMGS to MMGS II points for seniority being mentioned as 60, it cannot be said that such promotion in scale II may be con sidered as promotion otherwise than by the method of selec tion.
In our view unless the promotion is based on seniority alone and other factors based on merit such as educational and professional qualifications, performance in the scale, written examination or interview have no material bearing it cannot be considered as a promotion based on seniority.
A perusal of the policy shows that it is a hybrid system of promotion in which upon scale IV points are given for sen iority as well as for other factors also which are based on a sort of selection process depending upon the educational qualifications, performance in the scale and interview.
While in the case of promotion from scale IV to scale VII there are no points given for seniority at all.
Thus taking in view the entire scheme of promotion policy, we think that promotions in the officers cadre from JMGS I to Scale VII shall be considered as promotions on selection basis.
Howev er the rule of reservation for SCs/STs will apply to ap pointments made by promotion on selection basis, subject to a procedure somewhat different from usual procedure adopted in filling up 725 posts reserved for SCs and STs on selection basis alone for appointments to be made by direct recruitment.
Mr. Sachar then submitted that in case the above policy of promotion is not considered as based on seniority, or otherwise than by selection, the petitioners are to be governed by the principles already laid down in Bihar State Harijan Kalyan Parishad vs Union of India & Ors., (supra).
It was contended that in identical case though relating to employees of Steel Authority of India Ltd., this Court interpreted paragraph 9 of the Presidential directive in the case of promotions within group 'A ' which provided as under: "In promotions by selection to posts within Group 'A ' which carry an ultimate salary of Rs.2250 per month, or less, the Scheduled Caste/Scheduled Tribe officers, who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the Select List has to be drawn up, would be included in that list provided they are not considered unfit for promotion.
Their position in the select list would, however be the same as assigned to them by the Departmental Promotion Committee on the basis of their record of service.
They would not be given, for this purpose one grading higher than the grading otherwise as signable to them on the basis of their record of service".
It was held in the above case that a close perusal of the directive and in particular paragraph 9 which deals with "concessions to employees of SC/ST in promotions by selec tion methods" 'makes it abundantly clear that the rule of reservation is also applicable to promotion by selection to posts within group 'A ' which carry ultimate salary of Rs.2250 per month or less but that the procedure is slightly different than in the case of other posts.
We find force in this alternative submission made by Mr. Sachat.
Even though the promotional posts are based on selection method, the rule of reservation will apply to posts within group 'A ' and the benefit of reservation policy to members of SC and ST cannot be denied on the ground that promotional posts are to be filled by method of selection.
We find no distinction in the case of employees in the officers group in JMGS I of the Bank from the officers falling in group 'A ' under the Steel Authority of India Ltd., for the purpose of applying reservation policy.
Gov ernment of India committed a clear mistake in 726 not applying the principle already decided in Bihar State Harijan Kalyan Parishad 's case (supra) to the employees of the Syndicate Bank and in not giving a clear direction in this regard to the management of Syndicate Bank.
There can be no manner of doubt that the management of the Syndicate Bank was not at fault as they were bound by the instructions and policy laid down by the Banking division of the Finance Ministry of the Government of India and in the absence of a clear direction from the Government of India, it was not possible for them to grant relief to the SC/ST employees of the bank.
As already mentioned above the Union of India had wrongly taken a contrary stand in its counter filed to the present petition, and clearly in derogation to the principle already decided in the case of Bihar State Harijan Kalyan Parishad, (supra) by this Court.
In the result this petition is allowed.
The orders of the respondents dated 15th June, 1987 and 25th June, 1987 are declared as illegal.
It is further decided that though group 'A ' posts are selection posts still the reservation policy is applicable to such posts and the respondents are directed to compute the backlog of untilled reserved quota available to the SC/ST officers in the promotional posts with effect from 1.1.
1978, the date of introduction of reservation policy in the respondent bank.
The respondents are further directed to grant promotion to the SC/ST employ ees of the Syndicate Bank with all consequential benefits of salary and allowances from the respective dates w.e.f. which they should have been promoted, after applying the roster system in their favour.
We grant three months ' time to carry out these directions.
The petitioners would be entitled to costs to be paid by the respondent Union of India.
R.N.J. Petition allowed.
| Section 3 of the Uttar Pradesh Urban Planning and Devel opment Act, 1973 provides for declaration of an area to be a 'development area ' by gazette notification.
Section 14(1) of the Act interdicts development of land in such an area by any person or body unless permission has been obtained from the Vice Chairman of the Development Authority.
Section 15(1) requires every person or body desirous of obtaining permission to make an application in the manner prescribed.
Section 15(3) empowers the Vice Chairman, after making such an enquiry as he considers necessary, either to grant the permission subject to such conditions as he may specify, or refuse the permission.
Section 15(5) provides for an appeal to the Chairman against an order made by the Vice Chairman refusing permission.
Section 37 inter alia makes an order of the Vice Chairman made under section 15 final.
Section 41(1) makes it incumbent on the Authority (the Chairman or the Vice Chairman) to carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of the Act.
Section 41 (3) confers revisional powers on the State Government.
The respondent lessees applied to the appellant Develop ment Authority under section 15(1) of the Act for permission to put up a multistoreyed building on the demised plot.
The Vice Chairman of the Authority sanctioned the permission by his order dated January 31, 177 1985.
However, on July 24, 1985 the State Government issued directions purporting to be under section 41(1) of the Act inter dicting the progress of construction on ground of violation of the conditions of the lease.
The High Court allowed the writ petition preferred by the respondents and quashed the said directions.
Thereafter, on August 12, 1985 the State Government brought to the notice of the Vice Chairman serious illegali ties in the building sanction and indicated that the same he reviewed and revoked, to which he did not agree.
Finally, by its communication dated October 15, 1985 addressed to the Chairman of the Authority the State Government directed him to initiate immediate proceedings against the respondents for making misrepresentations, fraudulent statements and concealing material facts in obtaining building permission.
To that letter was annexed a notice for service on the lessees and the builder associated with construction to show cause for cancellation of the lease and demolition of unau thorised construction.
The respondents filed their objec tions against the proposed cancellation, but the Government by its order dated November 19, 1985 found the explanation unacceptable and proceeded to terminate the lease.
This order was challenged by the respondent lessees in a writ petition before the High Court.
Subsequently, the Vice Chairman of the Authority in a separate action issued notice dated January 9, 1986 to the respondents to show cause why the building permission grant ed on January 31, 1985 should not be cancelled.
Respondents objected to the proposed action but the Authority found the objections unacceptable and proceeded by its order dated April 19, 1986 to cancel the permission.
The two lessees challenged this cancellation in writ petitions before the High Court.
The High Court found that the proceedings initiated and the action taken by the Government and the Vice Chairman of the Authority in the matter, respectively, of forfeiture of the lease and the cancellation of the permission to build were both infirm in law and required to he quashed.
It took the view that a reasonable opportunity of being heard had been denied to the lessee respondents, and that the grounds for forfeiture of the lease were irrelevant and illusory; that there was no provision in the Development Act confer ring powers on the ViceChairman to review the decision in the matter of sanctioning a plan to build after the same was acted upon and constructions were being made only in accord ance with it; that section 41(1) of the Act could authorise the Vice Chairman to review the earlier permission but that there being no such directive from the Government the Vice Chairman acting as a 178 statutory authority had no power to revoke or cancel the permission once granted, and that there was no casual con nection between the Government 's directive dated October IS, 1985, which had confined itself to the cancellation of the lease, and the proceedings initiated by the Vice Chairman on January 9, 1986.
It further found that as personal hearing has not been given to the petitioners the order passed by the Vice Chairman violates the principles of natural justice and that the grounds alleged were not sufficient to sustain the cancellation of the permission.
In the appeals by special leave preferred by the State Government in the matter of forfeiture of lease, it was contended for the appellants that the High Court fell into an error in allowing a matter, which should properly have been the subject matter of a civil suit, to be agitated in proceedings under Article 226 of the Constitution.
The submission was that the question whether there were breaches of covenants on the part of the lessees involved the con struction of the terms of the lease deed which required evidence on the matter and such a dispute could not be resolved on mere affidavits, and that the relationship between the parties being one of lessor and lessee the dispute between them pertained to a private law situation.
It was also submitted that no hearing could be contemplated in the context for forfeiture of a lease of this nature.
For the respondents it was contended that the State, even as a lessor, could not act arbitrarily either in the grant or premature termination of the leases of public property and disputes arising in such context cannot always be reckoned as private law situations, and that at all events, the threatened exercise of extra judicial re entry by the State, being violative both of the limitations of the powers of the State as lessor under the law of landlord and tenant and or its actions as State, was a matter which required to be mandated against.
In the appeals by special leave by the Development Authority in the matter or cancellation of permission to build, it was contended for it that the order dated April 19, 1986 itself disclosed the extent or opportunities af forded to the lessees and there could, therefore, be no question of failure or natural justice, that if permission had been obtained by the lessees by misrepresentation or fraud or, if after obtaining the permission there had been violation of the terms and conditions or the grant, as in the instant case, the statutory authority granting the permission has itself the inherent and incidental and sup plemental powers to revoke the permission, and that no express grant of power in this behalf was necessary.
For the respondents it was contended that the proceedings for can cellation of the permission having been initiated at 179 the instance of and compelled by the directions issued by the Government purporting to act under section 41(1) of the Act there was a surrender of statutory discretion on the part of the Vice Chairman thereby vitiating the decision; that the Vice Chairman had no authority in law to cancel the permis sion, that the power to cancel or revoke a licence or per mission, even assuming_ that the statute enables such can cellation, was clearly distinguishable from the power of refusal of an initial grant and that the exercise of power of cancellation which prejudicially affects vested fights partakes predominantly of quasi judicial complexion; and that as there was denial of a reasonable opportunity of being heard the order passed by the Vice Chairman violates the principles of natural justice.
Allowing appeals by the State, HELD: 1.
The question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed by the High Court to he agitated under Article 226 of the Constitution since it involved resolution of disputes on questions of fact as well.
[191C] Express Newspapers vs Union of India, [1985] Suppl. 3 SCR 382, referred to.
A lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise.
The use of the expression 're entry ' in the lease deed does not authorise extrajudi cial methods to resume possession.
Under law the possession of a lessee, even after the expiry or its earlier termina tion is judicial possession and forcible dispossession is prohibited.
He cannot, therefore, be dispossessed otherwise than in due course of law.
[191F G] In the instant case, the fact that the lessor is the State does not place it in any higher or better position.
On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and governmental authorities should have a 'legal pedigree '.
The State Government is, accordingly, prohibited from taking possession otherwise than in accordance with law.
[192C] Bishandas vs State of Punjab, ; , referred to.
The question of the legality and validity of the purported cancella 180 tion of the lease and the defence of the lessees is left open to be urged in appropriate legal proceedings, whenever and wherever Government proceeds to initiate action in accordance with law for resumption of possession.
[192D E] Partly allowing the appeals by the Development Authority, HELD: 1.1 The Vice Chairman, for purposes of section 15(3) of the Act is a distinct statutory authority with statutory powers of his own distinct from Development Authority, which under section 4(2) is a body corporate having perpetual succes sion and common seal.
[197C D] 1.2 An order made by him under section 15(3) of the Act granting permission is not one of the orders revisable by Government under section 41(3).
Such an order, under the scheme of the Act, is not also appealable but assumes a finality contemplated by section 37.
[197F G] 1.3 The power of control of the State Government under section 41(1) consistent with the scheme of the Act, cannot be construed as a source of power to authorise any authority or functionary under the Act to do or carry out something which that authority or functionary is not, otherwise, competent to do or carrying under the Act.
The section is not a Super Henry VIII clause for the supply or source of additional provisions and powers not already obtaining under the Act.
[198A B] 2.1 The view of the High Court that in the absence of a directive or authorisation from the Government under section 41(1), the ViceChairman, acting as the statutory authority dispensing permissions for development under the Act, cannot revoke or cancel a permission once granted is clearly erro neous.
[198F] 2.2 The grant of permission is part of or incidental to the statutory power to regulate orderly development of the 'development area ' under the Act under regulatory laws.
The power to regulate with the obligations and functions that go with and are incidental to it, are not pent or exhausted with the grant of permission.
The power of regulation which stretches beyond the mere grant of permission, takes within its sweep the power, in appropriate cases, to revoke or cancel the permission as incidental or supplemental to the power to grant.
Otherwise, the planitude of the power to regulate would be whittled own or even frustrated.
[198F H] 2.3 The power to grant, where the grant is itself vitiated by fraud 181 or misrepresentation on the part of the grantee at the time of obtaining the grant, or where the grantee, after the grant violates the essential terms and conditions subject to which grant is made, must therefore, be held to include the power to revoke or cancel the permit, even in the absence of any other express statutory provisions in that behalf.
The grounds must, of course, be such as would justify such drastic action.
This cancellation is a preventive step.
There may, however, be cases of the third kind where the grant may be voidable at the instance of the Development Authority or otherwise entitling the Development Authority to initiate appropriate declaratory or other action to get rid of the effect of the permission.
[199G H; 200A B] 2.4 It is erroneous to equate the powers under sections 14 and 15 of the Act with judicial power which, in the absence of express provisions, could not enable the review of a judicial order after its exercise on the principle of func tus officio.
[198H; 199A] Sardul Singh vs The District Food and Supplies Control ler, Patiala and O rs.
, W.P. No. 126 of 1962 decided on December 19, 1962 referred to.
The power of revocation or cancellation of the per mission is akin to and partakes of a quasi judicial complex ion.
In exercising the power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consist ent with the principles of natural justice.
The authority cannot permit its decision to be influenced by the direction of others as this would amount to abdication and surrender of its discretion.
It would then not be the authority 's discretion that is exercised, but someone else 'section If an authority hands over its discretion to another body it acts ultra vires.
Such an interference by a person or body extra neous to the power would plainly be contrary to the nature of the power.
conferred upon the authority.
[200B D] Judicial Review of Administrative Action by S.A. de Smith referred to.
In the instant case, however, there was no such surren der of discretion by the Authority.
The directive from the Government dated August 12, 1985 had spent itself out with the then the Vice Chairman declining to act in accordance with it.
The directive dated October 15, 1985 confined itself only to the cancellation of the lease and as inciden tal thereto, required the stoppage of work pending decision whether the lease should be cancelled or not.
[201B D] 182 4.1 It not unoften happens that what appears to be a judicial review for breach of natural justice is, in reali ty, a review for abuse of discretion.
[201H] 4.2 Judicial review under Article 226 cannot be convert ed into an appeal.
Judicial review is directed, not against the decision, but is confined to the examination of the decision making process.
[202B] 4.3 When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination as a matter of law, of the relevance of the factors.
In the instant case, it is, however, not necessary to go into the marits and relevance of the grounds.
[202F H] Chief Constable of the North Wales Police vs Evans, ; referred to.
There has been a denial of natural justice in the proceedings culminating in the order of cancellation.
The show cause notice itself is an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia.
On a matter of such importance where the stakes are heavy for the lesses who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity, the statutory authority should, in the facts of the case, have afforded a personal hearing to the lessees.
Both the show cause notice dated January 9, 1986 and the subsequent order dated April 19, 1986 cannot, therefore, be sustained.
[203B D] It is left open to the statutory authority, should it consider it necessary, to issue a fresh show cause notice setting out the precise grounds, and afford a reasonable opportunity, including an opportunity of personal hearing and of adducing evidence wherever necessary to the respond ent lessees.
In view of this liberty, reserved to the au thority, the finding recorded by the High Court on the merits of the grounds is set aside.
[203D E]
|
3 86, 471 Of 1980 etc (Under Article 32 of the Constitution) section Rangarajan, S.C. Misra, M.S. Batta, Miss Kailash Mehta, Mrs. M. Quamruddin, B.B. Tawakley, Shrinath Singh, Mohan Pandey, Rajiv Datta, Miss Renu Gupta, K Garg, Mr. S.R. Shrivastava, D.R. Gupta, B.R. Kapoor, B.P Maheshwari, R.B. Dattar, K.B. Rohtagi and A. Subba Rao for the petitioners.
L.N. Sinha, Attorney General of India, P. Maheshwari, R B. Dattar and Miss Sieta Vaidlingam, for the respondents.
S.K. Mehta for Municipal Corporation, Ludhiana.
This group of writ petitions and appeals raise interesting questions of law in regard to determination of rateable value of certain categories of properties situate in the Union Territory of Delhi.
The questions are of great importance since they 449 affect the liability of a large number of property owners in the Union territory of Delhi to pay property tax under the Delhi Municipal Corporation Act 1957 and the Punjab Municipal Act, 1911.
The appeals before us arise out of writ petitions filed in the High Court of Delhi challenging assessments made by the Municipal Corporation while the writ petitions fall broadly into two categories one category consisting of writ petitions which were originally filed in the High Court of Delhi but were subsequently transferred to this Court, while the other consisting of writ petitions which were filed directly in this Court.
We are definitely of the view that the writ petitions filed directly in this Court are not Maintainable under Article 32 of the Constitution since none of them complains of violation of any fundamental right and ordinarily we would have rejected them straight way without going into the merits, but the parties before us agreed that in view of the fact that these writ petitions involve identical questions as the appeals and the other writ petitions transferred to this Court and those questions would in any event have to be determined by us, we should not dismiss these writ petitions on the ground of non maintainability but should proceed to dispose them of on merits on the assumption that they are maintainable.
We are concerned in these appeals and writ petitions with four different categories of properties namely (1) where the properties are self occupied, that is, occupied by the owners (ii) where the properties are partly self occupied and partly tenanted; (iii) where the land on which the property is constructed is leased hold land with a restriction that the lease hold interest shall not be transferable without the approval of the lessor and (iv) where the property has been constructed in stages.
The question is as to how the rateable value is to be determined in respect of these four categories of properties.
So far as properties situate in the Union Territory of Delhi except New Delhi are concerned.
the determination of rateable value for the purpose of assessability to property tax is governed by the Delhi Municipal Corporation Act, 1957 while the determination of rateable value for the purpose of assessability to property tax in respect of properties situate in New Delhi is governed by the Punjab Municipal Act, 1911.
The relevant provisions of both these statutes in respect of determination of rateable value for the purpose of assessability to property tax are almost identical as observed by this Court in Dewan Daulat Ram vs New Delhi Municipal Committee and it would therefore be sufficient if we refer to the provisions of the Delhi Municipal Corporation Act, 1957.
Whatever we say in regard to determination of rateable value under the provisions of the Delhi Municipal Corpora 1. ; 450 tion Act, 1957 would apply equally in relation to determination rateable value under the provisions of the Punjab Municipal Act 1911.
The definitions of the expressions used in the Delhi Municipal Corporation Act, 1957 are to be found in Section 2 of that Act.
Sub section (3) of Section 2 defines building to mean "a house, outhouse.
stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonary, bricks, wood, mud, metal or other material but does not include any portable shelter". 'Rateable Value ' is defined in Section 2 sub section (47) to mean "the value of any land or building fixed in accordance with the provisions of this Act and the bye laws made thereunder for the purpose of assessment to property taxes".
Chapter VIII of the Act deals with the subject of taxation and it comprises Sections 113 to 184.
Clause (a) of sub section (1) of Section 113 provides that the Corporation shall, for the purposes of the Act, levy property taxes.
The subject of property taxes is then dealt with in Sections 114 to 135.
Section 114 sub section (1) lays down that property taxes shall be levied on lands and buildings in Delhi and shall consist inter alia of a general tax of not less than 10 and not more than 30 per cent of the rateable value of lands and buildings within the urban areas.
There is a proviso to sub section (1) of Section 114 which says that the Corporation may, when fixing the rate at which the general tax shall be levied during any`year, determine that the rate leviable in respect of lands and buildings or portions of lands and buildings in which a particular class of trade or business is carried on, shall be higher than the rate determined in respect of other lands and buildings or portions of other lands and buildings by an amount not exceeding one half of the rate so fixed Then follows an Explanation which provides that where any portion of a land or building is liable to a higher rate of general tax, such portion shall be deemed to be a separate property for the purpose of municipal taxation.
Section 115 sub section(4) lays down that save as otherwise provided in the Act, the general tax shall be levied in respect of all lands and buildings in Delhi, except lands and buildings or portions of lands and buildings exclusively occupied and used for public worship by a society or body for a charitable purpose and two other categories of lands and buildings.
Sub section (6) of Section 115 provides that where any portion of any land or building is exempt from the general tax by reason of its being exclusively occupied and used for public worship or for a charitable purpose, such portion shall be deemed to be a separate property for the purpose of municipal 451 taxation, It would appear from these provisions that the general A tax is leviable on land and building as a whole and separate portions of lands and buildings are not assessable to general tax as distinct and independent units save and except where any portion of the land or building is liable to a higher rate of general tax under the Proviso to clause (d) of Sub section (1) of Section 114 or is exempt from the general tax by reason of its being exclusively occupied or used for public worship or for a charitable purpose under subsection(4) of Section 115 in which case such portion of the land or building is deemed to be a separate property for the purpose of municipal taxation.
We may point out that apart from the general tax, three other categories of taxes, namely water tax, savenger tax and fire tax are include in the property taxes and they too are leviable as a percentage of the rateable value of lands and buildings.
Now how is rateable value to be determined.
The answer is provided by Section 116 Sub section (1) of Section 116 lays down that the rateable value of any land or building assessable to property taxes shall be the annual rent at which such land or building may reasonably be expected to be let from year to year, less a sum equal to 10% of such annual rent.
Section 116 Subsection (2) provides that the rateable value of any land which is not built upon but is capable of being built upon and any land on which a building is in process of erection shall be fixed at five per cent of the estimated capital value of such land.
Section 120 provides for the incidence of property taxes.
Sub section 1 of that section says that the property taxes shall be primarily leviable, if the land or building is let, upon the lessor, if the land or building is sublet, upon the superior lessor and if the land or building is unlet, upon the person in whom the right to let the same vests.
Subsection 2 of Section 120 deals with an exceptional case where any land has been let for a term exceeding one year to a tenant and such tenant has built upon the land and in such case, the sub section provides that the property taxes shall be primarily leviable upon the tenant.
Sub section 3 of Section 120 is an important provision and we may, therefore, reproduce it in extenso, "The liability of the several owners of any building which is, or purports to be, severally owned in parts or flats or rooms, for payment of property taxes or any instalment thereof payable during the period of such ownership shall be joint and several.
" This provision contemplates a case where there are several owners of a building which is or which purports to be severally 452 owned in parts or flats or rooms, so that each part or flat or room in the building is owned by a separate owner and the question arises as to how the property taxes are to be assessed and who is to be held liable to pay the same.
The basic assumption underlying this provision is that the building as a whole is to be assessed to the property taxes and not each separate part or flat or room belonging to a separate owner and the liability of the several owners for payment of the amount of property taxes assessed on the building is to be joint and several so that each of there would be liable to pay the whole amount of the property taxes assessed on the building vis a vis the Corporation.
The amount of the property taxes assessed on the building would, of course, be liable to be divided amongst the several owners in the proportion of the area comprised in the part or flat or room belonging to each owner, but so far as the Corporation is concerned the liability, of the several owners will be joint and several.
Then there are certain other provisions relating to the machinery for assessment but with them we are not immediately concerned in these appeals and writ petitions It will thus be seen that under the provisions of the Delhi Municipal Corporation Act 1957, the criteria for determining rate able value of a building is the annual rent at which such building might reasonably be expected to be let from year to year less certain deduction is which are not material for our purpose.
The word 'reasonably ' in this definition is very important.
What the owner might reasonably expect to get from a hepothetical tenant, if the building were let from year to year, affords the statutory oardstick for determining the rateable value Now, what is reasonable is a question of fact and it depends on the facts and circumstances of a given situation.
Ordinarily, "a bargain between a willing lessor and a willing lessee uninfluenced by any extraneous circumstances may afford a guiding test of reasonableness ' ' and in normal circumstances, the actual rent payable by a tenant to the landlord would afford reliable evidence of what the landlord may reasonably expect to get from the hypothetical tenant, unless the rent is initiated or depressed by reason of extraneous considerations such as relationship, expectation of some other benefit etc.
There would ordinarily be close approximation between the actual rent received by the landlord and the rent which he might reasonably expect to receive from a hypothetical tenant.
But in case of a building subject to rent control legislation, this approximation may and often does get displaced, because under rent control legislation the landlord cannot claim to recover from the tenant anything more than the standard 453 rent and his reasonable expectation must, therefore, be limited by a the measure of the standard rent lawfully recoverable by him.
There are several decisions where the impact of rent control legislation on the determination of rateable value has been considered by this Court and the latest amongst such decisions is that in Dewan Daulat Ram vs New Delhi Municipal Committee.1 This decision has reviewed all the earlier decisions given by this Court and as of date has spoken the last word on the subject so far as this court is concerned and hence it would be instructive and helpful to refer to it in some detail.
There were three appeals decided by a common judgment in Dewan Dualat Ram 's (supra) and the question which arose for determination in these appeals was as to how the rateable value of a building should be determined for levy of property tax where the building is governed by the provisions of the Delhi Rent Control Act, 1958 (hereinafter referred lo as the Rent Act) but the standard rent has not yet been fixed.
One of these appeals related to a case where the building was situate within the jurisdiction of the New Delhi Municipal Committee and was liable to be assessed to property tax under the Punjab Municipal Act, 1911, as is the case in many of the appeals and writ petitions before us, while the other two related to cases where the buildings were situate within the limits of the Corporation of Delhi and were assessable to property tax under the Delhi Municipal Corporation Act, 1957.
The property tax under both statutes was levied with reference to the rateable value of the building and, as already pointed out by us earlier, the reteable value was defined in both statutes in the same terms, barring a second proviso which occurred in Section 116 of the Delhi Municipal Corporation Act, 1957 but was absent in Section 3(1)(b) of the Punjab Municipal Act, 1911 and which was admittedly of no con sequences.
The controversy between the parties centered round the question as to what is the true meaning of the expression "the gross annual rent at which such land or building might reasonably be expected to let from year to year" occurring in the definition in both statutes.
The argument put forward by the Municipal Authorities was that since the standard rent of the building was not fixed by the Controller under Section 9 of the Rent Act in any of the cases before the Court and in each of the cases the period of limitation prescribed by Section 12 of the Rent Act for making an application for fixation of the standard rent had expired, the landlord was entitled to continue to receive the actual rent from the tenant without any legal impediment, and hence the rateable value of the building was not 1.
; 454 limited to the standard rent determinable in accordance with the principles laid down in the Rent Act but was liable to be assessed by reference to the contractual rent recoverable by the landlord from the tenant.
The Municipal authorities urged that if it was not penal for the landlord to receive the contractual rent from the tenant, even if it be higher than the standard rent determinable under the provisions of the Rent Act it would not be incorrect to say that the landlord could reasonably expect to let the building at the contractual rent and the contractual rent could, therefore, be regarded as providing a correct measure for determination of the rateable value of the building.
This argument was, however, rejected by the Court and it was held that even if the standard rent of a building has not been fixed by the Court Contract under Section 9 of the Rent Act, the landlord cannot reasonably expect to receive from a hypothetical tenant anything more than the standard rent determinable under the provisions of the Rent Act and this would be so equally whether the building has been let out to a tenant who has lost his right to apply for fixation of the rent by reason of expiration of the period of limitation prescribed by Section 12 of the Rent Act or the building is self occupied by the owner.
Therefore, the Court held that in either case, according to the definition of "rateable value" given in both statutes, the standard rent determinable under the provisions of the Rent Act and not the actual rent received by the landlord from the tenant, would constitute the correct measure of the rateable value of the building.
The Court pointed out that in each case the assessing authority would have to arrive at its own figure of the standard rent by applying the principles laid down in the Rent Act for determination of the standard Rent and determine the rateable value of the building on the basis of the actual rent received by the landlord and observed that the rateable value of the building must be held to be limited by the measure of the standard rent determinable on the principles laid down in the Rent Act, and it would not exceed such measure of the standard rent, This decision is, therefore, clearly authority for the proposition that the rateable value of a building, whether tenanted or self occupied, is limited by the measure of standard rent arrived at by the assessing authority by applying the principles laid down in the Rent Act and cannot exceed the figure of the standard rent so arrived at by the assessing authority.
Now, in the course of the arguments advanced before us, we found that there was some confusion in regard to the true import of this decision.
The municipal authorities contended that the ratio of this division was that whatever be the figure of the standard rent whether determined by the Controller under Section 9 of the Rent act or arrived at by the 455 assessing authority by applying the principles laid down in the Rent 4 Act, must be taken as the measure of rateable value of the building for the purpose of assessability to property tax, irrespective of any other considerations.
Even if the owner of the building is able to show by producing satisfactory evidence that having regard to prevailing circumstances such as the nature of the building, its situation or state of repair or economic depression or other similar causes, he cannot reasonably expect to get from a hypothetical tenant even the amount of standard rent determinable on the principles laid down in the Rent Act, the rateable value of the building must still be determined at the figure of the standard rent.
So it was argued on behalf of the Municipal authorities, but we do not think that this is a correct interpretation of the decision in Dewan Daulat Ram 's case (supra).
The controversy in that case was not whether the figure of standard rent of a building should be taken as its rateable value even where the rent which the owner reasonably expects to get from a hypothetical tenant is less than the figure of the standard rent but whether the contractual rent receivable by the landlord from the tenant should be taken to be the rateable value even if it be higher than the standard rent determinable under the provisions of the Rent Act.
The Court held that even if the landlord was entitled under the law to recover the contractual rent from the tenant because the standard rent of the building had not yet been fixed and the time for making an application by the tenant for fixation of the standard rent had already expired, such contractual rent could not furnish a measure for determination of the rateable value, because the question had to be judged not with reference to the actual tenant but with reference to a hypothetical tenant and the yardstick provided by the Statute for determination of the rateable value was as to what rent the owner of the building might reasonably expect to get from a hypothetical tenant, if the building were let from year to year and the hypothetical tenant could not be assumed to be willing to pay anything more than the standard rent, because after taking the hypothetical tenancy, he could immediately make an application for fixation of standard rent The Court, therefore.
, reached the conclusion that even if the landlord was lawfully entitled to receive the contractual rent from the tenant, such contractual rent could not be taken to be the rateable value of the building, because the reasonable expectation of the landlord to receive rent from a hypothetical tenant could not possibly exceed the standard rent determinable in accordance with the provisions laid down in the Rent Act.
The standard rent determinable on the principles set out in the Rent Act was laid down by the Court as the 456 upper limit of the rent which the landlord may expect to receive from a hypothetical tenant, if the building were let out to him from year to year.
The Court never said that even if the actual rent receivable by the landlord from the tenant or the rent which the owner may reasonably expect to receive from a hypothetical tenant were lower than the standard rent determinable in accordance with the principles laid down in the Rent Act, the standard rent must still be taken to be the rateable value of the building.
Such a view would fly in the face of the definition of 'rateable value ' in both statutes and could not possibly have been taken by the Court in this case It is significant to note what the Court said in this case, and here we are quoting from the Judgment delivered by the Court, namely, that the rateable value of a building "must be held to be limited by the measure of standard rent determinable on the principles laid down in the Delhi Rent Control Act 1958 and it cannot exceed such ' measure of standard rent" (emphasis supplied).
It is thus clear from this decision that the rateable value of a building cannot exceed the measure of standard rent, whether determined by the Controller under Section 9 of the Rent Act or arrived at by the assessing authority by applying the principles laid down in the Rent Act, but it may in a given case be less than the standard rent having regard to various attendant circumstances and considerations.
If, for example, the building is not in a proper state of repair or is so situate that it has certain disadvantages from the point of view of easy accessability or means of transport of any other similar cause, the actual rent which the owner may reasonably accept to receive from a hypothetical tenant may be less than the standard rent determinable on the principles laid down in the Rent Act.
It is also possible that in case of a building recently constructed, the standard rent determinable according to the principles laid down in the Rent Act may be very high having regard to the fantastic inflation in the value of land and the abnormal rise in the cost of construction in the last few years, but it may not be, and perhaps in many cases would not be, possible for the owner to obtain such high rent from a hypothetical tenant.
It is equally possible that the building constructed by the owner may be so large as a single unit that it may a be difficult for the owner to find a tenant who will be prepared to pay the huge amount of rent which the standard rent is bound to be if determined on the principles laid down in the Rent Act and having regard to the extreme smallness of the number of possible tenants of such a building, the rent which the owner may reasonably expect to receive from a hypothetical tenant may be very much less than the standard rent.
The test therefore is not what is the standard 457 rent of the building but what is the rent which the owner reasonably expects to receive from a hypothetical tenant and such reasonable expectation can in no event exceed the standard rent of the building determinable in accordance with the principles laid down in the Rent Act, though it may in a given case be lower than such standard rent.
We may now turn to the relevant provisions of the Rent Act which has been since 9th February, 1959 the law in force relating to control of rent of building situate within the jurisdiction Or the Delhi Municipal Corporation and the New Delhi Municipal Committee.
Section 2(k) defines 'standard rent ' in relation to any premises to mean "the standard rent referred to in Section 6 or where the standard rent has been increased under Section 7, such increased rent".
Section 6 lays down different formulae for determination of standard rent in different classes of cases and each formula gives a precise and clear cut method of computation yielding a definite figure of standard rent in respect of building falling within its coverage.
We are concerned in these appeals and writ petitions with determination of rateable value of residential premises and we will, therefore, refer only to so much of Section 6 as relates to residential premises.
Section 6 sub section 1(A)(1) lays down the formula for determination of standard rent in case of residential premises where such premises have been let out at any time before 2nd June, 1914, but this provision is not material for our purpose, since the residential buildings with which we are concerned in these appeals and writ petitions are all buildings constructed after 2nd June, 1944.
Subsection 1(A)(1)(a) of Section 6 has also no relevance for our purpose since it deals with the case of residential premises which have been let out at any time on or after 2nd June, 1944 and in respect of which rent has been fixed under the Delhi and Ajmer Merwara Rent Control Act, 1947 or the Delhi and Ajmer Rent Control Act, 1952, which is not the case in respect of any of the residential buildings forming the subject matter of the present writ petitions and appeals Section 6 sub section 1(A)(2)(b) is however 'material and we may, therefore set it out in extenso: Section 6 (1) Subject to provisions of sub section (2) 'standard rent ' in relation to any premises means (A) in the case of residential premises (2) where such premises have been let out at any time on or after the 2nd day of June, 1944, 458 (b) in any other case, the rent calculated on the basis of seven and one half per cent, per annum of the aggregate amount of the reasonable cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction: Provided that where the rent so calculated exceeds twelve hundred rupees per annum, this clause shall have effect as If for the words "seven and one half per cent", the words "eight and one fourth per cent." had been substituted; Though we are not concerned with non residential premises we may point out that in respect of non residential premises which have been let out at any time on or after 2nd June, 1944 and in respect of which rent has not been fixed under the Delhi and Ajmer Merwara Rent Control Act, 1947, or the Delhi and Ajmer Rent Control Act, 1952, standard rent is required to be calculated on the same basis as set out in sub section (1)(A)(2) (b) of Section 6 with only this difference that instead of the rent being calculated at the rate of 8 114 per cent as laid down in that provision, it is required to be calculated at the rate of 8 518 per cent.
Sub section (2) of Section 6 has also considerable bearing on the controversy between the parties and it may, therefore, be set out in full: (2) Notwithstanding anything contained in sub section (1) (a) in the case of any premises, whether residential or not, constructed on or after the 2nd day of June, 1951, but before the 9th day of June, 1955, the annual rent calculated with reference to the rent at which the premises were let for the month of March, 1958, or if they were not so let, with reference to the rent at which they were last let out, shall be deemed to be the standard rent for a period of seven years from the date of the completion of the construction of such premises, and (b) in the case of any premises, whether residential or not, constructed on or after the 9th day of June, 1955, including premises constructed after the commencement of this Act, the annual rent calculated with reference to the rent agreed upon between the landlord and the tenant when such premises were first let out 459 shall be deemed to be the standard rent for a period of A five years from the date of such letting out.
Then follows Section 7 of which only sub section (1) is material and it runs as follows: "7(1) Where a landlord has at any time, before the commencement of this Act with or without the approval of the tenant or after the commencement of this Act with the written approval of the tenant or of the Controller, incurred expenditure for any improvement, addition or structural alteration in the premises, not being expenditure on decoration or tenantable repairs necessary or usual for such premises, and the cost of that improvement, addition or alteration has not been taken into account in determining the rent of the premises, the landlord may lawfully increase the standard rent per year by an amount not exceeding seven and one half per cent, of such cost.
" The next section which is material for our purpose is Section 9 and since considerable argument has turned upon the provisions of that Section and particularly sub section (4) it would be useful to set out the relevant provisions of that section which read follows: "9(1) The Controller shall, on an application made to him in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any premises (i) the standard rent referred to in section 6; or (ii) the increase, if any, referred to in section 7.
(2) In fixing the standard rent of any premises or the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 or section 7 and the circumstances of the case.
(4) Where for any reason it is not possible to determine the standard rent of any premises on the principles set forth under section 6, the Controller may fix such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or 460 nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises.
" These are the only material provisions of the Rent Act which are relevant for the determination of the controversy which arises in the present appeals and writ petitions It is clear from the definition of 'standard rent ' contained in Section 2 (k) that the standard rent of a building means the standard rent referred to in Section 6 or where the standard rent has been increased under Section 7, such increased rent This definition is not an inclusive but an exhaustive definition and it defines the standard rent to mean either the standard rent referred to in Section 6 or the increased standard rent under Section 7.
It is significant to note that it does not contain any reference to Section 9, sub section (4).
Whenever, therefore, any reference is made to standard rent in any provision of the Rent Act, it must mean standard rent as laid down in Section 6 or increased standard rent as provided in Section 7 and nothing more.
Section 6 lays down the principles for determination of standard rent in almost all conceivable classes of cases and Section 7 provides for increase in the standard rent where the landlord has incurred expenditure for any improvement, addition or structural alteration in the premises.
Section 9, as the definition in Section 2 (k) clearly suggests and the marginal note definitely indicates, does not define what is standard rent but merely lays down the procedure for fixation of standard rent Sub section (1) of Section 9 provides that the Controller shall, on an application made to him in that behalf, either by the landlord or by the tenant, ill the prescribed manner, fix in respect of any premises, standard rent referred to in Section 6 or the increase, if any, referred to in Section 7.
Sub section (2) then proceeds to say that in fixing the standard rent of any premises or the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of Section 6 or Section 7 and the circumstances of the case.
The Controller is thus entrusted by sub sections (l) and (2) of Section 9 with the task of fixing the standard rent of any premises having regard to the principles set out in Section 6 or the provision of Section 7 and any other relevant circumstances of the case.
The words "having regard to. the circumstances of the case" undoubtedly leave a certain measure of discretion to the Controller in fixing the standard rent.
But this discretion is not such an unfettered and unguided discretion as to enable the Controller to fix any standard rent which he considers reasonable.
He is 461 required to fix the standard rent in accordance with the formula laid A down in Section 6 or Section 7 and he cannot ignore that formula by saying that in the circumstances of the case he considers it reasonable to do so.
The only discretion given to him is to make adjustments in the result arrived at on the application of the relevant formula, where it is necessary to do so by reason of the fact that the landlord might have made some alteration or improvement in the building or circumstances might have transpired affecting the condition or utility of the building or some such circumstances of similar character.
The compulsive force of the formulae laid down in Section 6 for the determination of standard rent and of the provisions of Section 7 for increase in standard rent is not in any way whittled down by sub section (2) of Section 9 but a marginal discretion is given to the Controller to mitigate the rigor of the formulae where the circumstances of the case so require.
The question, however, may arise as to what is to happen if it is not possible to determine the standard rent of any premises on the principles set forth in Section 6 The machinery set out in sub sections (I) and (2) of Section 9 would then fail of application, because it would not be possible for the Controller to fix the standard tent having regard to the provisions of Section 6.
This contingency is taken care of by sub section (4) of Section 9 which provides that in such a situation the Controller may fix such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises.
But the basic condition for the applicability of sub section (4) of Section 9 is that it should not be possible to determine the standard rent on the principles set out in Section 6.
Where such is the case, the Controller is empowered to fix such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein But even while fixing such rent, the Controller does not enjoy unfettered discretion to do what he likes and he is bound to take into account the standard rent payable in respect of similar or nearly similar premises in the locality.
The standard rent determinable on the principles set out in Section 6, therefore, again becomes a governing consideration.
The legislature obviously did not intend to vest unguided discretion in the Controller to fix such rent as he considers reasonable without any principles or norms to guide him and, therefore, it provided that in fixing reasonable rent, the Controller shall take in to account the standard rent payable in respect of similar or nearly similar premises.
The 462 Controller must derive guidance from the standard rent of similar or nearly similar premises in the locality and apart from discharging the function of affording guidance to tile Controller in fixing reasonable rent, this requirement also seeks to ensure that there is no wide disparity between the reasonable rent of the premises fixed by the Controller and the standard rent of similar or nearly similar premises situate in the locality.
The process of reasoning which the Controller would have to follow in fixing reasonable rent would, therefore, be first to ascertain what is the standard rent payable in case of similar or nearly similar premises in the locality and then to consider how far such standard rent in its application to the premises, needs adjustment having regard to the situation, locality and condition of the premises and the amenities provided therein.
The reasonable rent so determined would be the standard rent of the premises fixed by the Controller.
There may, however, be cases where there are no similar or nearly similar premises in the locality and in such cases guideline to the Controller would not be available and the Controller would have to determine as best as he can what rent would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein.
But such cases would by their very nature be extremely rare and even there, the Controller would not be on an uncharted sea: he would have to fix the reasonable rent of the premises taking into account the standard rent of similar or nearly similar premises in the adjoining locality and making necessary adjustments in such standard rent.
Now, let us take up for consideration the first category of premises, in regard to which the question of determination of rate able value arises, namely, where the premises are self occupied, that is, occupied by the owner.
We will first consider the case of residential premises.
It is clear from the above discussion that the rateable value of the premises would be the annual rent at which the premises might reasonably be expected to be let to a hypothetical tenant and such reasonable expectation cannot in any event exceed the standard rent of the premises, though in a given situation it may be less than the standard rent.
The standard rent of the premises would constitute the upper limit of the annual rent which the owner might reasonably expect to get from a hypothetical tenant if he were to let out the premises.
Even where the premises are self occupied and have not been let out to any tenant, it would still be possible to determine the standard rent of the premises on the basis of hypothetical tenancy.
The question in such case would be as to what would be the standard rent of the premises if they were out to a 463 tenant Obviously, in such an eventuality, the standard rent would be determinable on the principles set out in sub section (1) (a) (2) (b) of Section 6 of the Rent Act.
The standard rent would be the rent calculated on the basis of 7 1/2 percent or 8.1/4 per cent per annum of the aggregate amount of the reasonable cost of construction and the market price of the land comprised in the premises on the date of commencement of the construction.
The Delhi Municipal Corporation, however, contended that where any premises constructed on or after 9th June 1955 and the premises in most of the cases before us are premises constructed subsequent to 9th June 1955 have not been let out at any time and have throughout been self occupied, the standard rent of such premises would be determinable under the provisions of sub section (2) (b) of Section 6 and any rent which could be agreed upon between the landlord and the tenant if the premises were let out to a hypothetical tenant would be deemed to be the standard rent of the premises and the formula set out in subsection (I)(B)(2) (b) of Section 6 would not be applicable for determining the standard rent by reason of the non obstant clause contained in the opening part of sub section (2) of Section 6.
This contention, plausible though it may seem, is in our opinion not well founded.
It is difficult to see how the provision enacted in subsection (2) (b) of Section 6 can be applied for determining the standard rent of the premises when the premises have not been actually let out at any time.
Sub section (2) (b) of Section 6 clearly contemplates a case where there is actual letting out of the premises as distinct from hypothetical letting out, because under this provision the annual rent agreed upon between the landlord and the tenant at the time of first letting out is deemed to be the standard rent for a period of five years from the date of such letting out and it is impossible to imagine how the concept of first letting out can fit in with anything except actual letting out and how the period of five years can be computed from the date of any hypothetical letting out.
It is only from the date of first actual letting out that the period of five years can begin to run and for this period of five years the annual rent agreed upon between the landlord and the tenant at the time of first actual letting out would be deemed to be the standard rent.
Sub section (2) (b) of Section 6 can have no application where there is no actual letting out and hence in case of premises which are constructed on or after 9th June 1955 and which have never been letout at any time, the standard rent would be determinable on the principles laid down in sub section (1) (A) (2) (b) Section 6.
So also in case of premises which have been constructed before 9th June 1955 but after 2nd June 1951 the standard rent would, 464 for like reasons, be determinable under the provisions of sub section (I)(A) (2) (b) of Section 6 if they have not been actually let out any time since their construction.
But if these two categories of premises have been actually let out at some point of time in the past, then in the case of former category, the annual rent agreed upon between the landlord and the tenant when the premises were first actually let out shall be deemed to be the standard rent for a period of five years from the date of such letting out and in the case of the latter category, the annual rent calculated with reference to the rent at which the premises were actually let for the month of March 1958 or if they were not so let, with reference to the rent at which they were last actually let out shall be deemed to be the standard rent for a period of seven years from the date of completion of the construction of the premises.
However, even in the case of these two categories of premises, the standard rent after the expiration of the period of five years or seven years as the case may be, would be determinable on the principles set out in sub section (I) (A) (2) (b) of Section 6.
Thus in the case of self occupied residential premises, the standard rent determinable under the provisions of sub section (2) (a) or (2) (b) of Section 6 in cases falling within the scope and ambit of those provisions and in other cases, the standard rent determinable under the provisions of sub section (I) (A) (2) (b) of Section 6 would constitute the upper limit of the rateable value of the premises.
Similarly, on an analogous process of reasoning, the standard rent determinable under the provisions of sub section (2) (a) or (2) (b) of Section 6 in cases falling within the scope and ambit of those previsions and in other cases, the standard rent determinable under the provisions of sub section (I)(B) (2)(b) of Section 6 would constitute the upper limit of the rateable value so far as self occupied non residential premises are concerned.
l`he rateable value of the premises, whether residential or non residential cannot exceed the standard rent, but, as already pointed out above, it may in a given case be less than the standard rent.
The annual rent which the owner of the premises may reasonably expect to get if the premises are let out would depend on the size, situation, locality and condition of the premises and the amenities provided therein and all these and other relevant factors would have to be evaluated in determining the rateable value, keeping in mind the upper limit fixed by the standard rent.
If this basic principle is borne in mind, it would avoid wide disparity between the rateable value of similar premises situate in the same locality, where some premises are old premises constructed many years ago when the land prices were not high and the Cost of construction had not 465 escalated and others are recently constructed premises when the A prices of land have gone up almost 40 to 50 times and the cost of construction has gone up almost 3 to 5 times in the last 20 years.
The standard rent of the former category of premises on the principles set out in sub section (I) (A) (2) (b) or (l) (B) (2) (b) of Section 6 would be comparatively low, while in case of latter category of premises, the standard rent determinable on these principles would be unduly high.
If the standard rent were to be the measure of rateable value, there would be huge disparity between the rateable value of old premises and recently constructed premises, though they may be similar and situate in the same or adjoining locality.
that would be wholly illogical and irrational.
Therefore, what is required to be considered for determining rateable value in case of recently constructed premises is as to what is the rent which the owner might reasonably expect to get if the premises are let out and that is bound to be influenced by the rent which is obtainable for similar premises constructed earlier and situate in the same or adjoining locality and which would necessarily be limited by the standard rent of such premises.
The position in regard to the determination of rateable value of self occupied residential and non residential premises may thus be stated as follows: The standard rent determinable on the principles set out in sub section (2) (a) or (2) (b) or (1) (A) (2) (b) or (1) (B) (2) (b) of Section 6 as may be applicable, would fix the upper limit of the rateable value of the premises and within such upper limit, the assessing authorities would have to determine as to what is the rent which the owner may reasonably expect to get if the premises are let to a hypothetical tenant and for the purpose of such determination, the assessing authorities would have to evaluate factors such as size, situation, locality and condition of the premises and the amenities therein provided.
The assessing authorities would also have to take into account the rent which the owner of similar premises constructed earlier and situate in the same or adjoining locality, might reasonably expect to receive from a hypothetical tenant and which would necessarily be within the upper limit of the standard rent of such premises, so that there is no wide disparity between the rate of rent per squar foot or square yard which the owner might reasonably expect to get in case of the two premises.
Some disparity is bound to be there on account of the size, situation, locality and condition of the premises and the amenities provided therein.
Bigger size beyond a certain optimum would depress the rate of rent and so also would less favorable situation or locality or lower quality of construction or unsatisfactory condition of the premises or absence of necessary amenities and similar 466 other factors.
But after taking into account these varying factors, the disparity should not be disproportionately large.
We may also point out that until 1980 the assessing authorities were giving a self occupancy rebate of 20% in the property tax assessed on self occupied residential premises.
We would suggest that, in all fairness, this rebate of 20% may be resumed by the assessing authorities, because there is a vital distinction, from the point of view of the owner, between self occupied premises and tenanted premises and the right to shelter under a roof being a basic necessity of every human being, residential premises which are self occupied must be treated on a more favourable basis then tenanted premises, so far as the assessability to property tax is concerned.
We may now turn to consider the second category of premises in regard to which the rateable value is required to be determined.
This category comprises premises which are partly self occupied and partly tenanted.
Now, as we have pointed out above, it is the premises as a whole which are liable to be assessed to property tax and not different parts of the premises as distinct and separate units.
But while assessing the rateable value of the premises on the basis of the rent which the owner may reasonably expect to get if the premises are let out, it cannot be over looked that where the premises consist of different parts which are intended to be occupied as distinct and separate units, the hypothetical tenancy which would have to be considered would be the hypothetical tenancy of each part as a distinct and separate unit of occupation and the sum total of the rent reasonably expected from a hypothetical tenant in respect of each distinct and separate unit would represent the rateable value of the premises.
Now obviously the rent which the owner of the premises may reasonably expect to receive in respect of each distinct and separate unit Cannot obviously exceed the standard rent of such unit and the assessing authorities would therefore have to determine the standard rent with a view to fixing the upper limit of the rent which can reasonably be expected by the owner on letting out such unit to a hypothetical tenant.
How is this to be done ? Where the case falls within sub section (2) (a) or (2) (b) of Section 6, no problem arises, because whether the distinct and separate unit of which the standard rent is to be determined is self occupied or tenanted makes no difference, for in either case, the standard rent would be governed by one or the other of these two provisions.
So also in cases falling outside sub section (2) (a) and (2) (b) of Section 6? it would make no difference whether the distinct 467 and separate unit of which the standard rent is to be determined is A self occupied or ten anted ; for in either case, the standard rent would be determinable under the provisions of sub section (I) (A) (2) (b) or (1) (B) (2) (b) of Section 6.
But the question is, how is the formula set out in sub section (I) (A) (2) (b) or (1) (B) (2) (b) of Section 6 to be applied ? Obviously there would be no difficulty in applying the formula, if the premises of which the standard rent is to be determined consist of the entire building.
Then the reasonable cost of construction of the building can be taken and it can be aggregated with the market price of the land comprised in he building on the date of commencement of construction of the building and 7 1/2 per cent of such aggregate amount would represent the standard rent of the building.
But where the building consists of more than one distinct and separate units and the standard rent to be determined is that of any particular unit, the formula may present some difficulty of application if it is sought to be applied literally in relation to that particular unit alone and by itself, because even if the reasonable cost of construction of that particular unit can be ascertained, it would not be possible to determine "the market price 1) of the land comprised in the premises on the date of the commencement of construction" since the entire building and not merely that particular unit would be standing on the land and the land on which the building is standing would be land comprised in the building and it would be irrational and absurd to speak of it as land comprised in that particular unit The formula can, however, be applied for determining the standard rent of a particular unit by computing the standard rent of the building ; in accordance with the formula and then apportioning the standard rent so computed amongst the different units of occupation comprised in the building on the basis of floor area, taking into consideration differences, if any, on account of the situation and condition of the various units and the amenities provided in such units.
This would be the most rational way in which the market price of the land comprised in the building on the date of commencement of construction can be spread over amongst the different units of occupation comprised in the building.
It would therefore seem that when the rateable value of a building consisting of distinct and separate units of occupation is to be assessed, the standard rent of each unit would have to be determined on the principles set out above and within the upper limit fixed by the standard rent, the assessing authorities would have to determine the rent which the owner may reasonably expect to get if such unit were let out to a hypothetical tenant and in arriving at this determination, the assessing authorities would have to take into account the same 468 factors which we have already discussed in the preceeding paragraphs of this judgment while dealing with the question of assessment of self occupied properties.
The sum total of the rent which the owner may reasonably expect to get from a hypothetical tenant in respect of each distinct and separate unit of occupation calculated in the manner aforesaid, would represent the rateable value of the building.
We may point out that this formula for determination of rateable value would apply, irrespective of whether any of the distinct and separate units of occupation comprised in the building are self occupied or tenanted.
The only difference in case of a distinct and separate unit of occupation which is tenanted would be that, subject to the upper limit of the standard rent, the actual rent received by the owner would furnish a fairly reliable measure of the rent which the owner may reasonably expect to receive from a hypothetical tenant, unless it can be shown that the actual rent 50 received is influenced by extra commercial considerations.
That takes us to the third category of premises where the land on which the premises are constructed is lease hold land with a restriction that the leasehold interest shall not be transferable without the approval of the lessor.
There are two classes of cases which fall within this category.
The first is where premises have been cons tructed by the owner on land taken on lease directly from the Government and the second is where premises have been constructed by the owners on land taken on sub lease from a Cooperative House Building Society which has in its turn taken a lease from the Government.
The lease in the first class of cases is a lease in perpetuity and so also are the lease and a sub lease in the second class of cases.
We are concerned in these writ petitions and appeals with the second class of cases and we shall, therefore, confine our observations to that class.
The sub lease in this class of cases is executed by the Cooperative House Building Society in favour of each of its members in respect of the plot of land sub leased to him.
One of the clauses in the sub lease, the standard form of which is to be found in clause 6 of the document of sub lease in Transferred Case No. 75/82, inter alia provides as under: (6)(a) The Sub Lease shall not sell, transfer assign or otherwise part with the possession of the whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who Is not a member of the Lessee.
(b) The Sub Lessee shall not sell, transfer, assign or 469 Otherwise part with the possession of the whole or any A part of the residential plot to any other member of the Lessee except with the previous consent in writing of the Lessor which he shall be entitled to refuse in his absolute discretion.
Provided that in the event of the consent being given, the Lessor may impose such terms and conditions as he thinks fit and the Lessor shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. the difference between the premium paid and the market value) of the residential plot at the time of sale, transfer, assignment, or parting with the possession, the amount to be recovered being fifty per cent of the unearned increase and the decision of the Lessor in respect of the value shall be final and binding.
D Provided further that the Lessor shall have the pre emptive right to purchase the property after deducting fifty per cent of the unearned increase as aforesaid.
It is obvious that by reason of this clause in the sub lease, the owner who has constructed premises on the plot of land sub leased to him, cannot sell, transfer or assign his lease hold interest in the plot of land to any except a member of the Cooperative House Building Society and even so far as sale, transfer or assignment to a member of the Cooperative House Building Society is concerned, it cannot be made except with the previous consent in writing of the Government which the Government may give or refuse in its absolute discretion, and in case the Government chooses to give its consent, the Government would be entitled to claim 50% of the unearned increase in the value of the land at the time of such sale, transfer or assignment and moreover, if the Government so desires, it would have a pre emptive right to purchase the plot of land after deducting 50 per cent of the unearned increase in the value of the plot of land.
this covenant in the sub lease is clearly a covenant running with the land and even where sale, transfer or assignment of the plot of land has taken place with the previous consent in writing of the Government, this covenant would continue to bind the purchaser, transferee or assignee, vide Commissioner of Wealth 470 Tax vs P.N. Sikand(l).
Relying on this clause in the sub lease, the Delhi Municipal Corporation contended that since the plot of land on which the premises stands, cannot be transferred without the previous consent of the Government, it has no market value and its market price cannot be ascertained and hence the standard rent of the premises cannot be determined on the principles set out in sub sections (I) (A) (2) (b) or (1) (B) (2) (b) of Section 6 and consequently, the residuary provision in sub section (4) of Section 9 would apply and the standard rent would have to be fixed in accordance with the principles laid down in that provision.
This was in fact the ground on which the assessing authorities rejected the objections filed by several owners of premises contending that the standard rent of their premises should be determined on the principles set out in sub sections (1 ) (A) (2) (b) or (1) (B) (2) (b) of Section 6.
To quote only one of the orders made by the assessing authority in case of petitioner No. 2 in T.C. No. 75/82 it was said in the order rejecting the objections of that petitioner: "The property is built upon a 'case hold plot.
This being so it is not feasible to determine the market price of land at the time of start of construction because under the terms and conditions of the conveyance deed, the land is not open for sale in the open market.
As such I am not in a position to apply S.6 of the Delhi Rent Control Act for fixing the standard rent.
I have, therefore, to resort to section 9 of the Delhi Rent Control Act for fixing the standard rent." This argument which seems to have prevailed with the assessing authorities in rejecting the applicability of Sub Section (1) (Al (2) (b) or (1) (B) 2 (b) of section 6 and resorting to the provisions of Sub Section (4) of section 9 is wholly unfounded.
Merely because the plot of land on which the premises are constructed cannot be sold, transferred or assigned except to a member of the Cooperative House Building Society and without the prior consent of the Government, it does not necessarily mean that there can be no market price for the plot of land.
It is not as if there is total prohibition on the sale, transfer or assignment of the plot of land, so that in no conceivable circumstance, it can be sold, transferred or assigned.
the plot of land can (1) ; 471 be sold, transferred or assigned but only to one from amongst a limited class of persons, namely, those who are members of the Cooperative House Building Society and subject to the Rules and Regulations, any eligible person can be admitted to the membership of the Cooperative House Building Society.
There is also a further restriction, namely that the sale, transfer or assignment can take place only with the prior consent of the Government.
But subject to these restrictions, the sale, transfer or assignment can take place.
It cannot, therefore, be said that the market price of the plot of land cannot be ascertained.
When we have to determine what would be the market price of the plot of land on the date of commencement of construction of the premises, we must proceed on the hypothesis that the prior consent of the Government has been given and the plot of land is available for sale, transfer or assignment and on that footing, ascertain what price it would fetch on such sale, transfer or assignment Of course, when the class of potential buyers, transferees or assignees is restricted, the market price would tend to be depressed.
But even so, it can be ascertained and it would not be correct to say that it is incapable of determination.
There is also one other factor which would go to depress the market price and that stems from the clause in the sub lease which provides that on sale, transfer or assignment of the plot of land, the Government shall be entitled to claim 50% of the unearned increment in the value of the plot of land and the Government shall also be entitled to purchase the plot of land at the price realisable in the market after deducting there from 50% of the unearned increment.
Since the lease hold interest of the sub lease in the plot of land is cut down by this burden or restriction, the market price of the plot of land cannot be determined as if the leasehold interest were free from this burden or restriction.
This burden or limitation attaching to the leasehold interest must be taken into account in arriving at the market price of the plot of land, because any member of the Cooperative House Building Society who takes the plot of land by way of sale, transfer or assignment would be bound by this burden or restriction which runs with the land and that would necessarily have the effect of depressing the market price which he would be inclined to pay for the plot of land.
We must, therefore, discount the value of this burden or restriction in order to arrive at a proper determination of the market price of the plot of land and the only way in which this can be done is by taking the market price of the plot of land as if it were unaffected by this burden or restriction and deducting from it, 50% of the unearned increase in the value of the plot of land on the basis of the hypothetical sale, as representing the value of such burden or 472 restriction.
This mode of determination of the market price has the sanction of the decision of this Court in P.N. Sikand 's case (supra).
We do not, therefore, think that the assessing authorities were right in taking, the view that because the plot of land could not be sold, transferred or assigned except to a member of the Cooperative House Building Society and without the prior consent of the Government, its market price was unascertainable and hence the standard rent of the premises could not be determined under sub section (1) (A)(2)(b) or (1)(B)(2)(b) of section 6 and had to be assessed only under Sub section
( 4) of section 9.
We are firmly of the view that the market price of the plot of land at the date Of commencement of construction of the premises was ascertainable on the basis of the formula we have indicated, notwithstanding the restriction on transferability contained in the sub lease and the standard rent of the premises constructed on the plot of land was determinable under the provisions of sub section (1) (A) (2) (b) or (l) (B) (2) (b) of Section 6.
The argument of the Delhi Municipal Corporation that in all such cases resort has to be made to the provisions of sub section (4) of Section 9 for determination of the standard rent of the premises must be rejected.
We may also in this connection refer to the statement made by the Minister of State for Home Affairs on the floor of the Lok Sabha on 8th April 1981 where the Minister observed: "The Municipal Corporation of Delhi has intimated that 494 general objections for the year 1980 81 filed by the assessees for the revision of assessment of their properties in accordance with Supreme Court Judgment were considered by the Corporation.
The requests for reassessment on the basis of standard rent under Section 6 of the Rent Control Act, 1958, were considered and not found accept able to the Corporation as the assessees failed to produce documentary evidence as regards the aggregate amount of the reasonable cost of construction and the market price of the land comprised in the premises on the date of commencement of the construction as provided under Section 9 (2)(b) of the Delhi Rent Control Act, 1958.
Accordingly, assessments were made as provided under section 5 of the Delhi Rent Control Act, 1958.
The details of the proper ties, locality wise, are given ill the statement attached.
" It is indeed strange that the assessing authorities should have declined to assess the rateable value of 494 properties in South 473 Delhi on the basis of standard rent determinable on the principles A laid down in sub section (1) (A) (2) (b) or (1) (B) (2) (b) of Section 6, merely on the ground that in the opinion of the assessing authorities "the assessees failed to produce the documentary evidence as regards the aggregate amount of reasonable cost of construction and the market price of land comprised in the premises on the date of commencement of the construction.
" If the assessees failed to produce the documentary evidence to establish the reasonable cost of construction of the premises or the market price of the land comprised in the premises, the assessing authorities could arrive at their own estimate of these two constituent items in the application of the principles set out in sub section (1) (A) (2) (b) or (1) (B) (2) (b) of Section 6.
But on this account, the assessing authorities could not justify resort to sub section (4) of Section 9.
It is only where for any reason it is not possible to determine the standard rent of any premises on the principles set forth in Section 6 that the standard rent may be fixed under sub section (4) of Section 9 and merely because the owner does not produce satisfactory evidence showing what was the reasonable cost of construction of the premises or the market price of the laud at the date of commencement of the construction, it cannot be said that it is not possible to determine the standard rent on the principles set out in sub section (I) (A) (2) (b) or (I) (B) (2) (b) of Section 6 Take for example a case where the owner produces evidence which is found to be incorrect or which does not appear to be satisfactory; Can the assessing authorities in such a case resort to sub section(4) of Section 9 stating that it is not possible to determine the standard rent on the principles set out in sub section (I) (A) (2) (b) or (1) (B) (2) (b) of Section 6.
The assessing authorities would obviously have to estimate for themselves, on the basis of such material as may be gathered by them, the reasonable cost of construction and the market price of the land and arrive at their own determination of the standard rent.
This is an exercise with which the assessing authorities are quite familiar and it is not something unusual for them or beyond their competence and capability.
It may be noted that even while fixing standard rent under sub section (4) of Section (9), the assessing authorities have to rely on such material as may be available with them and determine the standard rent on the basis of such material by a process estimation.
The fourth category of premises we must deal with is the category where the premises are constructed in stages.
The discussion in the preceding paragraph f this Judgment provides an answer to 474 A the question as to how the rateable value of this category of premises is to be determined when the premises at the first stage of construction are to be assessed for rateable value, the assessing authorities would first have to determine the standard rent of the premises under sub section (2) (a) or 2 (b) or (1) (A) (2) (b) or (I) (B) (2) (b) of Section 6 as may be applicable and keeping in mind the upper limit fixed by the standard rent and taking into account the various factors discussed above, the assessing authorities would have to determine the rent which the owner of the premises may reasonably expect to g t if the premises are let out to a hypothetical tenant and such rent would represent the rateable value of the premises When any addition is made to the premises at a subsequent stage, three different situations may arise.
Firstly, the addition may not be of a distinct and separate unit of occupation but may be merely by way of extension of the existing premises which are self occupied In such a case the original premises together with the additional structure would have to be treated as a single unit for the purpose of assessment and its rateable value would have to be determined on the basis of the rent which the owner may reasonably expect to get, if the premises as a whole are let out, subject to the upper limit of the standard rent determinable under the provisions of sub section (I) (A) (2) (b) of Section 6.
Secondly, the existing premises before the addition might be tenanted and the addition might be to the tenanted premises so that the additional structure also form part of the same tenancy.
Where such is the case, the standard rent would be liable to increase under Section 7 and such increased rent would be the standard rent of the premises as a whole and within the upper limit fixed by such standard rent, the assessing authorities would have to determine the rent which the owner may reasonably expect to get if the premises as a whole are let out as a single unit to a hypothetical tenant and in such a case, the actual rent received would be a fair measure of the rent which the owner may reasonably expect to receive from such hypothetical tenant unless it is influenced by extra commercial considerations.
Lastly, the addition may be of a distinct and separate unit of occupation and in such a case, the rateable value of the premises would have to b determined on the basis of the formula laid down by us for assessing the rateable value of premises which are partly self occupied and partly tenanted.
The same principles for determining of rateable value would obviously apply in case of subsequent additions to the existing premises.
The basic point to be noted in all these cases is and this is what we have already emphasised earlier that the formula set out in sub section 475 (I) (A) (2) (b) and (1) (B) (2) (b) of Section 6 cannot be applied for determining the standard rent of an addition, as if that addition was the only structure standing on the land The assessing authorities cannot determine the standard rent of the additional structure by taking the reasonable cost of construction of the additional structure and adding to it the market price of the land and applying the statutory percentage of 7 1/2 to the aggregate amount.
The market price of the land cannot be added twice over, once while determining the standard rent of the original structure and again while determining the standard rent of the additional structure.
Once the addition is made, the formula set out in sub section (I) (A) (2) (b) and (I) (B) (2) (b) of section 6 can be applied only in relation to the premises as a whole and where the additional structure consists of a distinct and separate unit of eccupation, the standard rent would have to be apportioned in the manner indicated by us in the earlier part of this Judgment.
These are the principles on which the rateable value of different categories of properties is liable to be assessed under the Delhi Municipal Corporation Act 1957.
The same principles would a fortiorari apply also in relation to assessment of rateable value under the Punjab Municipal Act, 1911.
Since there are a number of writ petitions and appeals before us and they involve different fact situations we do not think it would be convenient to dispose them of finally by one single Judgment We would therefore direct that these writ petitions and appeals shall be placed on Board on some convenient date so that they can be disposed of in the light of the principles laid down in this Judgment.
| The Government of India by a notification dated April 6,1984, exempted tyres from a certain percentage of Excise Duty to the extent that the manufacturers had not availed themselves of the exemption granted under certain other earlier notifications.
The Customs and Excise Department was of the view that the Respondent company who was a manufacturer of Tyres, Tubes and various other rubber products was not entitled to the aforesaid exemption as it had cleared the goods earlier without paying Central Excise Duty but on furnishing Bank Guarantees under various interim orders of courts.
The Company claimed the benefit of exemption to the tune of about Rs. 6 crores and filed a Writ Petition in the High Court and sought an interim order restraining the Central Excise authorities from the levy and collection of excise duty.
The High Court held that a prima facie case had been made out in favour of the company and by an interim order allowed the benefit of the exemption to the tune of about Rs. 2 crores and directed that the goods be released on furnishing a Bank Guarantee.
In the Department 's appeal, the Division Bench confirmed the above order with a slight modification to the effect that the Collector of Central Excise could encash 30 per cent of the Bank Guarantee.
Allowing the appeals by the Department, this Court, ^ HELD: 1.
The orders of the Single Judge as well as the Division Bench are wholly unsustainable and should never have been made, Even assuming the 191 company had established a prima facie case, it was not a sufficient justification A for granting the said interim orders.
There was no question of any balance of convenience being in favour of the respondent Company, it was certainly in favour of the Government of India.
[201B C] 2.
Governments are not run on mere Bank Guarantees.
Very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice.
No Governmental business, for that matter no business of any kind can be run on mere Bank Guarantees.
Liquid cash is necessary for the running of a Government as indeed any enterprise.
[201C] 3.
Where matters of public revenue are concerned, it is of utmost importance that interim orders are not to be granted merely because prima facie case has been shown.
More is required.
The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest.
[201D1 4.
Article 226 is not meant to short circuit or circumvent statutory procedures.
It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it, that recourse may be had to article 226.
The Court must also have good and sufficient reason to by pass the alternative remedy provided by statute.
Matters involving the revenue where statutory remedies are available are not such matters.
The vast majority of the petitions under article 226 are filed solely for the purpose of obtaining interim orders and thereafter to prolong the proceedings by one device or the other.
This practice needs to be strongly discouraged.
[194F H; 195A] E 5.
There are, cases which demand that interim orders should be made in the interests of justice.
Where gross violations of the law and injustices are about to be, or are perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief.
In cases where denial of interim relief may lead to public mischief, grave irreparable private injury, or shake a citizen 's faith in the impartiality of public administration, a court may well be justified in granting interim relief against public authority.
Samarias Trading Company Pvt. Ltd. vs section Samuel and Ors.
, ; , Siliguri Municipality vs Amalendu Das, , Titaghur Paper Mills Co. Ltd. vs State of Orissa, , Union of India vs Oswal Woollen Mills Ltd., ; and Union of India vs Jain Shudh Vanaspati Ltd., C.A. No. 11450 of 1983; referred to.
In India, under article 141, the law declared by the Supreme Court shall be binding on all courts and under article 144 all authorities civil and judicial shall act in aid of the Supreme Court.
[200B] 7.
In the hierarchical system of Courts which exists in our country it is 192 necessary for each lower tier, including the High Courts to accept loyally the decisions of the higher tiers.
The better wisdom of the Court below must yield to the higher wisdom of the Court above.
[199E F] 8.
The label per incuriam is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard a decision of the Supreme Court.
[199H; 200A] Cassel and Co. Ltd. vs Broome, ; and Rookes vs Barnard, ; , referred to.
|
Appeal No. 1166 of 1971.
Appeal by special leave from the Award dated December 19, 1970 of the Central Government Industrial Tribunal, Jaipur in Case No. CIT 10 of 1968.
M. C. Setalvad, K. K. Jain, C. N. Sharma, C. section Patel and Bishamber Lal, for the appellant.
M. K. Ramamurthi and J. Ramamurthi, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by special leave from an award of the Central Government Industrial Tribunal, Rajasthan directing the reinstatement of one Bhisham Verma in the service of the appellant with full back wages.
The facts are as follows.
The appellant is a public limited company with its registered office at Sawaimadhopur in the State of Rajasthan.
It has a cement factory at the said place besides a limestone quarry at Phallodi situate at a distance of 24 kms.
from the cement factory.
It has two separate sets of Standing Orders for the workmen employed in the factory and in the quarries.
Both sets of Standing Orders were certified in accordance with the provisions of the Industrial Employment (Standing Orders) Act,1946.
The Standing Orders applicable to the workmen employed in the factory were certified in the year 1954 while those applicable to the workmen of the quarries were certified in the year 1961.Up to April 1967 both sets of Standing Orders provided for superannuation of the workmen at the age of 55 with a stipulation for extension up to 60 years if a workman was found fit to work.
On a dispute having been raised for the raising of the age of superannuation of the workmen at the cement factory, a settlement was arrived at between the appellant and the respondent (a registered trade union of the employees) on 16th December 1966 whereby it was agreed that Standing Order No. 21 applicable to the cement factory be amended by raising the age of superannua(ion from 55 to 58 years without making any provision for further 298 extension.
A joint application following upon the agreement was moved by the appellant and the respondent for modifying the, Standing Order No. 21 with respect to the age of superannuation which was accordingly done.
Nothing was however done with regard to the age of superannuation of the, employees at the quarry, the relevant clause in the Standing Order remaining unaltered.
On April 3, 1968 the appellant intimated the said Bhisham Varma, incline driver at the quarry, that he "had exceeded the age of retirement on 3 4 1968" and as such he was given "notice of retirement in accordance with clause 21 of the Standing Orders of the quarries with effect from the close of work on 2 5 1968".
On April 30, 1968 the said workman wrote to the appellant that although according to the service file he had completed the age of 55 years as indicated, his proper age according to his horoscope was about 50 years and his service record should be amended accordingly.
The appellants ' reply to the above dated July 9, 1968 was to the effect that his case had been reexamined and that his retirement, as already intimated on 3 4 1968 would stand.
The Union took up the cause of the worker and addressed a letter on July 18, 1968 to the Regional Labour Commissioner requesting that arrangements may be made to put the worker back to work and take proper legal proceedings.
On behalf of the workman it was represented that he had been working in the company since October 11, 1957, that the Personnel Manager of the, quarry had, given orders dismissing him from service on April 3, 1968 and that in spite of objections made by the workman that there was a mistake in the papers of the company with regard to his age which was 50 as supported by his horoscope and doctor 's certificates the action of the quarry manager was illegal and contrary to service contract.
The record does not show what if any other steps were taken by the parties when the Central Government made an order of reference under section 10(1) (d) of the Industrial Disputes Act ,reading : "Whether the action of the management of the Jaipur Udyog Limited, P.O. Phallodi Ouarry, Sawaimadhopur in terminating the services of Bhisham Varma, incline driver, with effect from 9th July 1968, on grou nds of superannuation was legal and justified ? If not to what relief is he entitled ? Before the Tribunal, the respondent Union filed a statement of claim wherein after reciting the action taken by the appellant and the representation made by the workman it was stated that the quarry and the cement factory were under one and the same management and there was complete financial integrality between the activities of the company at both the places.
It was also said 299 that workmen could be transferred from one place to another and that a,.
a result of the settlement mentioned, the company could not retire any workman before he attained the age of 58 years.
The settlement was said to apply to the workmen employed.
at both the places.
The Union further submitted that the company could not insist on two sets of conditions of service covering different sections of the same workmen in the same establishment, that the age of retirement was not a subject mentioned in the Schedule to the Industrial Employment (Standing Orders) Act and as such.
no Standing Order could be certified on this topic.
In its reply to the above, the company took the stand that the settlement arrived at in respect of the cement works Karmachari Sangh, Sawai Madhopur was not ipso facto applicable to the quarry inasmuch as the proper authority under the in respect of the cement works was the Government of Rajasthan whereas the appropriate Government in respect of the quarries was the Government of India.
It was said further that in pursuance of the settlement arrived at in 1966 the Standing Orders were amended by the Certifying Officer of the Government of Rajasthan as a result whereof the age of superannuation in the works at Sawai Madhopur was raised to 58.
This however did not alter or modify the position prevailing in the quarries which were governed by a separate set of orders certified by the Certifying Officer of the Government of India.
The Tribunal took the view that the cement factory and the quarries were two units of the same establishment and that consequently there should be a uniform set of rules for the workmen of the company as a whole and it was immaterial that in the case of one unit the Standing Orders had to be certified by the Certifying Officer of the Government of India and in the other by the Officer appointed by the Government of Rajasthan.
The Tribunal was further of the view that the clause as to superannuation could not be provided in the Standing Orders under the relevant Act and certification could not attach enforceability to them even on the ground that the workers did not challenge such provision before the Certifying Officer.
In the result the Tribunal held that there could not be a lower age limit of superannuation for workmen at the Phallodi Quarry specially in view of the fact that workmen were admittedly transferable from one place to the other.
As a consequence of the above finding, the Tribunal quashed the order and directed the reinstatement of the workman with full back wages.
On behalf of the company the first contention raised by Mr. Setalvad was that the Tribunal had gone wrong in construing the order of reference to include a dispute as to whether it was open to the company to have two sets of Standing Orders providing for 300 different ages of superannuation.
Mr. Setalvad argued that in view of the correspondence terminating with the representation by the Union to the Conciliation Officer, it was abundantly clear that the dispute between the parties was whether or not the company was justified in coming to the conclusion +hat the workman concerned had reached the age of 55 on April 3, 1968 and as such was to be superannuated in terms of the Standing Orders.
The letter of the 9th July 1968 by the Company to the workman reads as follows Please refer to your application dated 30 4 1968 received by us on 8 5 1968 along with a copy of your horoscope in Hindi.
The Management has reexamined your case and come to a final conclusion that your retirement from the service of the company as intimated to you vide our memo No. Pq/B/186 dated 3 4 68 should stand.
You are, therefore, directed to collect your dues, if any, from our Accounts Department on any working day after producing necessary clearance certificate.
" Of necessity, reference had to be made by the Tribunal to ,the application of the workman dated April 30, 1968 with a copy of his horoscope.
The said latter expressly complained of the alleged inaccuracy in the service record pertaining to him according to which the writer had not completed the age of 55 years on the 3rd April.
The workman 's representation was that his age had been inaccurately recorded, , ',hat his proper age was 50 and that the records should be corrected accordingly.
In our view, if the Tribunal had taken care to examine what was the dispute between the parties when the Government made ,the order of reference it would have had no difficulty in realising that no dispute was raised either by the workman or the Union that the age of superannuation governing the workman was not 55 years.
It was certainly open to the workman to contend that his age of superannuation should be fixed at 58 and not 55 years and it would have been equally open to the Union to raise the point in their representation to the Conciliation Officer.
If that had been done, the Government of Rajasthan could have property made a reference of a dispute between the parties regarding the correct age of superannuation and the adjudication of the dispute regarding the superannuation of the workman concerned on that basis.
Nothing was however shown to us, apart from the documents already referred to, to enable us to find that any question had been raised before the Government of Rajasthan relating to the age of superannuation of the workmen at the quarries or that there was any basis for apprehension of such a dispute and it was therefore not open to the Tribunal to enlarge the ambit of the dispute between the parties by reference to the difference in the 301 age of superannuation under the two sets of Standing Orders.
Mr. Setalvad drew our attention to the judgment of this Court in Tile Sindhu Resettlement Corporation Ltd. V. The Industrial Tribunal of Gujarat & Ors.(1) for the proposition that unless a dispute was raised by the workman with their employer it could not become an industrial dispute.
Respondent No. 3 before this Court in that case was employed by the appellant as an accounts Clerk at Gandhidham in the year 1950.
Some years thereafter his services were placed at the disposal of the subsidiary.
company of the appellant.
The respondent was appointed in the said subsidiary company on a different set of conditions of service.
He worked with that company up to February 1958 when his services were terminated after payment of retrenchment compensation and other dues by the said subsidiary company.
The respondent then went to the appellant and requested that he might be given posting orders.
The appellant declined to do so on the ground that the post which he was occupying in 1953 had been permanently filled up.
Thereupon the respondent demanded retrenchment compensation from the appellant also.
As the representations of the respondent were not fruitful, conciliation proceedings were started and ultimately, on the report of the Conciliation Officer, the State of Gujarat referred the dispute to, the Industrial Tribunal.
The matter referred for adjudication was, "whether the said respondent should be reinstated in the service of the appellant and be paid back wages from 21st February, 1958.
" The Tribunal directed reinstatement and payment of back wages.
In allowing the appeal, this Court observed that the respondent workman had only asked for payment of retrenchment compensation and did not raise any dispute for reinstatement.
According to this Court (see p. 522): ".
the evidence produced clearly showed that no such dispute (i.e. relating to reinstatement) had ever been raised by the respondent with the management of the appellant.
If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer.
Relying on the above decision Mr. Setalvad argued that in order that a reference can be construed to embrace a particular dispute it must be shown that a demand had been made by the workman and not accepted by the employers so as to give rise to a dispute which in the view of the Government required adjudication.
Mr. Ramamurty on behalf of the respondents drew our attention to the provisions of section 10(1) of the and in particular to clauses (c) and (d) thereof.
He argued that it was open to the appropriate Government in an appropriate case to (1) ; 302 refer a dispute along with any matter appearing to be connected with or relevant to the dispute and no objection could be taken to the award of a Tribunal where the Tribunal had not transgressed the limits of cls.
(c) and (d) of section 10(1) of the Act.
It was further contended that the proper age of superannuation applicable to the company as a whole was so intimately connected with or relevant to the dispute which actually arose between the parties prior to the order of reference as to lead us to hold that the Tribunal had not gone beyond its jurisdiction in construing the order of reference to embrace an adjudication as to proper age of superannuation of a workman like Bhisham Verma.
In our view, the finding of the Tribunal that the Company could not fix a lower age limit of superannuation for workmen at the quarries went beyond the scope of reference which had to be gathered from the circumstances preceding the Government Order.
The Tribunal never addressed itself to the point of view of the workman that his proper age was only 50 and not 55; nor did it come to a finding that the true age of the workman being 50 years in 1968 there was no question of his superannuation in that year.
Mr. Setalvad raised a further point that so, long as the quarried, had a different set of Standing Orders prescribing a different age of superannuation from that fixed under,the Standing Orders relating to the cement works, the tribunal could not have disregarded the Standing Orders as it had purported to do and lay down that the age of superannuation of all workmen should be 58 as found" by it.
Our attention was drawn to section 2 (g) of the Industrial Employment (Standing Orders) Act and to section 3(2) of the said Act under which provision had to be made in Standing Orders for all matters set out in the Schedule to the Act.
According to Mr. Setalvad, item 8 of the Schedule reading: "Termination of employment, and the notice thereof to be given by employer and workmen." allowed the framing of Standing Orders with regard to age of superannuation.
Mr. Ramamurty on the other hand contended that this item could not possibly embrace such a matter as the age of superannuation but was limited to voluntary acts of the employer or the workmen to put an end to the employment without any question of superannuation.
Arguments were advanced at some length by counsel on either side on this point, but in the view which we have taken on the first point as to the jurisdiction of the Tribunal, we find it unnecessary to decide this point.
in the result we hold that the award of the Tribunal was in competent as the dispute which it sought to adjudicate upon was not the one referred.
The award will therefore be set aside, but in the circumstances of the case, we make no order as to costs.
S.C. Award set aside.
| The appellant, who was less than 20 years was convicted for an offence under section 7(1) of the , and was ordered to furnish a bond under section 4 of the .
The High Court revised the sentence, because section 16 of the Prescribed a minimum sentence of imprisonment for 6 months and a fine of Rs. 1000.
Allowing the appeal to this Court, HELD : Section 4(1) of the contains the non obstante clause notwithstanding anything contained in any other law for the time being in force, and hence the section would have overriding effect and shall prevail if its other conditions are fulfilled; especially when the was enacted in 1958 subsequent to the enactment in 1954 of the .
[317 A C; 318 D E] According to section 18 of the , that Act shall not affect section 5(2) of the Prevention of Corruption Act which also prescribes a minimum sentence of imprisonment.
The fact that only one offence for which a minimum sentence of imprisonment is prescribed, has been specified shows that in the case of other such offenses, the provisions of the can be invoked [317H; 318 A C] Assuming there is some ambiguity, the principle to be applied in construing a penal statute is that such doubt should be resolved in favour of the person who would be liable to the penalty.
[318 D] Adulteration of food is a menace to public health and the has been enacted to eradicate the evil.
Therefore, courts should not lightly resort to the provisions of the probation of Offenders Act in the case of persons above 21 years of age; but the Act makes a distinction between offenders below 21 years and those above that age.
As regards person under 21 years, the policy of the law is that such a person, even in the case of conviction under the , should not be deprived of the advantage of the which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology.
[318 G H; 319 A C] As the object of the is to avoid imprisonment of a person covered by its provision, ,, that object cannot be set at naught by imposing a sentence of fine which would entail imprisonment in case of default.
[319 D] Rattan Lal vs State of Punjab ; and Ramji Missir vs State of Bihar [1962] Supp. 2 S.C.R. 745, referred to. 313
|
vil Appeal Nos. 208 and 209 (NT) of 1975.
From the Judgment and Order dated 4th August, 1971 of the Andhra Pradesh High Court in Reference Case No. 12 of 1968.
K.B. Rohtagi for the Appellant.
V. Gauri Shankar and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by PATHAK, CJ.
These appeals by special leave are directed against the judgment of the High Court of Andhra Pradesh answering the following two questions of law in favour of the Revenue and against the assessee: 1.
Whether the Tribunal was right in hold ing that the re assessments being only conse quent on a change as to the method of computa tion of the profits the initiation of proceed ings under section 148 for each of the assessment years 1959 1960 and 1960 61 was justified? 2.
Whether the Tribunal was right in law in holding that the original assessment for each of the years having been made on the agents, the re assessment proceedings could not be initiated against the assessee direct? The appellant assessee is a non resident sterling compa ny whose business consists in the purchase of tobacco from India and its sale outside.
The tobacco is sold directly on the assessee 's own account and for commission on behalf of others.
The purchases of tobacco were 734 effected through the British India Corporation Ltd., Guntur, who were appointed agents of the assessee under section 43 of the Indian Income tax Act, 1922.
For the assessment years 1959 60 and 1960 61, the agents filed returns of income on behalf of the assessee.
The Income tax Officer, Guntur, after examining the balance sheet and profit and loss account of the assessee for the relevant previous years, the calendar years 1958 and 1959, completed the assessments under section 23(3) of the Indian Income tax Act, 1922.
For the year 1.958 the gross profit on the sale of Indian tobacco, including commission, was shown in the balance sheet and profit and loss account of the assessee at 11,108.
As the assessee carried on business not only in India but in other places, the Income Tax Officer worked out the proportionate overhead expenses of the assesse for its business in India at L16,760 taking the total sales of tobacco at L534031 and the sales of Indian tobacco at L448590.
The Income Tax Officer comput ed the loss at L5652, and one half of this amount namely L2826 (Rs.37680) was taken as the adjusted loss, being the percentage attributable to the purchasing operation in India.
On the same basis for the assessment year 1960 61, after setting off the income against the previous loss, the total loss was found to be Rs.96,482.
Subsequently, in the course of assessment proceedings for the assessment year 1962 63, the Income Tax Officer appears to have noticed that a mistake had been committed in the computation of the over head expenditure.
The return filed on behalf of the assessee for that year had disclosed that the over head expenses were attributable to the entire business of the assessee, including the business as commis sion agents, and not merely for the business of purchase and sale of tobacco.
The Income Tax Officer believed that he ought to have first computed the proportionate overhead expenses in relation to the total profits by taking the proportion which the profits bore to the total of profits and commission, and then worked out the proportionate over head expenses for the profits arising out of the Indian sales.
On that basis he determined that the adjusted profits would be L160 (Rs.2253), and this would have to be substi tuted in place of the loss of Rs.37,680 arrived in the original assessment, Similarly for the assessment year 1960 61 the Income Tax Officer realised that the original assessment would have to be varied accordingly.
In the opinion that income had escaped assessment for the two assessment years 1959 60 and 1960 61, he issued notices on 18 January, 1964 under section 148 of the Income Tax Act, 1961 to the statutory agents.
The agents contested the validity of the notices and contended that in view of section 149(3) of the Act no notice of re assessment could be served on the agent of a non resident assessee after the expiry of two years from the end of the relevant assess 735 ment year.
The Income Tax Officer upheld the objection and dropped the proceedings.
Thereupon the Income Tax Officer issued notice under section 148 for the two assessment years directly to the assessee to their London address on 29 February, 1964.
The assessee filed returns on 19 August, 1964 for both the years under protest, contending that it could not be served with those notices inasmuch as the Income Tax Officer had already, proceeded against its agents.
The Income Tax Officer reject ed the objections and made re assessments on the assessee for the two assessment years.
The appeals filed by the assessee before the Appellate Assistant Commissioner were dismissed, but in second appeal the Income Tax Appellate Tribunal took the view that the re assessments proceeded on a mere change of opinion on the part of the Income Tax Officer and, therefore, were without jurisdiction, and further as the assessments had been made originally on the agents it was not open to the Income Tax Officer to proceed directly against the assessee.
According ly, the Appellate Tribunal allowed the appeals and set aside the re assessments made on the assessee.
At the instance of the Revenue, the Appellate Tribunal referred the two questions of law set forth earlier to the High Court of Andhra Pradesh for its opinion.
On the first question the High Court held that it was not a mere change of opinion on the part of the Income Tax Officer pursuant to which he made the re assessments, but that the Income Tax Officer had received information subsequent to the original assessments from the records of the subsequent assessment year that the overhead expenses related to the entire busi ness, including the business as commission agents, and not merely to the business of the purchases and sales of tobac co.
On the second question the High Court held that there was nothing to prevent the Income tax Officer, when he found that re assessment proceedings could not be taken against the agents, from proceeding directly against the assessee and re assessing it for the two assessment years.
Two points have been urged before us by learned counsel for the assessee.
It is contended that the Income Tax Offi cer has no jurisdiction to take proceedings under sections 147 and 148 of the Income tax Act because the conditions pre requisite for making the reassessments were not satisfied.
The re assessments were made with reference to cl.
(b) of section 147 of the Act, and apparently the Income Tax Officer pro ceeded on the basis that in consequence of information in his possession he had reason to believe that income charge able to tax had 736 escaped assessment for the two assessments years.
From the material before us it appears that the Income Tax Officer came to realise that income had escaped assessment for the two assessment years when he was in the process of making assessment for a subsequent assessment year.
While making that assessment he came to know from the documents pertain ing to that assessment that the overhead expenses related to the entire business including the business as commission agents and were not confined to the business of purchase and sale.
It is true, as the High Court has observed, that this information could have been acquired by the Income Tax Officer if he had exercised due diligence at the time of the original assessment itself.
It does not appear however, that the attention of the Income Tax Officer was directed by anything before him to the fact that the overhead expenses related to the entire business.
The information derived by the Income Tax Officer evidently came into his possession when taking assessment proceedings for the subsequent year.
In the circumstances, it cannot be doubted that the case falls within the terms of cl.
(b) of section 147 of the Act, and that, therefore, the High Court is right in holding against the assessee.
The second point urged before us is that when the Income tax Officer had taken the assessment proceedings against the Indian agent of the assessee it was not open to him to take assessment proceedings against the assessee.
It is open to an Income Tax Officer to assess either a non resident asses see or to assess the agent of such nonresident assessee.
It cannot be disputed also that if an.
assessment is made on one there can be no assessment on the other, and therefore, in this case if the assessment had been made on the Indian agent the assessment could not have been made on the asses see.
However, the facts show that the re assessment proceed ings commenced on the agent were found to be barred by time by reason of section 149(3) of the Act.
The issue of notice under section 148 of the Act to the agent after the expiry of two years from the end of the relevant assessment year is prohibited by the statute.
The Income Tax Officer dropped the proceed ings when he was made aware of that prohibition.
The assess ment proceedings taken by him against the agent have to be ignored and cannot operate as a bar to assessment proceeding directly against the assessee.
On this point also the High Court has taken the correct view when it answered the ques tion in favour of the Revenue.
In the result the appeals fail and are dismissed with costs.
N.P.V. Appeals dismissed.
| An institution being fully funded by the respondent Administration was taken over and the affected stuff ab sorbed in its services in the time scale of pay.
The peti tioners who comprised the said staff were not given pension ary benefits upon retirement.
They, therefore, filed these writ petitions.
This court in a petition by one of the affected employ ees (Smt.
Rekha Mehta vs Delhi Administration, W.P. (C) No. 539 of 1987 decided on April 4, 1988) had directed payment of pensionary benefits.
However, the case of the respondent was that the said decision having been rendered in a partic ular case, it would not be applicable to the petitioners in the instant case.
Allowing the writ petitions, HELD: The services in an institution under the control of and fully funded by the respondent Administration having been taken over by it and the staff absorbed in the time scale of pay, it could not be said that they would not be entitled to ordinary facilities like the pensionary benefits available to other staff.
[602D] The case of one of the employees having been decided by this court, it was expected that without resorting to any of the methods, the other employees identically placed would have been given the same benefit.
[602G] [The petitioners to be paid pensionary benefits within three months.
The matter to be considered at the appropriate level to see that such things do not happen in future, so that unnecessary litigation is avoided and cost to the public exchequer is saved.]
|
minal Appeal No. 165 of 1968.
Appeal by special leave from the judgment and order dated February 8 1968 of the Allahabad High Court in Criminal Appeal No. 2305 of 1965.
916 A. section R. Chari J. P. Goyal and G. section Chatterjee, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Dua, J.
In this appeal by special leave the appellant Matru alias Girish Chandra challenges his conviction under section 302 read with section 34, I.P.C. and under section 382, I.P.C.
For the former offence he was sentenced to imprisonment for life and for the latter to rigorous imprisonment for four years.
Both the sentences were directed to ran 'concurrently.
The appellant, along with Mohar Singh and Saheb Singh were committed to the court of Sessions for trial for offences under sections 302/34, I.P.C. for the murder of Smt.
Omwati, wife of Ram Chander (P.W. 1) and of their three years old son Sua Lal and under section 382, I.P.C. for committing theft of cash, armaments and other things from the house of the deceased.
The offences were alleged to have been committed on May 29, 1964 between 10 and II a.m. in the township of Shamsabad.
The appellant and the deceased were admittedly next door neighbors in Mohalla Chaukhanda at the relevant time.
Rain Chandra had two sons, the elder one Ramji being six years old.
On the day of occurrence at about 9 a.m.
Ram Chandra left his house for his shop about three, furlongs away, leaving behind in the house his wife and two sons.
About an hour later Omwati sent the elder son to the shop with some food for his father.
A few minutes later Ram Chandra sent to his house some vegetables through his servant.
After sometime his servant returned to the shop and informed Ram Chandra that his wife was lying in the house in pool of blood.
After calling his nephew to look after the shop Ram Chandra immediately went to his house and found his wife lying dead in the courtyard near the well whereas his 3 year old son Sua Lal was lying dead in a room close to the courtyard.
The box inside the room also appeared to have been opened and its contents pilfered.
Some gold and silver omaments which his deceased wife was wearing that morning were found missing.
Information of the occurrence was lodged at the police station Shamsabad at about 12.40 in the afternoon.
But as he did not suspect anyone he merely stated the circumstances in which he came to know of the occurrence and found his wife and child dead in the house.
It was stated in the report that Rs. 200/ in cash and three ornaments including a ring had been taken away by the miscreants.
Matru, appellant, who was the next door neighbour came to Ram Chandra 's house before the first information report was lodged and remained with him till the 917 report was made to the police.
The investigating officer found blood at both the places where the two dead bodies were lying.
The blood stained and unstained earth was collected and sealed.
Next morning it appears Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) went to see Ram Chandra between 6, and 7 a.m. Chhotey Lal informed him that he (Chhotey Lal) had seen Matra and two unknown persons entering Ram Chandra 's house at about 10 or 10.30 a.m. on the previous day and Nathu Lal gave him the information that at about 11 a.m. on the day of the occurrence he had seen Matru and.
two other persons coming out of his house.
These witnesses at that time did not attach any importance to the three persons entering and after some time coming out of Ram Chandra 's house.
However, later when they leamt about the double murder in Ram Chandra 's house between 1 0 and II a.m. they thought that they should tell Ram Chandra what they had seen on the morning of May 29 at about the time of the occurrence.
It is said that about six months prior to the occurrence relations between Omwati and the wife of Matru, appellant, had become strained.
One of Matru 's daughter was married and the other was of marriageable age but both were living with their parents.
Omwati suspected that some 'people used frequently to visit Matru 's house without any cogent reason and also gave currency to this fact.
Matru 's wife naturally resented this.
About six months prior to, the occurrence an incident is stated to have taken place which gave rise to a quarrel between the two women.
Matru 's wife threw a stone which struck Omwati on her head.
Ram Chandra did not attach much importance to this incident considering it to a matter of common occurrence amongst womenfolk.
Later, however, Omwati seems to have told her husband that she had been threatened by Matru 's wife with dire consequences.
Ram Chandra advised his wife not to have anything to do with Matru 's wife.
After the occurrence, the appellant, it appears, remained in his house till the inquest was over but thereafter he seems to have disappeared.
On receiving in formation about Matru and his two companions going into his house and coming out a short while later round about the time of the occurrence, Ram Chandra informed the investigating officer what he had been told by Chhotey Lal and Nathu Lal.
The Sub Inspector searched the appellant 's house at about 9 a.m. on May 30, but he was not found there, nor was any incriminating thing found in the house.
A search for the appellant was made but he could not be traced till three days later.
On June 1, when the investigating officer learnt that Matru was likely to go to his village to see his children he was apprehended and on search of his person a spectacle case containing a pair of spectacles and a gold ring was recovered from the folds of his dhoti.
Complicity 918 of Mohar Singh because known to the police on Matru 's interrogation.
But Mohar Singh could not be arrested till September 13, 1964.
When arrested, he offered to recover a shawl, one of ,the stolen properties, which he had sold to Darbarilal (P.W. 17) for Rs. 70/ .
The shawl was accordingly recovered at Mohar Singh 's instance from Darbarilal.
Saheb Singh was also arrested on suspicion.
The Sessions Judge found the appellant guilty of murder and also of an offence under section 382, I.P.C. Since there was no evidence of specific part played by the appellant the extreme penalty was not imposed on him.
As observed earlier under section 382, I.P.C. he was sentenced to four years rigorous imprisonment.
Mohar Singh was, acquitted of the offence under section 302/ 34, I.P.C. as also of the offence under section 382, I.P.C. He was, however, convinced for an offence under section 411, I.P.C. and sentenced to rigorous imprisonment for two years.
Saheb Singh was given benefit of doubt and acquitted.
The only evidence against Saheb Singh was that of his by Nathu Lal (P.W. 10) which was not corroborated by any other evidence and identification alone in the circumstances was considered unsafe for convicting him.
Both the convicts appealed to the High Court.
That Court came to the conclusion that Matru had a motive to commit the crime and that Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) were reliable witnesses and that the investigation was neither tainted nor unfair to the accused.
The statement of Ram Chandra (P.W. 1), husband of the deceased, and his conduct throughout also appeared to be quite strains forward.
The ring, which had been recovered from Matru 's possession at the time of his arrest was held to be the one which the deceased was wearing when her husband left the house in the morning of the occurrence.
This was considered to be a very incriminating circumstance.
All these circumstances taken along with the fact that Matru had absconded were held to connect the appellant with the crime beyond reasonable doubt.
Mohar Singh, from whose possession nothing had been recovered was given benefit of doubt and acquitted.
The recovery of the shawl from Darbarilal in the absence of any writing was not considered to be incriminating enough to justify Mohar Singh 's conviction because it did not exclude reasonable doubt about his innocence.
In this Court it was strongly argued on behalf of the appel lant Matru that the circumstantial evidence does not establish his complicity in the offence charged.
The Police investigation was also assailed and it was submitted that identification of the articles 919 alleged to have been stolen and later recovered was not of much value because the articles alleged to have been recovered were commonly available and had no distinguishing marks of identification Objection was also raised to the admissibility of exhibit Ka 4, a letter Written by the deceased to her father in which reference was made to injury received by her as a result of a brick thrown by Matru 's wife.
This ground was not included in the original memorandum of appeal dated May 1, 1968 presented in this Court but permission to raise this ground was sought by means of an application dated July 25, 1968 which was allowed by this Court while granting special leave.
It was contended that this letter was inadmissible in evidence as it did not contain any statement relating to the cause of Omwati 's death or to the circumstances of the transaction which resulted in her death.
According to the argument this letter did not fall within the purview of any of the clauses of section 32, Indian Evidence Act under which alone it could be hold admissible in evidence.
Shri Chari also submitted that the other two co accused having been acquitted, section 34, I.P.C. became inapplicable to the case of the appellant and his conviction under section 302 read with section 34, I.P.C. must be held to be con trary to law.
For this submission he relied on Prabhu Babaji Navle vs State of Bombay.(1) Finally counsel argued on the authority of Hanumant vs State of M.P.(2) that in case of circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should be fully.
established and all the established facts should be consistent only with the hypothesis of the guilt of the accused.
In the present case the circumstantial evidence is not of conclusive nature and tendency, said Shri Chari.
Normally this Court doe& not go into the evidence and appraise it for itself in criminal appeals under article 136 of the Constitution because this Article does not confer a right of appeal on a party.
It merely clothes this Court with discretionary power to scrutinise and go into the evidence in special circumstances in order to satisfy itself that substantial and grave injustice has not been done.
In the case before us we are persuaded to go into the evidence because of several exceptional features.
It was a case of circumstantial evidence and the two accused who had been charged along with the appellant under section 302 read with section 34, I.P.C. were acquitted.
The appellant a neighbdur of the deceased, remained With her husband at the place of occurrence till the report was made to the police on the day of the murder.
Indeed, he accompanied Ram Chandra for lodging the report.
The question of admissibility and value of exhibit Ka 4 and the probative value of the identification proceedings of the articles alleged to have been stolen and recovered were also seriously canvassed at the Bar.
And apart from the argument that the circumstantial evidence on (1) A.1 R,1956 S.C.51.
(2) [1952] S.C.R. 1091.
920 the record does not exclude reasonable possibility of the appellants innocence, the further question was raised that if these two pieces of evidence, namely exhibit Ka 4 and the identification of the, articles were to be ignored then there was absolutely no evidence on which a serious argument about the appellant 's guilt could be founded.
Now, the deceased Omwati and her infant son were undoubtedly both murdered at about IO or 1 1 on the morning of May 29, 1964.
Ram Chandra Gupta, the husband of Omwati had no reason to suspect Matru, appellant, (his neighbour) of this crime.
In the F.I.R. exhibit Ka.
IO no one was named as a sus pect and only the following articles of property were stated to be missing :, 1.
Gold chain weighing about 3 tolas, plain twisted design worth Rs. 375/ 2.
One pair of gold jhumki together with kundal weighing 1 1/2 tolas worth, Rs. 1501 ; 3.
One gold ring longitudinal design weighing 1/2 tola worth Rs. 75/ .
this was stated to have been worn by the deceased; and 4.
Currency notes worth Rs. 200/ stated to have, been in the box.
It may here be pointed out that when P.W. I Ram Chandra came into the witness box he attempted to prove exhibit Ka 3, a supplementary list of missing articles which list, he said, had been handed over to the investigating officer soon after the preparation of the inquest report.
The production of this list was objected to and though the trial court relied on it, the High Court ruled it out as hit by section 162, Cr.
P.C. The position, therefore, remains that the description of the ring in the F.I.R. is the only description we have on the record and also that there is no mention of the spectacle case and the spectacles in the F.I.R. Suspicion fell on the appellant only when Chhotey Lal, barber (P.W. 2) and Nathu Lal (P.W. 10) saw Ram Chandra on the following morning (May 30, 1964) and informed him of what they had separately seen on the morning of the 29th at about the time of the alleged murder.
What they conveyed to Ram Chandra has already been noticed by us.
It was on the basis of this information that Ram Chandra is said to have informed the investigating officer about his suspicion against the appellant.
The recovery of the articles, even if the evidence of these two witnesses is believed, would have a material bearing on the case because if the recovery proceedings of the articles said to have been recovered 92 1 from the appellant 's possession does not inspire confidence and it is not possible to hold beyond reasonable doubt that these were the very articles found missing from the house of the deceased, then it may be extremely difficult to sustain the appellant 's conviction on the prosecution evidence.
In this connection particular importance attaches to the ring stated to have been worn by the deceased because if that ring is not proved to be the same which is alleged to have been worn by the deceased Omwati at the time of her murder then no inference would seem to arise against the appellant.
The prosecution case against the appellant is mainly sought to be established by the evidence of P.W. 2 and P.W. 10 and by the evidence relating to the recovery from the appellant of the, articles alleged to belong to the deceased supported by the evidence of motive on the part of the appellant for committing this crime 'and corroborated by the appellant 's alleged conduct in trying to mislead Ram Chandra and the investigating officer and ' finally by disappearing after the lodging of the F.I.R. The trial court, as also the High Court, both relied on these four pieces. of evidence for convicting the appellant.
To begin with it is notworthy that Ram Chandra himself does.
not seem to have thought that the appellant was inimical towards.
the deceased and he did not suspect the appellant of complicity in the murder.
According to his own testimony it was only after Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10), had informed him about what they had seen on the morning of May 29, that he recollected that about five or six months prior to the occurrence there was an altercation between Omwati and the appellant 's wife.
This would clearly indicate that the alleged altercation had not left any serious impact on the mind of Ram Chandra and theapperant 's admitted presence in the house of Ram Chandra till ' the lodging of the F.I.R. indicates that relations between Ram Chandra and the appellant were not openly hostile or unfriendly.
The evidence of P.W. 2 shows that the appellant and two other persons came out of the appellant 's house and entered the house of Ram Chandra on the morning of May 29, and the evidence of P.W. 10 shows that the appellant and two otherpersons came out of Ram Chandra 's house and entered that of the appellant on the same morning a little later.
This evidencehaving been believed by the two courts below may be accepted.
But so far as the question of time when these two witnesses saw the appellant and two other persons going.
into and coming out of Ram Chandra 's house is concerned they seem to have given the time from their impression Ram Chandra (P.W. 1) does not say that P.W. 2 and P.W. 10 had told him on the morning of May 30 that when they saw the appellant and his two com 922 panions on May 29, they had a Potli with them.
It also seems somewhat unbelievable that the appellant with his companions should have entered the house of Ram Chandra with the pur,Pose of committing murder and theft in broad daylight particularly when P.W. 2, a barber who knew him and lives about one furlong away from his house had actually seen him.
It is un.likely that the appellant should have failed to notice P.W. 2.
It is in the evidence of P.W. 2 that the, appellant and his companions came out of the appellant 's house and entered that of Ram Chandra when the witness called out the name of Panditji meaning thereby Puttulal Pandit.
Again, if the appellant and his two companions had committed the gruesome murder of Omwati and Sualal (Omwati aged 25 years had 4 incised wounds, 3 in the neck and one in the abdominal cavity and :Sualal, 3 years old, had three incised wounds on his neck and one on his right wrist) within half ;In hour and had also stolen the articles including a ring, a gold kundal, jhumki and silver iori worn by the deceased on her person and also broken open a box and removed therefrom a shawl and Rs. 200/ within a short span of half an hour as alleged by the prosecution, then it is somewhat surprising that 'their movements and behaviour should not have reflected any abnormality.
At least Nathu Lal does not seem to have noticed any abnormal behaviour which Would excite his suspicion.
Now, the appellant and his companions were seen by P.W. 2 and P.W. 10, broadly speaking, between 1 0 and 1 1 in the morning.
We would give these two witnesses a margin for their inaccuracy in regard to the time as deposed by them in the witness box.
P.W. 2, it may be reCalled, gives the time as between 10 and 10.30 a.m. when he saw the appellant and his companions and.
P.W. 10 gives the time between 10.30 and 11 a.m. when he saw them coming out of the house of P.W. 1.
The F.I.R. was lodged at 12.40 p.in.
which means that Ram Chandra (P.W. 1) must have arrived at his house a little earlier.
The appellant, according to P.W. 1, had been with him when the F.I. Report was got written at his house and he went along with P.W. 1 for lodging the said report.
The behaviour and conduct of the appellant, judged by normal standards, is not suggestive of his involvement in such heinous crime, unless he was an experienced criminal (of which there is no suggestion) with extraordinary balance of mind and a disciplined control over his senses and faculties.
In the absence of any direct evidence this consideration cannot be completely ruled out as irrelevant when weighing the circumstantial evidence in a case like the present.
This takes us to the recovery of the alleged stolen articles from the appellant and their identification.
The main evidence 923 of recovery consists of the statements of Head Constable Ahibaran Singh (P.W. 5) and of Nathu (P.W. 10) and the recovery memo exhibit Ka 1 dated June 1, 1964.
P.W. 5 has.
deposed in his examination in chief that he did not know the appellant.
According to him, an approver had informed him at about 7 p.m. on June 1, that the appellant would be coming to his house that evening to meet his children.
At about 7.30 p.m.,: P.W. 5 along with Bankey, Nathu, Dilasa and two constables sat near Bankey 's house waiting for the appellant.
It was the approver who pointed out the appellant, whereupon, on being.
interrogated by the witness, the appellant tried to run away.
He was, however, apprehended.
In the course of this process the appellant received some injuries.
Now, the person described as the approver has not been produced as a witness and indeed even his identity has not been disclosed.
It is noteworthy that there is no mention of any approver anywhere else on the record.
What is still more intriguing is that even though Nathu was not previously known to the witness, within half an hour of the information about the appellant 's expected visit to his house P.W. 5 managed to collect Nathu and two other persons for arresting him.
The statement made by P.W. 5 in this connection makes interesting reading.
He said: "I received information through an approver at about 7 P.M. that he shall come home to meet his children from the jungle of Imadpur by night.
At this I sat near the house of Bankey by the side of the passage, alongwith Bankey, Nathu, Dilasa and two constables.
Matru, accused present in court came from the side of Imadpur at about 7.30 O 'clock.
The approver pointed him out.
On being interrogated by me, he took to his heels.
I caught him after surrounding and causing slight injuries to him, When I duly searched his person in presence of the witnesses, the case exhibit 3, was recovered from the right plant of the dhoti which he was Wearing.
On opening it, the spectacles, exhibit 2 and ring exhibit I were found in it.
I prepared their memo, exhibit Ka 1 correctly at that spot immediately and obtained the signatures and thumb impressions of the witnesses over it.
I sealed the, articles there after sewing them in cloth.
Before the arrest of Matru, I and the witnesses had searched each other 's persons.
" In cross examination it was elicited from him: "The approver had not told me that he was carrying articles also with him.
I took the witnesses for 924 help.
I did not recognise him also.
Imadpur might be about half a mile from the place where I arrested him.
I did not make people, sit on any other way.
I sat on that very way.
I took Nathu with me while he was coming out of a temple in Mauza Jatpura.
I took Bankey from Bazar Kalan and Dilasa from Mauza Jatpura.
I had not told the witnesses that there was possibility of article s being recovered from him.
I did not know Nathu from before.
I might have seen him.
I did not know that his name was Nathu.
Matru was at a distance of about ten paces towards the South of me when I saw him for the first time.
He was coming from the western side.
" Now, considering the fact that it was only at about 7 p.m. that the approver had informed P.W. 5 that the appellant was coming to 'his house and at 7.30 p.m. the arrest was actually made, it seems to be somewhat surprising that he should have within that short time collected Nathu, whom he did not know before, Bankey and Dilasa from various places and come to the spot in time for ,effecting the appellant 's arrest and search.
Bankey and Dilasa have also not been produced as witnesses.
Nathu, who has appeared as P.W. 10, has stated in his examination in chief about the arrest and search of the appellant in the following words: "On the fourth day of murder, i.e., after a gap of two days at about 7 p.m. the Head constable took me, Bankey and others with him.
One person was keeping his face covered.
He asked me to accompany him saying that he had to arrest a man.
He had taken Dilasa as well.
We sat in moballa Tikuriya near the house of Bankey.
We searched the persons of the cons tables and Head Constable.
We searched the persons of us all.
A little later, Matru accused, present in court came from the western side.
The person who was with us pointed out that he was Matru.
Matru started running away.
At this the Head Constable and the constables caught hold of him.
They gave him one or two danda blows while trying to catch him.
When his person was searched, a case for keeping spectacles, containing a pair of spectacles and a gold ring, was recovered from the right phant of Matru accused.
All these things were sewn in cloth and sealed on the spot.
Memo was prepared there on the spot.
It was read ,out.
My thumb impression was also obtained.
(exhibit Ka 1 read over) Yes.
These very contents were read.
,out (Shown exhibit 1 3 says) Now, I shall not be able to 925 identify the articles as to whether they are the same or some other.
It happened long ago.
" P.W. 16, Jamuna Prasad, retired police constable is another witness who claims to have been present at the time when Matru was arrested.
He was at that time posted as a constable at P. section Shamsabad.
In examination in chief he said nothing about the appellant 's arrest or the recovery of the articles) from him.
It was only in cross examination that he & posed that he was with P.W. 5 at the time of the appellant 's arrest and after arresting him the party returned to the police station at about 8 or 8.30 p.m.
His version is: "Diwanji (presumably referring to P.W. 5) had a talk with one person in my presence.
After that he asked me to go along with him.
So I accompanied him.
We met Bankey witness in Kalan Bazar.
I cannot tell whether Bankey has got some shop or not or if he has got it, where is it ? We met Nathu near the Maria.
After arresting Matroo, we returned to the Police Station at about 8 or 8.30 O 'clock in the evening." He has, however, given no details of the articles recovered nor about the appellant 's search.
The testimony of these witnesses is far from impressive and the story of recovery is difficult to accept on its face value.
The memo of recovery is exhibit Ka 1.
It purports to have been prepared at 7.30 p.m. on June 1, 1964.
According to it on Matru 's search, a spectacle case containing "a spectacle and a gold ring as per description given below corresponding to the case as offence No. 67 under sections 302/380, I.P.C. was recovered from the right side of the phent of his dhoti.
" The description of the articles recovered, according to this memo, is 1.
One spectacle case of black colour, having dark blue colour inside; 2.
One spectacle, having brown frame.
, white glasses, not circular, half frame; 3.
One gold ring, longitudinal deSign, having green enamel with lengthwise, with red and blue flowery design on the enamel.
The ring is somewhat bent.
It is signed by Head Constable, Ahibaran Singh and attested by Bankey, Dilasa and Nathu.
It does not mention the place where the search was effected though the memo is stated to have been prepared in a shop without giving any particulars of the shop.
This memo does not materially add to the oral testimony of recovery.
This is all the evidence of recovery of the articles.
We 926 do not find it safe on this evidence to hold that the articles mentioned in exhibit Ka 1 were recovered from the appellant Possession at the time of his arrest on June 1, 1964 at 7.30 p.m.
Neither P.W. 5, the investigating H. C. nor Nathu, (P.W. 10) can be considered to be witnesses on whom implicit reliance can be placed without proper corroboration from a more disinterested and dependable source.
Having not been impressed by the evidence of recovery, the identification test of the articles can be of little help to the prosecution, though even on that point the prosecution evidence is equally uninspiring.
Identification tests, it may be pointed out, do not constitute substantive evidence.
Such tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines.
Now, although the articles are stated to have been recovered on June 1, the test identification was held by Shri Jwala Prasad Srivastava, Magistrate, on October 23, 1964.
The reason for this delay as suggested is that similar articles had to be procured for mixing up with the articles recovered.
But the manner in which this delayed identification has been held in this case is highly un satisfactory.
Jwala Prasad Srivastava, Magistrate, First Class,, who had conducted the test identification appeared as P.W. 21, in his examination in chief he said: "Even before the dates for identification proceedings were fixed but the identification could not be conducted because similar articles had not been received.
The articles were opened and shown to the contractor once so that correct articles could be brought.
On 13 7 64 he made an application that the articles should be shown to him.
The articles must have been shown to him within some days after that.
The date must have been mentioned there but that order sheet is missing.
Even then I took a precaution that none except the Contractor and the court mohair should see the articles.
Just after showing the articles to the contractor, I got the same sealed in the court room in my presence.
In cross examination he said : "The khol (case) exhibit 3 was old.
Out of the khols which were mixed, one or two were perhaps new.
That too was 'Similar (dissimilar ?) but the dissimilarity was not so much, that I ought to have noted it (shown paper No. 49/147 of S.C. File) Yes, this note is mine. 'The case of the spectacle is old one whereas the mixed cases were new ' (marked exhibit Kha 19).
The counsel for the accused persons moved an application 627 on the same day after the identification proceedings.
I had, read it.
The allegations regarding the ring, were not correct.
So I did not note them in my order.
The order sheet of some particular dates regarding the identification proceedings, were preserved ? The same has been found.
The order sheet of two dates has been found.
Out of them, one bears the signature of my predecessor.
I recognise the same.
(marked exhibit Kha 21).
The other one does not bear the signature of any one.
I do not remember exactly who presented the application exhibit Kha 11.
Perhaps it was moved but the contractor 's man.
That man used to come frequently.
Marginal note on exhibit Ka 11 shown.
That encircled in red pencil and (marked X) I do not recognise the same.
I cannot tell who made this entry and when.
At present I cannot tell on which date the articles were shown.
I did not find any such entry in the record which could tell on which date the articles were shown to the contractor.
Only the word "allowed" is written with the date 13 7 64. . articles before me.
I do not remember his name.
I can only recognise him by face.
It is quite wrong that on 1 9 64 these articles were brought to the court and were shown to the witnesses.
I do not remember orally on which date these articles were taken out from the malkhana.
It is wrong to say that all the articles which were to be mixed, were dissimilar.
Only the cases of the spectacles were somewhat new.
The statement of this witness reveals the unsatisfactory manner ' of dealing with the test identification.
We are unable to place any reliance on these proceedings.
This takes us to the question of motive.
We have already noticed that the altercation between the deceased Omwati and the appellant 's wife does not seem to have been taken seriously by either party.
The proceedings under section 107, Cr. P. C. to which a reference has been made were started by Ram Chandra against the appellant after the occurrence in question and, therefore, they are not relevant on the question of motive for the present offence of murder.
The appellant 's counsel questioned the admissibility of exhibit Ka 4, the letter said to have been written by the deceased to her father, on the ground that it did not fall within the purvi ew of section 32, Indian Evidence Act.
The objection appears prima facie on plain reading of the section to possess L1100 SUP CI/71 929 merit.
But even if this letter were to be held admissible we are not satisfied that the motive which this letter suggests is of strong and impelling nature so as to induce the murder of Omwati and her infant child.
The motive suggested by this letter, coupled with the testimony of P.W. 2 and P.W. 10, may at best give rise only to a suspicion against the appellant; but suspicion however strong cannot take the place of roof.
The appellant 's conduct in absconding was also relied upon.
Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind.
Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self Preservation.
The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case.
Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction.
It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the 'accused.
In the present case the appellant was with Ram Chandra till the F.I.R. was lodged.
If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice.
It is not inconsistent with his innocence.
One other circumstance which on the facts of this case also deserves notice is the non recovery of the weapon of offence and the fact that no stains of blood were noticed by any one on the appellant 's clothes even though he was with Ram Chandra right upto the loding of the F.I.R. and even accompanied him for that purpose.
The courts below seem to us to have failed to take into consideration all the relevant facts and circumstances of the case.
As proof of the appellant 's guilt depended solely on circumstantial evidence it was incumbent on the courts below to properly consider and scrutinise all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant 's guilt.
In our view, the cumulative effect of the circumstantial evidence in this case falls far short of the test required for sustaining conviction.
We are, therefore, constrained to allow this appeal, set aside the appellant 's conviction and acquit him.
V.P.S. Appeal allowed.
| Under the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1939, where returns have been accepted as correct nothing more need be done except to recover the tax due which has not been paid and no assessment order need be passed in view of the express language of section 7.
It is only when the returns have not been submitted or when returns submitted are found to be incorrect and incomplete that the tax officer has to make an enquiry and determine the sum payable by the operator by way of tax.
Simmilarly if there has been escapement of tax, proceedings have to be taken under section 8 and an order has to be made after an enquiry.
The position would be the same if penalty is sought to be levied under section 9.
[986F H; 987A]
|
ivil Appeal No. 1045 of 1972.
From the Judgment and Order dated 7.2.1972 of the Madras High Court in Appeal No. 549 of 1963.
K. Ramkumar for the Appellants.
K. Raj Choudhary, B.R. Agarwal and Ms. Sushma Manchanda for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave against a judgment of a Division Bench of the Madras High Court deliv ered on February 7, 1972.
Respondents Nos.
1 to 5 along with one other person filed a representative suit on behalf of themselves and other members of the Thousand Yadhava Community residing in Ramayanachavadi Street and the other adjoining lanes in North Masi Street, Madurai Town and adjoining villages against original appellant No. 1 herein, for an order 3 directing him to render true and proper accounts of the management of the properties of the Thousand Yadhava Commu nity including the Sri Ramasami Sri Navaneetha Krishnasami Devasthanam Temples and their properties and to pay to the plaintiffs the amount ascertained as payable on such rendi tion of accounts with interest and other reliefs.
Original appellant No. 1 herein was the trustee of the said temples.
He died during the pendency of the appeal before us and his two sons have been joined as appellants Nos. 1(i) to 1(ii) in this appeal.
We propose to refer to the parties by their descriptions in the suit for the sake of convenience.
Very briefly stated, according to the plaintiffs, the said temples were private religious trusts and the defendant had committed several acts of mismanagement in respect of the properties of the said trusts.
The defendant denied these allegations.
He, inter alia, contended that the suit as framed was not maintainable in law, in view of the provi sions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as "the said Act.").
The Trial Court dismissed the suit on the ground that it was barred by the provisions of the said Act.
The Trial Court held that the said temples were not private temples belonging to the aforesaid community, namely, Thou sand Yadhava Community.
The Trial Court took the view that the Thousand Yadhava Community must be regarded as a section of the Hindu Community and in that case both the temples would be covered by the provisions of section 6(20) of the said Act.
Sub section (20) of section 6 defines the meaning of the word 'temple ' for the purpose of the said Act and, very briefly stated, lays down that it is a place used as a place of public religious worship and dedicated to or for the benefit of the Hindu Community or any section thereof, as a place of public religious worship.
The Trial Court took the view that, although this question could be decided primarily only by the Endowment Board and Civil Court has no jurisdiction to go into it, it could go into that question incidentally as was done by the Trial Court.
As a conse quence of this conclusion, the Trial Court held that the suit was barred by the provisions of the said Act and was not maintainable at law.
The plaintiffs preferred an appeal against this decision to the Madras High Court.
A Division Bench of the Madras High Court after examining the provi sions of the said Act held that the Trial Court was not right in dismissing the suit in toto even with regard to the relief of accounting.
The High Court held that defendant No. 1 (original appellant before us) admitted that he was elect ed in 1949 as the trustee of the said temples at a meeting of the members of the community.
The 4 said Act does not contain any provision for rendition of accounts.
A party seeking relief of accounting cannot ap proach the Deputy Commissioner or any other authority under the said Act and hence, the Civil Court is not barred either expressly or by necessary implication from entertaining a suit in so far as it was for the relief of accounting.
Following upon this reasoning, the court allowed the appeal and passed a preliminary decree against defendant No. 1 for rendition of accounts while dismissing the suit in all other respects.
The High Court did not decide as to whether the said temples were private temples or could be regarded as public religious endowments falling within the definition of the term 'temple ' as defined in sub section (20) of section 6 of the said Act.
Defendant No. 1 along with some others filed a petition for Special Leave before this Court and by an order dated April 24, 1972.
Special Leave was granted by this Court but was confined to the question whether it was within the power of the Civil Court to direct accounts to be taken without deciding the question whether the temple is a public temple or a private temple.
At the hearing of the appeal before us, Mr. Ram Kumar, learned Counsel for the appellants conceded that if the said temples were private temples as contended by the plaintiffs in the said suit, the defendant as the trustee was liable to render accounts of his management of the said trust to them as beneficiaries.
It was, however, submitted by him that in case the said temples were not private temples but were temples as defined in sub section (20) of section 6 of the said Act to which we have already referred earlier, the suit for rendition of accounts was not maintainable in view of the provisions of the said Act and hence, it was not open to the High Court to have passed a decree for rendition of accounts without deciding whether the said temples were public temples or private temples.
He drew our attention to sub section (20) of section 6 of the said Act which defines the term 'temple ' for the purpose of the said Act.
We have already referred to that definition of the said term 'tem ple ' earlier.
Suffice it to state here that under that definition only public temples of the nature stated earlier could be regarded as temples.
Sub section (17) of section 6 defines the term 'religious endowment ' or 'endowment ' and it is sufficient for the purpose of this appeal to note that it means property belonging to or given or endowed for the support of maths or temples for the purposes set out there in.
Section 108 of the said Act runs as follows.
5 "108.
Bar of suits in respect of administra tion or management of religious institutions etc.
No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be insti tuted in any.
Court of law, except under, and in confirmity with, the provisions of this Act.
" Section 63 of the said Act deals with the power of the Deputy Commissioner to hold inquiries into and decide the disputes and matters set out therein.
It inter alia confers on him the power to hold inquiries in connection with the property and funds of the temples within the meaning of the said Act.
Against the order of the Deputy Commissioner, an appeal is provided under section 69 to the Commissioner and section 70 lays down that a person aggrieved by an order passed by the Commissioner under the provisions set out in clauses (i) and (ii) of sub section (1) thereof can file a suit in a Civil Court.
Sub section (2) of section 70 pro vides that an appeal shall lie to the High Court against the decree of the Civil Court under sub section (1) of section 70.
Chapter VIII of the said Act deals with the topic of Budgets, Accounts and Audit.
Section 87 of the said Act provides that the trustee of every religious institution shall keep regular accounts of all receipts and disburse ments and provides that these accounts have to be audited by the auditors appointed in a prescribed manner.
After the audit is completed, the auditor is required under section 88 to send a report to the Commissioner or the Deputy Commis sioner or the Assistant Commissioner as provided therein.
Section 90 deals with the rectification of defects disclosed in the audit and order of surcharge against trustee etc.
It is.interesting to note that sub section (6) of section 90 provides that an order of surcharge under this section against a trustee shall not bar a suit for accounts against him except in respect of the matters finally dealt with by such order.
In the appeal before us a perusal of the plaint shows that the suit was filed not on behalf of any particular beneficiary or group of beneficiaries but by a certain persons claiming to belong to the beneficiary community, namely, the Thousand Yadhava Community, and the suit was a representative suit instituted on behalf of themselves and other members of the community.
There is no doubt that in respect of a public trust, beneficiaries as a class can file a suit against the trustee for rendition of accounts, sub ject to the bar imposed by.
6 section 92 of the Code of Civil Procedure, 1908.
It was with a view to prevent ' reckless and harassing suits being brought against the trustees of public trusts that section 92 was enacted requiring that two or more persons having interest in the suit could institute such a suit only with the consent in writing of the Advocate General.
However, we find that in view of the provisions of section 5 of the said Act, sections 92 and 93 of tile Code of Civil Procedure have ceased to apply to the Hindu Religious and Charitable Endow ments in the concerned State.
Hence the ' bar, if any, to .the institution of a suit like this has to be found only in the provisions of the Act.
We have already set out earli er the provisions of section 108 of the said Act which is analogous to section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as "the said Act of 1951") which was repealed by the said Act.
Many of the powers of the Deputy Commissioner under the said Act to which we have already referred earlier are similar to the powers conferred by section 57 of the said Act of 1951.
Sections 63 and 64 of the said Act which deal with the powers of the Deputy Commissioner are in pari materia with the provisions of sections 57 and 58 of the said Act of 1951.
Section 90(6) of the said Act provides that an order of surcharge under this section made against the trustee shall not bar a suit for accounts against him and we find a similar provision in sub section (7) of section 74 of the said Act of 1951.
The schemes of the two Acts are largely similar.
In Sri Vedagiri Laxmi Narasimha Swami Temple vs Induru Pattabhirami Reddy; , a question arose before this Court as to whether a suit by the present trus tee against the previous trustee of a temple was barred by reason of the provisions of the said Act of 1951.
It was argued in that case that the Act in question provides a complete machinery for deciding disputes in regard to ac counts and, therefore, no suit for accounting against an ex trustee can be filed at all in a Civil Court.
After analysing the scheme of the said Act of 1951, and the provi sions of the relevant sections of that Act, which we have referred to earlier that argument was rejected by a Division Bench of this Court.
It was pointed out by Subba Rao, C.J., who delivered the judgment of this Court that the scope of the auditor 's investigation is limited.
It is only an effec tive substitute for the trustee himself furnishing an audit ed account.
It was held that Chapter VII of the said Act of 1951 only provides for a strict supervision of the financial side of the administration.
Chapter VII does not provide for determining a dispute in respect of rendition of account and does not bar a suit for that relief.
Section 74(7) of the said Act of 1951 was not a bar to the maintainability of such a suit.
The same reasoning applies to the case before us.
In our opinion, Chapter VIII of the said Act has no bearing on the ques 7 tion of the liability of a trustee to render accounts to the beneficiaries as a group or class and it does not provide for determining or deciding a dispute in respect of such rendition of accounts and hence, section 108 of the said Act does not bar a suit like the one filed by respondent No. 1 before us.
We are of the view that the High Court did not commit any error in passing a decree for rendition of ac counts without deciding the question whether a temple was a public or private trust.
In the result, the appeal fails and is dismissed with costs fixed at Rs.2,000 to be divided between the respond ents equally.
Y. Lal Appeal dis missed.
| The appellant was a manufacturer of agarbatis, dhoop sticks, dhoop coil and dhoop powder failing under Tariff Item No. 68 of the Central Excise Tariff.
It claimed exemp tion from duty of excise on the ground that these items being handicrafts were fully exempt from such payment under notification No. 55/75.
The appellant 's further case was that under Notification No. 111/78 all goods which were exempt from the whole of duty of excise leviable thereon unconditionally were exempted from the operation of Rule 174 of the Central Excise Rules, which required a manufacturer to take out a licence.
The Collector rejected the claim of the appellant and held that these items were not handicrafts.
It was contended before the Tribunal that dhoop sticks, coil and power were agarbaties and agarbaties were accepted as handicrafts by various authorities including the Central Government; mere use of power in the manufacture of these items did not bar them from being called handicrafts; and, in any event, there was no warrant in invoking longer time limit for five years for raising the demand.
The Tribunal rejected the contentions of the appellant.
It was found by the Tribunal that the main part of the manufacture of agarbaties, etc. was done with the aid of power; only a very small part of the required work was done by hand; and that it was difficult to accept that these were handicrafts merely because some authorities had chosen to treat agarbaties as handicrafts.
The Tribunal held that the Revenue was entitled to levy tax for a period of five years prior to the issue of show cause notice and not six months pursuant to rule 9(2) of the Central Excise Rules.
874 Before this court, it was contended on behalf of the appellant that in order to sustain the order of the Tribunal beyond a period of six months and upto a period of 5 years under section 11 A it had to be established that the duty of excise had not been levied or paid by reason of either fraud or collusion or wilful mis statement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment, as provided in the proviso to sub section (1) of section 11 A.
In this context, it was urged that there was scope for believing that agar baties were entitled to exemption and if that was so, then there was enough scope for believing that there was not need of taking out a licence under rule 174 of the Central Excise Rules, 1944.
On the other hand, the Revenue contended that the failure to take out the licence and thereafter to take the goods out of the factory gate without payment of duty was itself sufficient to infer that the appellant came within the mischief of section 11 A of the Act.
While partly allowing the appeal, and remanding the case to the Tribunal to modify the demand, this Court, HELD: (1) In view of the evidence examined by the Tribu nal and in the light of the well settled principle and the background of the definition of handicrafts, the Tribunal was right in holding that agarbaties were not handicrafts.
[881D E] M.S. Company Private Limited vs Union of India, SC, referred to.
(2) Failure to pay duty or take out a licence is not necessarily due to fraud or collusion or wilful mis state ment or suppression of facts or contravention of any provi sion of the Act.
Suppression of facts is not failure to disclose the legal consequences of a certain provision.
[884B] Collector of Central Excise, Hyderabad vs M/s. Chemphar Drugs and Liniments, Hyderabad, [1989] 2 SCC 127, referred to.
(3) Mere failure or negligence on the part of the pro ducer or manufacturer either not to take out a licence in case where there was scope for doubt whether goods were dutiable or not, would not attract section 11 A of the Act.
[884D] (4) In the facts and circumstances of the case, there were materials to suggest that there was scope for confusion and the 875 appellants believing that the goods came within the purview of the concept of handicrafts and as such were exempt.
If there was scope for such a belief or opinion, then failure either to take out a licence or to pay duty on that belief, when there was no contrary evidence that the producer or the manufacturer knew that these were excisable or required to be licenced, would not attract the penal provisions of section 11 A of the Act.
If the facts were otherwise, then the position would be different.
[884E F]
|
Appeal No. 1573(N) of 1972.
Appeal by special leave from the judgment and order dated the 3rd February, 1971 of the Gujarat High Court at Ahmedabad in Second Appeal No.639 of 1968.
V. section Desai, P. C. Bhartari and A. G. Meneses, for the appellants.
D. V. Patel, P. H. Parekh and Sunanda Bhandare, for respondent No. 1.
section K. Dholakia and M. N. Shroff, for respondent No. 2.
D. N. Mishra, for respondents Nos.
3a to 3d.
117 The Judgment of the Court was delivered by KHANNA, J.
Whether the decree for the possession of the land in dispute awarded in favour of Laxman Purshottam Pimputkar respondent No. 1 (hereinafter described as the respondent has become inexecutable after the coming into force of the Gujarat Patel Watans Abolition Act, 1961 (Gujarat Act 48 of 1961) (hereinafter referred to as the Act) is the short question which arises for determination in this appeal brought by special leave against the judgment of the Gujarat High Court.
The appellants and the respondent belong to one family.
The respondent represents the seniormost branch of the family.
The family was granted Patilki Watan in a number of villages, including Solsumbha, in district Thana.
The watan land situated in Solsumbha is the subject matter of the present dispute.
Under the Bombay Hereditary Offices Act, 1874 the person who actually performs the duty of a hereditary office for the time being is called an officiator.
Purshottam, father of the respondent, was the officiator till 1921 when, because of a disqualification incurred by him, a deputy was appointed in place of Purshottam.
After the death of Purshottam in 1940, the respondent became the officiator the branch of the appellants claimed to be ill possession of the watan land in dispute and some other lands under a partition effected in 1914.
In 1944 the respondent moved the government for resumption of the, watan land in dispute which was in possession of the branch of the appellants.
Prayer was also made by the respondent that he might be delivered possession of the land.
The government after some enquiry resumed that land by order dated October 9, 1946 and directed that possession of the same be restored to the respondent.
The appellants thereafter moved the government for reconsideration of that order.
The government on May 2, 1947 modified its previous order by directing that the.
appellants could continue to retain the possession of the land in dispute subject to payment of rent as might be fixed by the government from time to time.
The respondent thereupon instituted suit for a declaration that the order of the government dated May 2,1947 and an ancillary order dated March 1, 1949 were null, void and inoperative.
Prayer was also made that the appellants should remove all obstructions and hindrances from the land in dispute and should hand over the possession of the same to the respondent.
It was further prayed that the appellants should render account of the income, of the land to the respondent.
The suit was resisted by the appellants on the ground that the impugned orders were administrative orders and no suit could lie for setting them aside.
The suits were also stated to be barred by limitation.
The trial court decreed the suit in favour of the respondent.
On appeal the District Judge set aside the decreed in favour of the respondent.
The decision of the District Judge was affirmed on second appeal by the High Court.
The respondent then came up in appeal to this Court by special leave.
This Court as per its judgment dated December 13, 1962, reported in, (1964) 1 S.C.R. 200, accepted the appeal of the respondent and set aside the judgment of the High Court and the District Judge and restored that of the trial court whereby decree for possession of the land in dispute had been awarded in favour of the respondent against the appellants.
118 In the meanwhile in 1960 the State of Bombay was bifurcated and the land in dispute which was earlier part of Bombay State became part of the State of Gujarat.
On April 1, 1963 the Act came into force.
On July 19, 1966 the respondent filed an application to execute the, decree for possession of the land which had been awarded in his favour.
Objection was then taken by the appellants that the decree awarded in favour of the respondent had become inexecutable because of the coming into force of the Act.
This objection found favour with the executing court which consequently dismissed the execution application.
Appeal filed by the respondent against the order of the executing court was dismissed by the District Judge Bulsar.
The respondent thereafter filed second appeal before the Gujarat High Court.
The High Court came to the conclusion that the respondent was entitled to execute the decree for possession of the land obtained by him against the appellants.
Appeal of the respondent was accordingly allowed.
The appellants have thereafter come up in appeal to this Court by special leave.
The question which arises for determination, as stated earlier, is whether the decree for possession of the land in dispute which was awarded in favour of the respondent has become inexecutable because of the coming into force of the Act.
It would, therefore, been to refer to the relevant provisions of the Act.
Section 2 contains the definitions.
According to section 2(7), "hereditary patelship" means every village office of a revenue or police patel held hereditarily under the existing watan law for the performance of duties connected with the administration or collection of the public revenue of a village or with the village police, or with the settlement of boundaries or other matters of civil administration of a village and includes such office even where the services originally appertaining to it have ceased to be demanded.
Section 2(11) defines "patel watan" to mean a watan held under the existing watan law for the performance of duties appertaining to the hereditary patelship whether any commutation settlement in respect of such patel watan has or has not been effected. "Unauthorised holder" has been defined in section 2(14) to mean a person in session of a watan land without any right or under a lease, mortgage sale, gift or any other kind of transfer thereof, which is null and void under the existing watan law.
"Watan", according to section 2(15), means watan property, if any, together with the hereditary office and the rights and privileges attached 'to it.
Section 2(16) defines "watandar" to mean a person having hereditary interest in a patel watan under the existing watan law and includes a matadar and 'a representative watandar.
Section 2(17) defines "watan land" to mean the land forming part of the watan property.
According to section 2(18).
"watan property" means the movable or immovable property held, acquired or assigned under the existing watan law for providing remuneration for the performance of the duty appertaining to a hereditary patelship and includes a right under the existing watan law to levy customary fees or perquisites in money or in kind, whether at fixed times or otherwise and also includes cash payments in addition to the original watan property made voluntarily by the State Government and subject periodically,to motion or withdrawal.
119 Section 3 gives, powers to the Collector, to decide various questions arising under the Act including the question whether any land is watan land and whether a person is, watandar or authorised holder or unauthorised holder.
Right is also given to a person aggrieved by the order of the Collector to file appeal to the State Government Section 4 has material bearing and reads as under : "4.
Notwithstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing watan law, with ,effect on and from the appointed day, (i) all patel watans shall be and are hereby abolished; (ii) all incidents (including the right to hold office and watan property, the right to levy customary fees or perquisites in money or in kind, and the liability to render service) appertaining to the said watans shall be, and are hereby extinguished; (iii) no office of patel shall be, hereditary; and (iv) subject to the provisions of sections 6, 7 and 10 all watan land shall be and is hereby resumed and shall be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land : Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of the existing watan law or of the rights of an alienee thereof or any person claiming under or through him." Section 5 deals with resumption of watan land which is not a grant of soil and is held subject to a total or partial exemption from payment of land revenue thereof.
We are, in the present case not concerned with such watan land.
According to section 6, watan land to which the provisions of section 5 do not apply shall, in cases not falling under section 7 or section 10 be regranted to the watandar of the watan to which it appertained on payment by or on behalf of the watandar to the State Government of the occupancy price equal to six times the amount of the full assessment of such land within the prescribed period and in the prescribed manner and the watandar shall be deemed to be occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder; and all the provisions of the Code and the said rules relating to unalienated land shall subject to the provisions of this Act, apply to the said land.
Section 7 deals with the regrant of watan land to authorised holders.
According to the section, any watan land other than land to which the provisions of section 5 apply held by an authorised holder shall be regranted to him on payment by him or on his behalf 120 to the State Government of the occupany price mentioned in section 6 and subject to the like conditions and consequences and all the provisions of section 6 shall apply mutatis mutandis in relation to the regrant of the, land under this section to the authorised holder as if were the watandar.
Section 10 provides that where any watan land is in possession of an unauthorised holder, he shall be summarily evicted therefrom by the Collector in accordance with the provisions of the Code : Provided that if the State Government is of opinion that in view of the investment made by such bolder in the development of the land or in the non agricultural use of the land or otherwise, his eviction will cause undue hardship to him, it may direct the Collector to regrant the land to such holder on payment of such amount and subject to such terms and conditions as the State Government may determine and the Collector shall regrant the land accordingly.
It is further provided in the section that watan land unless regranted under the section shall be disposed of in accordance with the provisions of the Bombay Land Revenue Code applicable to disposal of unoccupied unalienated land.
Section 22 contains the saving clause and reads as under "22.
Nothing contained in this Act shall affect (i) any obligation or liability already incurred under an incident of a patel watan before the appointed by, or (ii) any proceeding or remedy in respect of such obligation or liability, and any such proceeding may be continued or any such remedy may be enforced as if this Act had not been passed.
" Mr. Dasai on behalf of the appellants has contended before us that in view of the provisions contained in section 4 of the Act, the decree for the possession of the land in dispute awarded in favour of the respondent has become inexecutable.
it is submitted that as the decree was awarded in favour of the respondent in his capacity as a watandar and as patel watans have been abolished, the respondent cannot obtain the possession of the land to which he was entitled as a watandar ' This stand has been controverted by Mr. Patel on behalf of the respondent and he submits that there is nothing in the language of section 4 which renders the decree for the possession of the land in dispute inexecutable.
In any case, according to Mr. Patel, the right of the respondent to execute the decree and the liability of the appellants to hand over possession of the land to the respondent under the decree have been kept intact by section 22 of the Act.
The provisions of section 4 of the Act have been reproduced above and it is manifest therefrom that with effect from the appointed day, viz, April 1, 1963 all patel watans are abolished and all incidents appertaining to the said watans are extinguished.
It is further provided that as from the appointed day no office of patel shall be hereditary and that subject to the provisions of section 6, 7 and 1 0 all watan lands are resumed and would be subject to the, payment of land revenue.
The question with which we are concerned is whether the 121 right to execute the decree for the possession of watam land which has been obtained by the watandar against other persons comes to an end because of the abolition of patel watans and the extinguishment of all incidents appertaining to the said watans.
The answer to this question, in our opinion, should be in the negative.
There is nothing in the language of section 4 which renders Such decrees for possession to be inexecutable.
Had the legislature intended that the decrees for possession of the watan lands which had been obtained by the watandars against third persons should become inexecutable, the legislature would have indicated such an intention by incorporating some provision to that effect.
In the absence of any such provision, it is not permissible to read 'a prohibition in section 4 of the Act 'On the execution of a decree for possession of the watan land obtained in favour of the watandar.
The fact that patel watans have been abolished 'and incidents.
appertaining to the watans have been extinguished does not lead to the conclusion that the right of the erstwhile watandar to the possession of the watan lands also comes to an end.
Indeed, clause (iv) of section 4 of the Act expressly provides that the resumption of watan land consequent upon the abolition of patel watans and the extinguishment of incidents appertaining to the said watans would be subject to the provisions of sections 6, 7 and 10.
According to section 6, the watan land, subject to the conditions mentioned in that section, 'shall be regranted to the watandar of the watan and he shall be deemed to be occupant of the said land.
The watandar would be entitled to continue to be in possession of the watan lands, if he complies with the provisions of that section despite the abolition of patel watans and the extinguishment of incidents appertaining to the said watans.
The object of the Act as would appear from its preamble was to abolish patel watans because its hereditary character smacked of some kind of feudalism.
At the same time, the legislature made it clear that it was not intended to deprive the watandar of the possession of the land if he complied with the conditions laid down in section 6 of the Act.
It, therefore, cannot be said that there was a severance of all connections between the watandar and the watan land because of the abolition of patel watans and the extinguishment of incidents appertaining to such watans.
A residual right was still there in the erstwhile watandar and that included the right to retain possession of watan land if the conditions mentioned in section 6 were complied with.
Section 7 of the Act contains provisions for regrant of watan lands to authorised holders.
while section 10 provides for eviction of unauthorised, holders.
Provision is also made for regrant of the land by the State Government to unauthorised holders if the Government forms the opinion that his eviction would cause undue hardship to him.
It would follow from a combined reading of sections 4, 6 7 and 10 of the Act that a watandar on the abolition of patel watans and extinguishment of the incidents appertaining to the watans does not automatically lose his right to possession of the watan lands.
The same is.
true of an authorised holder.
Their right to retain possession of 122 watan land as long as they comply with the prescribed conditions is .statutorily recognised.
The position of a watandar and an authorised holder is in marked contrast to that of an unauthorised holder who can be summarily evicted from the watan lands by the Collector under section 10 of the Act.
So far as quondam watandars are concerned, they are entitled to be in possession of the watan lands not in their capacity as watandars but by virtue of the operation of section 6 of the Act.
Likewise, the authorised holders are entitled to be in possession by virtue of section 7 of the Act.
If the respondent is entitled to be in possession of the land in dispute under section 6 of the Act, the right to execute the decree for possession of the land can plainly be not denied to him on account of the provisions of the Act.
According to Mr. Desai, if the appellants are not dispossessed from the land in dispute in execution of the decree obtained by the respondent against them, the appellants can 'approach the State Government for regrant of the land in dispute to them because their eviction would cause undue hardship to them.
It is, in our opinion, not necessary for the purpose, of the present case to go into the question whether the appellants can claim regrant of the land under section 10 of the Act because this question does not materially affect the right of the respondent to execute the decree for possession of the land in dispute obtained by him against the appellants.
If the respondent is entitled to execute the decree for possession of the land obtained against the appellants, in that event the question whether the appellants, if allowed to remain in possession, could have applied for regrant of the land to them, is hardly of any relevance.
Reference has been made by Mr. Desai to the words "any decree or order of a court" in the opening clause of section 4 of the Act.
It is urged that those words indicate that the decree or order of a court can also be not executed with effect from the appointed day.
This ,contention, in our opinion, is not well founded.
What is contemplated by the opening clause of section 4 of the, Act is that not withstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing law with effect from the appointed day, the results mentioned in the various clauses of that section would follow.
The words "any decree or order of a court" are preceded by the words "anything conta ined in any settlement, grant, agreement, sanad".
It is a well established rule in construction of statutes that general terms following particular ones apply only to such perso ns or things as are ejusdem generis with those comprehended 'in the language of the Legislature,.
In other words, the general expression is to be read as comprehending only,things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a under sense was intended.(see p. 297 of Maxwell on the Interpretation of Statutes Twelfth Edition).
In our opinion, the opening clause of section 4 indicates that irrespective of any usage or custom and irrespective of any settlement, grant, agreement, sanad, or decree or ,order of a court or the, existing watan law, which might have defined ,and declared the incidents appertaining to patel watans.
the results contemplated by the various clauses of section 4 would follow and 123 nothing contained in the settlement, grant, agreement, sanad, or decree or order of the court or the existing watan law would prevent the operation of that section.
In view of what has been held above, it is, in our opinion, not necessary to deal with the alternative argument of Mr. Patel that the execution proceedings taken by the. respondent to recover possession of the land were also protected by section 22 of the Act.
Reference has been made by Mr. Desai to a Full Bench decision of Nagpur High Court in the case of Chhote Khan vs Mohammad Obedulla Khan(1).
It was held by the majority in that case that after the coming into force of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 the preemption decrees obtained by landlords are no longer executable because the persons seeking to enforce them have lost their proprietary interest.
The aforesaid case cannot be of any help to the, appellants because it has been conceded by Mr. Desai that there were no provisions in the above mentioned Madhya Pradesh Act corresponding to sections 6, 7 and 10 of the Act with which we are concerned.
It is also consequently not necessary to express any opinion about the correctness of the view taken by the majority in the above mentioned Full Bench decision.
There is, in our opinion, no merit in this appeal which is accordingly dismissed with costs.
V.P.S. Appeal dismissed.
(1) A.I.R. 1953,Nag.
| In the election from 168 Katoria Bihar Legislative Assembly constituency, the Respondent No. 1 was declared elected having secured 16649 votes as against 16074 polled by the appellant.
The votes rejected as invalid were 1219.
The appellant filed an election petition challenging the election of the returned candidate on the ground that several irregularities and illegalities were committed in the counting of votes.
The petition was resisted by the returned candidate.
The High Court framed issues, recorded the evidence produced by the parties and held that the allegations had not been substantiated.
It declined the request for a recount and dismissed the petition.
Hence this appeal by the petitioner.
It was contended for the appellant : (i) Four unauthorised persons were allowed to work as Counting Supervisors at tables 4, 5, 7 and 9 in breach of the rules and this had vitiated the counting, (ii) When the fact, that, 50 unsigned ballot papers relating to polling station No. 74 were in excess of those actually polled, was brought to the notice of the Assistant Returning Officer, he, in violation of Rule 93(i) of the Conduct of Election Rules and to cover up the irregularity, opened that packet and inspected those unused ballot papers; (iii) The detailed result sheet prepared tablewise in accordance with the instructions of the Election Commission has been deliberately suppressed to prevent detection of mistakes and manipulations made in the counting, and (iv) Despite protest, 600 votes were counted twice in favour of Respondent No. 1.
Rejecting the contentions and dismissing the appeal, HELD : The court would be justified in ordering a recount of the ballot papers, only where : (1) the election petition contains an adequate statements of all the material facts on which the allegations of irregularity or illegality in counting are founded.
(2)On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting and; (3) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
[23H; 24A B] (i) There is not even an oblique hint in the election petition that any unauthorised person was allowed to act as Counting Super visor or Counting Assistant.
It was made at the stage of final arguments in the application seeding a recount.
Questioning the Returning Officer and the Assistant Returning officer in this regard during cross examination, could hardly constitute an adequate notice to the Respondent of this new plea.
That apart, neither the petitioner nor his chief Counting Agent alleged anything of this kind.
All the four persons are Govt.
Officials.
The fact that their names do not appear in exhibit 6 does not exclude the probability of their having been appointed and kept in reserve by a separate order or orders to act as counting Supervisors in case of need.
That such appointments were made and a waiting list was prepared is disclosed in the evidence of the Returning Officer, and it receives further support from the Evidence of R.W. 18 22 and R.W. 19.
The circumstances of this case fully attract the maxim omnia praesumuntur rite esse acta, and it would be presumed that the aforesaid four persons were rightly and regularly appointed and admitted into the Counting Hall to act as Counting Supervisors, by the Returning Officer.
On this score no violation of Rule 53 or any other statutory provision has been established.
[24F H; 24A E] (ii) The act of the Returning Officer in opening the packet, and inspecting and counting the unused ballot papers found the rein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules.
The language of Rule 93 is clear enough to indicate that the custody of the District Election Officer or the Returning Officer spoken of in the Rule is a postelection custody.
Indeed, in the present case, an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38(1).
The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein.
[28F; C] (iii) The absence of a detailed result sheet showing tablewise figures of each round of counting does not make the verification of the figures collated in the final result sheet drawn up in Form 20, impossible or even difficult as such figures can always be checked with the aid of Check Memos which contain tablewise figures of each round.
[29G H] (iv) In the application for a recount submitted to the Returning Officer, the appellant alleged that 600 votes constituting one bundle, have been "recounted again".
But it was not alleged therein, even in an embryonic form, that 600 uncounted votes in bundles were detected lying underneath the table of the Assistant Returning Officer.
Such an allegation appeared for the first time in the election petition filed 33 days later.
The original allegation was untenable because such an excess was not reflected in the grand total of the result sheet.
The total was correct.
The result sheet falsified the subsequent contention also which had been put forward as an afterthought.
[30F H]
|
vil Appeal Nos. 837 and 838 of 1989.
From the Judgment and Order dated 12.9.1988 of the High Court of Punjab and Haryana in C.W.P. Nos. 6871 and 6485 of 1988 respectively.
Kapil Sibal, Rajiv Dhawan and Ms. Kamini Jaiswal for the Appellants.
P.P. Rao, R.K. Gupta, Janendra Lal, Ms. Purnima Bhat and E.C. Agarwala for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
Special leave is granted in both these mat ters.
Heard learned Counsel for the parties.
These two appeals preferred by the appellants, Deepak Sibal and Miss Ritu Khanna, are directed against the common judgment of the Punjab & Haryana High Court whereby the High Court dismissed the two writ petitions filed by the appel lants and also some other writ 696 petitions challenging the constitutional validity of the rule for admission in the evening classes of the Three Years LL.B. Degree Course conducted by the Department of Laws of the Punjab University.
The impugned rule that was published in the prospectus for the year 1988 89 relating to admission to 150 seats in the evening classes in the Three Year LL.B. Degree Course is extracted as follows: "Admission to evening classes is open only to regular employees of Government/Semi Govern ment institutions/ affiliated colleges/Statu tory Corporations and Government Companies.
A candidate applying for admission to the evening classes should attach No Objection/Permission letter from his present employer with his application for admission.
" It is not disputed that there are 150 seats in the morning classes and another 150 seats in the evening class es.
In both the morning and evening classes reservation has been made for scheduled castes, scheduled tribes, backward classes, physically handicapped persons, outstanding and defence personnel.
In the morning classes out of 150 seats, 64 seats are reserved for scheduled castes, scheduled tribes, backward classes etc.
and the remaining 86 seats are allotted to general students selected on merit basis.
Simi larly in the evening classes, the remaining 86 seats are also reserved for regular employees of Government/Semi Government institutions etc.
, as mentioned in the impugned rule for admission.
The appellant, Deepak Sibal, passed the Bachelor of Commerce Examination from the University of Punjab in June, 1981 securing 61.5 per cent marks in the aggregate.
On June 1, 1988, he was appointed to the post of Accountant in Agro Chem Punjab Ltd. with effect from June 2, 1988 on probation for a period of six months.
Agro Chem Punjab Ltd. is stated to be a joint venture with Punjab Agro Corporation Ltd., Chandigarh, an Undertaking of the Punjab Government.
On July, 18, 1988, the appellant, Deepak Sibal, applied for admission in the evening classes of the Punjab Universi ty for the Three Year LL.B. Degree Course with a 'No Objec tion Certificate ' from his employer dated July 18, 1988.
He was granted an interview sometime in the first week of August, 1988, but he was not selected.
On enquiry, he came to know that although his position was 29 in the merit list, he was declared ineligible because he was an employee of a 697 Public Limited Company and did not fall within the exclusive categories, as mentioned in the impugned rule, to which admission in the evening classes was restricted.
The other appellant, namely Miss Ritu Khanna, passed the Bachelor of Arts Examination from the Punjab University securing 4 18 marks out of 650 marks.
She was temporarily appointed to the post of Helper in the office of the Direc tor, Water Resources, Punjab.
She also applied for admission in the evening classes of the Three Year LL.B. Degree Course of the University with all requisite certificates on July 18, 1988.
She was granted an interview on July 30, 1988 and although her position in the merit list was 19, she was not selected for admission on the ground that she was only a temporary employee.
Both the appellants, being aggrieved by the refusal of the University to admit them in the evening classes of the Three Year LL.B. Degree Course, filed two separate writ petitions in the Punjab & Haryana High Court challenging, inter alia, the constitutional validity of the impugned rule.
Five other writ petitions were also filed by the candidates who were refused admission in the evening classes in view of the impugned rule.
At the hearing of the writ petitions before the High Court, it was contended on behalf of the petitioners including the appellants, that the im pugned rule was violative of Article 14 of the Constitution.
The High Court overruled the contention and, as stated already, dismissed the writ petitions.
Hence these two appeals by the two appellants.
It is now well settled that Article 14 forbids class legislation, but does not forbid reasonable classification.
Whether a classification is a permissible classification under Article 14 or not, two conditions must be satisfied, namely, (1) that the classification must be rounded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational nexus to the object sought to be achieved by the statute in question.
By the impugned rule, a classification has been made for the purpose of admission to the evening classes.
The ques tion is whether the classification is a reasonable classifi cation within the meaning of Article 14 of the Constitution.
In order to consider the question as to the reasonableness of the classification, it is necessary to take into account the objective for such classification.
It has been averred in the written statement of Dr. Balram Kumar Gupta, Chair man, Depart 698 ment of Laws, Punjab University, the respondent No. 2, filed in the High Court, that the object of starting evening classes was to provide education to bona fide employees who could not attend the morning classes on account of their employment.
The object, therefore, was to accommodate bona fide employees in the evening classes, as they were unable to attend the morning classes on account of their employ ment.
Admission to evening classes is not open to the em ployees in general including private sector employees, but it is restricted to regular employees of Government/Semi Government institutions etc.
, as mentioned in the impugned rule.
In other words, the employees of Government/Semi Government institutions etc. have been grouped together as a class to the exclusion of employees of private establish ments.
It appears that in or about the year 1986, admission to evening classes was open to those who were in bona fide employment including self employed persons.
In supersession of that rule, the impugned rule was flamed excluding private sector employees and self employed persons.
In the counter affidavit filed in this Court on behalf of the respondents by the Registrar of the Punjab University, an explanation has been given why the University flamed the impugned rule restricting the admission in the evening classes open to Government/SemiGovernment institutions etc.
The explanation, as given in the counteraffidavit, is extracted below: "It is submitted that since the morning class es are open to all, the merit is much higher, whereas since the admission to the evening classes is only for regular employees of Government/Semi Government etc.
the merit goes lower.
It is in this view of the matter that in the past also, the Department of Law found that various certificates by employees were found to be incorrect and obtained by appli cants only with a view to get admission to the evening classes and, thereafter, applied for transfer to the morning classes.
On account of the past experience it was felt that the admission to the Law Courses in the morning be kept open to all persons whether employed or unemployed but the admission to the evening classes be restricted to only those who will be genuine and regular employee.
Since the Government/Semi Government and similar other institutions as mentioned in the prospectus are actually involved in lot of litigation, it was felt that imparting legal education to the employees of such institutions would be in public 699 interest.
It is submitted that it is in view of this practice of issuing of certificates by private employers in the past that the Depart ment of Law was compelled to restrict the admission of students of evening classes as has been done.
Thus, the respondents have sought to justify the exclu sion of private employees restricting admission to evening classes only to the Government/Semi Government and similar other institutions principally on two grounds, namely, (1) production of bogus certificates of employment from private employers, and (2) imparting of legal education to the employees of the Government/Semi Government and other insti tutions, as mentioned in the impugned rule, in public inter est.
Besides the above two grounds, Mr. P.P. Rao, learned Counsel appearing on behalf of the respondent, has added two more grounds, namely, (1) a candidate should have an assured tenure of employment likely to continue for three years, and (2) as far as possible, there should be no possibility of wastage of a seat.
It is submitted that employees of only Government/Semi Government institutions etc.
have an assured tenure of employment and if the admission in the evening classes is restricted to such employees, there would be no possibility of any wastage of a seat and the University will not have to engage itself in finding out whether or not a certificate produced by an employee of a private establish ment is a bogus certificate and whether such employee has an assured tenure of employment likely to continue for three years.
In upholding the validity of the impugned rule, it has been observed by the High Court that the Government employees have protection of Article 311 of the Constitu tion, which non Government employees do not have and that employees of SemiGovernment institutions are also on the same footing.
It is apparent that in framing the impugned rule, the respondents have deviated from its objective for the start ing of evening classes.
The objective was to accommodate in the evening classes employees in general including private employees who were unable to attend morning classes because of their employment.
In this backdrop of facts, we are to consider the reasonableness of the classification as contem plated by the provision of Article 14 of the Constitution.
It is difficult to accept the contention that the Gov ernment employees or the employees of Semi Government and other institutions, as mentioned in the impugned rule, stand on a different footing from the employees of private con cerns, in so far as the question of admission to evening classes is concerned.
It is true that the service condi 700 tions of employees of Government/Semi Government institu tions etc, are different, and they may have greater security of service, but that hardly matters for the purpose of admission in the evening classes.
The test is whether the employees of private establishments are equally in a disad vantageous position like the employees of Government/Semi Government institutions etc.
in attending morning classes.
There can be no doubt and it is not disputed that both of them stand on an equal footing and there is no difference between these two classes of employees in that regard.
To exclude the employees of private establishments will not, therefore, satisfy the test of intelligible differentia that distinguishes the employees of Government/Semi Government institutions etc.
grouped together from the employees of private establishments.
It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification cannot be said to be a reasonable one.
It is, however, submitted on behalf of the respondents that the employees of private establishments have been left out as it is difficult for the University to verify whether or not a particular candidate is really a regular employee and whether he will have a tenure for at least three years during which he will be prosecuting his studies in the Three Year LL.B. Degree Course.
It is submitted that in making the classification, the surrounding circumstances may be taken into account.
In support ' of that contention, much reliance has been placed on the decision of this Court in Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar, ; In that case, it has been observed by Das, C.J. that while good faith and knowledge of the existing condi tions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
It follows from the observation that surrounding circumstances may be taken into consideration in support of the constitu tionality of a law which is otherwise hostile or discrimina tory in nature.
But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved.
In the instant case, the circumstances which have been relied on by the respondents, namely, the possibility of production by them of bogus 701 certificates and insecurity of their services are not, in our opinion, such circumstances as will justify the exclu sion of the employees of private establishments from the evening classes.
We are also unable to accept the contention of the respondents that such exclusion of the employees of private establishments is justified on the ground of administrative convenience.
The decision in Pannalal Binjraj vs Union of India, ; relied on by the respondents does not, in our opinion, lay down any such proposition of law.
In that case, the provision of section 5(7)A of the Income Tax Act 1982 was, inter alia, challenged as ultra vires Article 14 of the Constitution inasmuch as it was discriminatory.
Section 5(7A) confers power on the Commissioner of Income Tax and the Central Board of Revenue, inter alia, to trans fer any case from one Income Tax Officer to another.
It has been observed by this Court that in order to minimise the inconvenience of the assessee, the authority concerned may transfer the case of such assessee to the Income Tax Officer who is nearest to the area where it would be convenient for the assessee to attend and if, on account of administrative exigencies, this is not possible and the assessee requests that the examination of accounts or evidence to be taken should be in a place convenient to him, the Income Tax Officer comply with the request of the assessee by holding the hearing at the place requested.
It is manifestly clear from the observation that the power of transfer is not exercised for administrative convenience, but for the con venience of the assessee.
In the instant case, there is no question of any administrative inconvenience.
The respond ents have not placed any material before the High Court or in this Court as to in how many cases they had come across such bogus certificates produced by private employees during the time the admission to evening classes was open also to private employees.
It may be that there were one or two cases of production of bogus certificates, but that cannot be a ground for the exclusion of all private employees from the benefit of getting legal education in the evening class es.
In the circumstances, we are not at all impressed with the contention that in order to avoid production of bogus certificates of employment from the private employers and having regard to the fact that employees of Government/Semi Government institutions etc. have an assured tenure of employment likely to continue for three years, the private employees were excluded for the purpose of admission to the evening classes.
By the impugned rule, admission to evening classes is restricted to regular employees of Gov ernment/Semi Government 702 institutions etc.
There is no material to indicate that by the expression "regular employees" it is intended to include only those employees who will have an assured tenure of service for three years, that is to say, co extensive with the period of the Three Year LL.B. Degree Course.
The ex pression "regular employees", in our opinion, normally means bona fide employees.
Such bona fide employees may be perma nent or temporary.
All that the University can insist is that one should be a bona fide employee and if there be materials for show that a candidate for admission in the evening classes is a bona fide employee the University, in our opinion, cannot further insist on an assured tenure of service of such an employee for a period of three years.
Be that as it may, the reason for exclusion of private employ ees on the ground that there may not be an assured tenure of employment likely to continue for three years, not only does not stand scrutiny but also is unfair and unjust and cannot form the basis of such an exclusion.
In this connection, we may also examine another ground restricting the admission in the evening classes to the employees of Government/Semi Government and other institu tions, as mentioned in the impugned rule, namely, imparting of legal education to such employees.
According to the respondents, imparting of legal education to the employees of Government/Semi Government and other institutions, as mentioned in the impugned rule, would be in public interest.
Indeed, in the counter affidavit filed in this Court on behalf of the respondents by the Registrar of the Universi ty, that is also the objective for framing the impugned rule.
The counter affidavit is, however, silent as to why imparting of legal education to the employees of Government/Semi Government institutions etc.
would be in public interest.
It is not understandable why Government/SemiGovernment employees in general should be imparted legal education and what sort of public interest would be served by such legal education.
It may be that certain sections of Government employees require legal education but, surely, Government employees in general do not require legal education.
A similar rule, which was framed by the Government of Kerala reserving 100 per cent seats to Government and quasi Government employees irrespective of their category, came to be considered by the Kerala High Court in Jolly vs State of Kerala, AIR 1974 Kerala 178.
In that case, it has been observed by the Kerala 'High Court that there may be some posts in Government service, some even in public corpo rations which may require incumbents who may be able to perform their functions very efficiently with a legal back ground provided to 703 them, but this cannot be said of all employees whether of the State Government or Central Government or of the public corporations or Government owned companies.
In our opinion, there is much force in the observation of the Kerala High Court.
It cannot be laid down that only Government employees require legal education and not private employees.
Certain private sector employees may require legal education in the interest of the establishments of which they are employees.
It is difficult to understand the logic of the rule re stricting admission in the evening classes to employees of Government/Semi Government institutions etc.
on the plea that such employees require legal education in public inter est.
In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the Court has also to consider the objective for such classifi cation.
If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable.
In the instant case, the foregoing discussion reveals that the classification of the employees of Govern ment/Semi Government institutions etc.
by the impugned rule for the purpose of admission in the evening classes or Three Year LL.B. Degree Course to the exclusion of all other employees, is unreasonable and unjust, as it does not sub serve any fair and logical objective.
it is, however, sub mitted that classification in favour of Government and public sector is a reasonable and valid classification.
In support of that contention, the decision in Hindustan Paper Corpn.
Ltd. vs Government of Kerala, ; has been relied on by the learned Counsel for the respondents.
In that case, it has been observed that as far as Government undertakings and companies are concerned, it has to be held that they form a class by themselves, since any project that they may make would in the end result in the benefit to the members of the general public.
The Government and public sector employees cannot be equated with Government undertak ings and companies.
The classification of Government under takings and companies may, in certain circumstances, be a reasonably classification satisfying the two tests mentioned above, but it is difficult to hold that the employees of Government/Semi Government institutions etc., as mentioned in the impugned rule, would also constitute a valid classi fication for the purpose of admission to evening classes of Three Year LL.B. Degree Course.
The contention in this regard, in our opinion, is without any substance.
The next contention of the respondents is that the University, being an educational institution, is entitled to identify the sources for 704 admission to the evening classes and that has been done by the University by the impugned rule and that cannot be challenged as violative of Article 14 of the Constitution.
In support of this contention, much reliance has been placed on behalf of the respondents on a decision of this Court in Chitra Ghosh vs Union of India, ; relating to reservation of seats in a medical college.
In upholding such reservation of seats it has been observed by this Court as follows: "It is the Central Government which bears the financial burden of running the medical col lege.
It is for it to lay down the criteria for eligibility.
From the very nature of things it is not possible to throw the admis sion open to students from all over the coun try.
The Government cannot be denied right to decide from what sources the admission will be made.
" This observation in Chitra Ghosh 's case has also been relied on by the High Court.
It has been contended by the learned Counsel for the respondents that the question of reasonable classification has nothing to do with the identi fication of sources for admission by an educational institu tion.
We are unable to accept the contention.
It is true that an educational institution is entitled to identify sources from which admission will be made to such institu tion, but we do not find any difference between identifica tion of a source and a classification.
If any source is specified, such source must also satisfy the test of reason able classification and also that it has a rational nexus to the object sought to be achieved.
Indeed in Chitra Ghosh 's case, it has also been observed that if the sources are properly classified whether on territorial, geographical or other reasonable basis, it is not for the courts to inter fere with the manner and method of making the classifica tion.
It is very clear from this observation that the sources must be classified on reasonable basis, that is to say, it cannot be classified arbitrarily and unreasonably.
The principle laid down in Chitra Ghosh 's case has been reiterated by this Court in a later decision in D.N. Chan chala vs State of Mysore, [1971] Supp.
SCR 608.
It has been very clearly laid down by this Court that Government col leges are entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules.
Thus, it is now well established that a classification by the identification of a source must not be arbitrary, but should 705 be on a reasonable basis having a nexus with the object sought to be achieved by the rules for such admission.
It follows from the above discussion that the impugned rule, with which we are concerned, having made a classifica tion which cannot be justified on any reasonable basis, must be held to be discriminatory and violative of Article 14 of the Constitution.
It is, however, submitted by Mr. P.P. Rao that in case the Court holds against the constitutional validity of the impugned rule, the entire rule may not be quashed, but only such portion of it which is found to be discriminatory in nature and, as such, invalid.
It is con tended that if the impugned rule had not restricted the admission to evening classes to the employees of Government/Semi Government institutions etc.
but had provid ed for admission to regular employees including employees of private sectors, the classification would have been a rea sonable one and having a rational nexus to the object sought to be achieved by the rule, namely, to accommodate the regular employees in the evening classes, as they would be unable to attend the morning classes.
Accordingly, it is submitted that instead of striking down the whole of the impugned rule, a full stop may be put after the words "regular employees" in the impugned rule and the remaining part of the rule after the said words can be struck down as discriminatory and violative of Article 14 of the Constitu tion.
If that be done, the rule will be read as "Admission to evening classes is open only to regular employees".
Prima facie it appears that this part, which is sought to be retained, is not severable from the remaining part of the rule.
In R.M.D. Chamarbaugwalla vs Union of India, ; it has been laid down by this Court that if the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another then the invalidity of the portion must result in the invalidity in its entirety.
In the instant case, the invalid portion is inextricably mixed up with the valid portion of the rule and, accordingly, the entire rule requires to be struck down.
Our attention has, however, been drawn to a later decision of this Court in B. Prabhakar Rao vs State of Andhra Pradesh, [1985] Supp.
SCC 432.
In this case, a Bench of Three Judges of this Court struck out the word 'not ' from the provisions of clause 3(1) of Ordinance 24 of 1984 and section 4(1) of the Act 3 of 1984 so as to bring those provisions to conform to the requirements of Article 14 of the Constitution.
We do not think we should try to bring the impugned rule in conformity with the provision of Article 14 of the constitution by putting a full stop after the words "regular employees" and striking down the remaining part of the impugned rule on the basis of the same principle as in Prabhakar Rao 's case (supra).
For, it has 706 been stated by Mr. P.P. Rao, learned Counsel for the re spondents; that the respondents will frame a fresh rule for admission in the evening classes in conformity with and in the light of the decision of this Court in the instant case.
But, the next important question is even if the restric tion from the impugned rule is removed and the admission to evening classes is made open to regular or bona fide employ ees including Government and non Government employees, whether reservation of cent percent seats in the evening classes for the employees will be justified and reasonable.
It has been urged by Mr. Kapil Sibal, learned Counsel ap pearing on behalf of the appellants, that reservation of 100 per cent seats in an educational institution for a specified class of persons is not at all permissible.
The University, being an autonomous body, must be accessible, and such access must be based on the principle that those who are the most meritorious must be preferred to those who are less meritorious.
This principle is, however, subject to the provision of Article 15 of the Constitution of India which allows positive discrimination, despite the merit principle, on the basis that the equality clause will not be meaningful unless equal opportunity is given to such classes enumerated by Article 15 by giving them preferential treatment.
Apart from the provision of Article 15, reservation may be made on the basis of doctrine of source only with a view to giving equal opportunity to some disadvantaged classes for their education but, learned Counsel submits, whether the reserva tion is made under Article 15(4) of the Constitution or otherwise on the theory of identification of source, in any event, such reservation cannot be 100 per cent at the cost of merit.
In our opinion, the above contention is not without force.
In this connection, we may refer to a decision of this Court in M.R. Balaji vs State of Mysore, [1963] Supp.
1 SCR 439.
In that case, the State of Mysore passed an order reserving 68 per cent of seats in the engineering and medi cal colleges and other technical institutions for the educa tionally and socially backward classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent of seats for the merit pool.
In striking down such reservation, it was observed by this Court that it would be extremely unreasona ble to assume that in enacting Article 15(4), Parliament intended to provide that where the advancement of the back ward classes or the Scheduled Castes and Scheduled Tribes was concerned, the fundamental rights of the citizens con stituting the rest of the society were to be completely and absolutely ignored.
Speaking generally and in a broad way, it was observed by this Court 707 that a special provision should be less than 50 per cent and the actual percentage must depend upon the relevant prevail ing circumstances in each case.
Thus, the provision of Article 15(4) does not contemplate to reserve all the seats or the majority of the seats in an educational institution at the cost of the rest of the society.
The same principle should also apply with equal force in the case of cent percent reservation of seats in educational institutions for a certain class of persons to the exclusion of meritorious candidates.
In Pradeep Jain vs Union of India, ; , the question of reservation of seats in medical colleges for MBBS and 'postgraduate medical courses on the basis of domicile or residential qualification and institutional preference, came to be considered by this Court.
Bhagwati, J. (as he then was) speaking for the Court observed that the effort must always be to select the best and most meritori ous students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and expressed an opinion that such reservation should, in no event, exceed the outer limit of 70 per cent which again needs to be reduced.
In Pradeep Jain 's case (supra), no reason appears to have been given for the observation relating to the reserva tion of 70 per cent of seats.
In a later decision of this Court in Nidamarti Maheshkumar vs State of Maharashtra, ; a more or less similar question regarding regionwise reservation of seats in medical colleges for admission to MBBS Course also came to be considered, and this time Bhagwati, C.J., speaking for the Court, gave the reason for reservation of 70 per cent of seats.
It was observed by the learned Chief Justice as follows: "In the first place it would cause a consider able amount of hardship and inconvenience if students residing in the region of a particu lar university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical col leges in the entire State were to be based on merit without any reservation or preference regionwise.
It must be remembered that there would be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they 708 would be effectively deprived of a real oppor tunity for pursuing the medical course even though on paper they would have got admission in the medical college.
The opportunity for medical education provided to them would be illusory and not real because they would not be able to avail of it.
Moreover some diffi culty would also arise in case of girls be cause if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical education in a medical college situat ed in another region where hostel facilities may not be available and even if hostel facil ities are available, the parents may hesitate to send them to the hostels.
We are therefore of the view that reservation or preference in respect of a certain percentage of seats may legitimately be made in favour of those who have studied in schools or colleges within the region of a particular university, in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality.
The only question is as to what should be the extent of such reservation or preference.
But on this question we derive considerable light from the decision in Pra deep Jain case [1984] 3 SCC 654 where we held that reservation based on residence require ment or institutional preference should not exceed the other limit of 70% of the total number of open seats after taking into account other kinds of reservations validly made and that the remaining 30% of the open seats at the least should be made available for admis sion to students on all India basis irrespec tive of the State or the university from which they come.
We would adopt the same principle in case of regionwise reservation or prefer ence and hold that not more than 70% of the total number of open seats in the medical college or colleges situate within the area of jurisdiction of a particular university, after taking into account other kinds of reserva tions validly made, shall be reserved for students who have studied in schools or col leges situate within the region and at least 30% of the open seats shall be available for admission to students who have studied in schools or colleges in other regions within the State.
" In Pradeep Jain 's case (supra), although it was stated that the outer limit of such reservation should not exceed 70 per cent of the 709 total number of open seats after taking into account other kinds of reservations validly made, yet the Court expressed the view that this outer limit 70 per cent needs to be reduced.
In the instant case, the respondents have reserved 64 seats out of 150 seats for Scheduled Castes, Scheduled Tribes, backward classes, etc.
In our opinion, out of the remaining 86 seats, reservation of seats for regular or bona fide employees for admission to evening classes shall, in no event, exceed the limit of 50 per cent.
The admission to the remaining 43 seats will be open to general candidates on merit basis.
Thus, while the respondents will be at liberty to reserve seats for regular or bona fide employees for admission to evening classes, such reservation shall not exceed 50 per cent after deducting the number of seats reserved for Scheduled Castes, Scheduled Tribes, backward classes, etc.
The only question which remains to be considered is whether the appellants are entitled to any relief.
It has been already noticed that the appellant, Deppak Sibal, was refused admission on the ground that he was an employee of a Public Limited Company which did not fall within the exclu sive categories, as mentioned in the impugned rule, to which admission to the evening classes was restricted.
The appel lant was appointed on probation for a period of six months in Agro Chem Punjab Ltd. with effect from June 2, 1988.
In proof of his appointment, the appellant produced before the respondents a certificate of employment dated June 1, 1988 issued by the Director of Agro Chem Punjab Ltd. According to the respondents, the certificate of employment produced by the appellant is not a genuine one inasmuch as the appellant was admitted to the first semester in the LL.B. Course of the Himachal Pradesh University at Simla on July 12, 1988.
We fail to understand how it can be said that the certifi cate of employment of the appellant in Agro Chem Punjab Ltd. was not a genuine certificate, simply because the appellant was admitted in the first semester of the LL.B. Course of the Himachal Pradesh University on July 12, 1983.
It is common knowledge that a candidate very often seeks admission in more than one college or university.
The appellant also made an application for admission to the LL.B. Course in Himachal Pradesh University and he was admitted.
It may be that after the respondents refused to admit the appellant in the evening classes, the appellant had to join LL.B. Course of the Himachal Pradesh University after giving up his service in Agro Chem Punjab Ltd. But, when the appellant made the application for admission in the evening classes of the Law Department of the Punjab University, he was in employment of Agro Chem Punjab Ltd. We do not find any reason to doubt the genuineness of the certificate of em ployment in Agro Chem Punjab Ltd. It is 710 the case of the appellant that to prosecute his studies in LL.B. Course in Himachal Pradesh University will put him to great hardship and inconvenience and it will be convenient for him to prosecute his studies in the University of Pun jab.
Similarly the other appellant, Miss Ritu Khanna, was refused admission by the respondents on the ground that her appointment was purely temporary, although her position was 19 in the merit list.
It has been already found that the impugned rule is discriminatory and is violative of Article 14 of the Consti tution and, as such, invalid.
The refusal by the respondents to admit the appellants in the evening classes of the Three Year LL.B. Degree Course was illegal.
The appellants are, therefore, entitled to be admitted in the evening classes.
It is, however, submitted on behalf of the respond ents that all the seats have been filled up and, according ly, the appellants cannot be admitted.
As injustice was done to the appellants, it will be no answer to say that all the seats are filled up.
For the reasons aforesaid, the judgment of the High Court is set aside and the impugned rule for admission in the evening classes is struck down as discriminatory and violative of Article 14 of the Constitution and accordingly, invalid.
We, however, make it clear that the striking down of the im pugned rule shall not, in any manner whatsoever, disturb the admissions already made for the session 1988 89.
The re spondents are directed to admit both the appellants in the second semester which has commenced from January, 1989 and shall allow them to complete the Three Year LL.B. Degree Course, if not otherwise ineligible on, the ground of unsat isfactory academic performance.
As was directed by this Court in Ajay Hasia vs Khalid Mujib Sehravardi, ; , the seats allocated to the appellants will be in addi tion to the normal intake of students in the college.
Both the appeals are allowed.
There will, however, be no order as to costs.
N.P.V Appeal allowed.
| The prospectus for the year 1988/89, for admission in the evening classes of the Three Year LL.B. Degree Course conducted by the Department of Laws of the Punjab Universi ty, prescribed that admission to evening classes was open only to regular employees of Government/ Semi Government institutions/affiliated Colleges/Statutory Corporations and Government Companies and that a candidate should attach No Objection/Permission letter from his employer with his application for admission.
Out of the 150 seats available in the evening classes, 64 were reserved for scheduled castes, scheduled tribes, backward classes, physically handicapped persons, outstanding sportsmen and defence personnel and the remaining 86 were reserved for regular employees of Govern ment/Semi Government institutions etc.
, as mentioned in the aforesaid rule for admission.
690 The two appellants, one employed in a Limited Company, a joint venture with an Undertaking of the State Government and the other working as a temporary employee in a State Government office, applied for admission in the evening classes with 'No Objection Certificates ' from their employ ees.
Both were interviewed but were not.
selected, although their positions in the merit list were 29 and 19 respective ly, on the ground that wile one of the appellants was an employee of a Public Limited Company and did not fall within the exclusive categories as mentioned in the impugned rule, the other was only a temporary employee.
Both the appellants filed writ petitions in the High Court, challenging the validity of the impugned rule.
Peti tions were also filed by five other refused candidates.
It was contended that the impugned rule was violative of article 14 of the Constitution.
The High Court dismissed the writ petitions.
While upholding the validity of the impugned rule, the High Court held that Government employees had protection of article 311 of the Constitution which non Govern ment employees did not have and that the employees of the Semi Government institutions were also on the same footing.
Hence the two appellants filed appeals in this Court.
In the counter affidavit filed in this Court the re spondents sought to justify the exclusion of private employ ees, restricting admission to evening classes only to the Government employees and similar other institutions on the grounds of production of bogus certificates of employment from private employers and imparting of legal education to the employees of the Government/Semi Government and other institutions as in public interest.
It was also contended that a candidate should have an assured tenure of employment likely to continue for three years and that, as far as possible, there should be no possibility of wastage of a seat.
Allowing the appeals, HELD: 1.1 Article 14 forbids legislation, but does not forbid reasonable classification.
Whether a classification is a permissible classification under article 14 or not, two conditions must be satisfied, namely, (1) that the classifi cation must be rounded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differ entia must have a rational nexus to the object sought to be achieved by the statute in question.
[697F] 691 1.2 In considering the reasonableness of classification from the point of view of article 14 of the Constitution, the Court has to consider the objective for such classification.
If the objective be illogical, unfair and unjust, necessari ly the classification will have to be held as unreasonable.
[703C D] 1.3 No doubt, a classification need not be made with mathematical precision but, if there be little or no differ ence between the persons or things which have been grouped together and those left out of the group, then the classifi cation cannot be said to be a reasonable one.
[700C] 1.4 Surrounding circumstances may be taken into consid eration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature.
But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved.
[700G H] Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar, ; , relied on.
1.5 A classification by the identification of sources most not be arbitrary but should be on a reasonable basis having a nexus with the object sought to be achieved.
[704H;705A4] Chitra Ghosh vs Union of India, ; and D.N. Chanchala vs State of Mysore, [1971] Supp.
SCR 608 relied on.
1.6 In the instant case, the objective of starting the evening classes was to accommodate in the evening classes employees in general including private employees who were unable to attend morning classes because of their employ ment.
However, in framing the impugned rule, the respondents have deviated from its objective for starting the evening classes.
[699F G] The classification of the employees of Government/Semi Government institutions etc.
by the impugned rule for the purpose of admission in the evening classes of Three Year LL.B. Degree Course to the exclusion of all other employees, is unreasonable and unjust, as it does not subserve any fair and logical objective.
[703D] The Government and public sector employees cannot be equated with Government undertaking and companies.
The classification of 692 Government undertakings and companies may, in certain cir cumstances, be a reasonable classification satisfying the tests laid down but the employees of Government/Semi Govern ment institutions etc., as mentioned in the impugned rule, cannot be held to constitute a valid classification for the purpose of admission to evening classes of Three years LL.B. Degree Course.
[703F G] Hindustan Paper Corpn.
Ltd. vs Government of Kerala, ; , distinguished.
1.7 The Government employees or the employees of Semi Government and other institutions cannot stand on a differ ent footing from the employees of private concerns, insofar as the question of admission to evening classes is con cerned.
[699H] Though the service conditions of employees of Govern ment/SemiGovernment institutions etc.
are different, and they may have greater security of service, that hardly matters for the purpose of admission in the evening classes.
The test is whether both the employees of private establish ments and the employees of Government/Semi Government insti tutions etc.
are equally in a disadvantageous position in attending morning classes.
There can be no doubt that both of them stand on an equal footing and there is no difference between these two classes of employees in that regard.
To exclude the employees of private establishments will not, therefore, satisfy the test of intelligible differentia that distinguishes the employees of Government/Semi Government institutions etc., grouped together from the employees of private establishments.
[700A C] 1.8 Though an educational institution is entitled to identify sources from which admission will be made in such institution, there is no difference between identification of the sources and a classification.
If any source is speci fied, such source must also satisfy the test of reasonable classification and also that it has a rational nexus with the object sought to be achieved.
The sources must be clas sified on reasonable basis, that is to say, it cannot be classified arbitrarily and unreasonably.
The impugned rule does not satisfy the test laid down in this regard.
[704D, F] Chitra Ghosh vs Union of India, ; and D.N. Chanchala vs State of Mysore, [1971] Supp.
SCR 608, relied on.
1.9 The circumstances relied on by the respondents, namely, the 693 possibility of production by the candidates of bogus certif icates and insecurity of their services are not such circum stances as will justify the exclusion of the employees of private establishments from the evening classes.
[700H; 701A] Ram Krishna Dalmia vs Shri Justice section R. Tendolkar, ; , explained.
1.10 The exclusion of employees of private establish ments cannot also be justified on administrative grounds.
The respondents have not placed any material before the High Court or in this Court as to in how many cases they had come across bogus certificates produced by private employees during the time the admission to evening classes was open also to private employees.
It may be that there were one or two cases of production of bogus certificates, but that cannot be a ground for the exclusion of all private employ ees from the benefit of getting legal education in the evening classes.
[701E F] Pannalal Binjraj vs Union of India, ; distin guished 1.11 There is no material to indicate that by the ex pression "regular employees" it is intended to include only those employees who will have an assured tenure of service for three years, that is to say, co extensive with the period of the Three Year LL.B. Degree Course.
The expression "regular employees", normally means bona fide employees.
Such bona fide employees may be permanent or temporary.
All that the University can insist is that one should be a bona fide employee and if there be materials to show that a candidate for admission in the evening classes is a bona fide employee, the University cannot further insist on an assured tenure of service of such an employee for a period of three years.
The reason for exclusion of private employ ees on the ground that there may not be an assured tenure of employment likely to continue for three years, therefore, not only does not stand scrutiny but is also unfair and unjust and cannot form the basis of such an exclusion.
[702A C] 1.12 It is difficult to understand the logic of the rule restricting admission in the evening classes to employees of Government/SemiGovernment institutions etc.
on the plea that such employees require legal education in public interest.
It may be that certain sections of Government employees require legal education hut, surely Government employees in general do not require legal education.
Certain private sector employees may also require legal education in the interest of the 694 establishments of which they are employees.
It cannot, therefore, be laid down that only Government employees require legal education and not private employees.
[703B] Jolly vs State of Kerala, AIR 1974 Kerala 178, approved.
The impugned rule, having made a classification which cannot be justified on any reasonable basis, must be held to be discriminatory and violative of article 14 of the Constitu tion.
[705B] 2.
It is not possible to bring the impugned rule in conformity with the provision of article 14 by putting a full stop after the words "regular employees" and striking down remaining part of the impugned rule, so as to read "Admis sion to evening classes is open only to regular employees".
Prima facie, the part which is sought to be retained is not severable from the remaining part of the rule.
The invalid portion is inextricably mixed up with the valid portion of the rule and, accordingly, the entire rule requires to be struck down.
[705G H] R.M.D. Chamarbaugwalla vs Union of India, ; , relied on.
B. Prabhakar Rao vs State of Andhra Pradesh, [1985] Supp.
SCC 432, distinguished.
Article 15(4) does not contemplate to reserve all the seats or the majority of the seats in an educational insti tution at the cost of the rest of the society.
The same principle should also apply with equal force in the case of cent percent reservation of seats in educational institu tions for a certain class of persons to the exclusion of meritorious candidates.
[707A B] M.R. Balaji vs State of Mysore, [1963] Supp. 1 SCR 439; Pradeep Jain vs Union of India, ; and Nida marti Maheshkumar vs State of Maharashtra, ; , relied on.
In the instant case, the respondents have reserved 64 seats out of 150 seats for Scheduled Castes, Scheduled Tribes, backward classes etc.
Out of the remaining 86 seats, reservation of seats for regular or bona fide employees for admission to evening classes should, in no event, exceed the limit of 50 per cent.
The admission to the remaining 43 seats will be open to the general candidates on merit basis.
Thus, while the respondents will be at liberty to reserve seats for regular or bona fide 695 employees for admission to evening classes, such reservation should not exceed SO per cent after deducting the number of seats reserved for Scheduled Castes, Scheduled Tribes, backward classes etc.
[709B C] 4.
The impugned rule is discriminatory and violative of article 14 of the Constitution and is accordingly struck down as invalid.
The refusal by the respondents to admit the appellants in the evening classes of the Three Years LL.B. degree course was illegal.
The appellants are, therefore, entitled to he admitted in the evening classes.
However, the striking down of the impugned rule should not in any manner whatsoever disturb the admissions already made for the session 1988 89.
The respondents should admit the appellants in the second semester which has commenced from January, 1989 and allow them to complete the Three Year LL.B. degree course, if not otherwise ineligible an the ground of unsat isfactory academic performance.
The seats allocated to the appellants will be in addition to the normal intake of students in the college.
[710D F] Ajay Hasia vs Khalid Mujib Sehravardi, ; , relied on.
|
ivil Appeal No. 870 of 1975.
From the Judgment and Order dated 24.1.1975 of the Bombay High Court in Special Civil Application No. 963 of 1973.
V.V. Vaze, V.N. Patil and A.S. Bhasme for the Appellant.
V.M. Tarkunde, V.N. Ganpule, Ms. Punam Kumari, Suman B. Rastogi, Ms. J. Wad and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the decision of the Bombay High Court on a writ petition filed by the respondent No. 1, hereinafter referred to as the respondent.
The application of the respondent for permitting construction on the land in question described as plots No. 29 and 30 in the town of Nasik was rejected by the Nasik Municipal Council, which led to the filing of the writ case.
In 1955 the respondent purchased the land in question from one Patwardhan and in 1957 obtained permission to construct a building thereon.
However, no construction was made and in March, 1962, a notification under section 4 of the Land Acquisition Act was issued for the purpose of estab lishing a Tonga Stand.
The respondent made a fresh applica tion for permission to make construction.
He was told not to do so on the ground that the land was reserved for road widening under a Town Planning Scheme which was being imple mented.
He however started construction work and when pre vented from so doing, filed a writ application in the High Court which was later withdrawn.
Subsequently he filed a suit in the civil court inter alia claiming damages.
Soon thereafter a resolution was passed by the Municipal Council on February 13, 1967 whereby a decision was taken to accord permission to the respondent as asked for.
The suit was thereafter withdrawn.
The aforesaid development came to the notice of the State Government, and the Municipal Council was asked to explain the circumstances, and a high.power Committee was appointed to examine the entire matter.
The aforesaid reso lution was thereafter rescinded by the Municipal Council, and the respondent filed a fresh application for permission to construct, which was kept in abeyance by the Council on the ground that the matter was under consideration by the Committee.
536 Another writ petition being Special Civil Application No. 993 of 1969 was thereupon filed by the respondent in the High Court in 1969.
While this case was pending, the Commit tee submitted its report and a fresh resolution was passed on 29.6.1970, a copy whereof is Ext. 'O ', inter alia, decid ing to re plan the Scheme with respect to the area in ques tion, in accordance with the recommendation of the Commit tee.
Consequently the matter was re opened and objections from the affected persons were invited and the respondent filed his objection petition.
However these facts were not placed before the High Court in Special Civil Application No. 993 of 1969 and, without taking them in consideration, the case was disposed of by the judgment contained in Ext. 'A ' dated 18.4.1972.
Without going into the merits of the matter, the High Court directed that; "The petitioner 's application to Respondent No. 1 dated July 18, 1968, for construction permission shall be disposed of by Respondent No. 1 in accordance with law".
The Municipal Council by its order dated the 21st of November, 1972 rejected the respond ent 's application on the basis of the resolution dated the 29th of June, 1970, Ext. '0 ', stating that the plots in question were required for road widening, and the Town Planning Scheme was being modified accordingly.
This order was challenged before the High Court by a writ application out of which the present appeal arises.
On behalf of the respondent it was urged before the High Court in support of the writ petition that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment, Ext. 'A ' in S.C.A. No. 993 of 1969 which was binding on the parties by reason of rule of res judica ta.
It was contended on behalf of the State of Maharashtra and the Municipal Council that the plea of res judicata was not available mainly for the reason that no final decision was arrived at in the earlier case.
It was pointed out that tlie 1970 Resolution, Ext. 'O ', was not even brought to the notice of the court by any party, and the High Court without considering the merits of the respondent 's prayer merely directed the Municipal Council to reconsider his application dated the 18th of July, 1968 and dispose it of in accordance with law.
The High Court was not impressed by this reply and allowed the writ application on the basis of the principle of constructive res judicata.
It has been observed that it was for the State or the Municipal Council to have relied upon the 1970 Resolution and since this was not done, their answer based upon the said resolution cannot now be enter tained.
By the impugned judgment it has also been said that having regard to the circumstances in which the earlier judgment Ext. 'A ' was delivered, the same must be interpret ed as issuing a peremptory direction to accord permission for construction without further consideration of the prayer on merits.
537 4.
Mr. V.M. Tarkunde, the learned counsel for the re spondent, while supporting the above view of the High Court has contended that the resolution of 13.2.1967 was passed by way of a compromise between the parties, and acting upon the same the respondent withdrew his suit which he had earlier filed in the civil court, and, therefore, the Municipal Council cannot be permitted to wriggle out of the situation.
He also relied upon an affidavit which has been filed re cently and suggested that if the present circumstances are taken into consideration the conclusion would be that the disputed land is not required either for widening the road or for any other public purpose, and the authorities have been acting mala fide at the behest of the respondents No. 4 and 5.
So far the 1970 Resolution is concerned, it is urged that the same should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court in the earlier case.
Mr. Patil, the learned counsel for the appellant, has reiterated the stand taken in the High Court that the judgment Ext. 'A ' did not decide any issue, and cannot be interpreted as a direction commanding the Municipal Council to allow the proposed construction.
He said that at the present stage it is not possible to finally decide the question as to whether the objections to the proposed scheme raised by the respondent have any substance or not.
They were invited by 1970 Resolution to place their case and to present their point of view before the Municipal Council.
It is stated on behalf of the Municipal Council that the plots in question are urgently needed for providing parking space for vehicles.
Having regard to the sequence of events in this case, we are unable to accept the contention that the Resolution dated 13.2.1967 was the result of a binding compromise between the parties.
The fact that the respondent has with drawn his suit for damages could not by itself indicate that the Municipality was bound by the said Resolution.
The Municipality was equally answerable to State Government which restrained the respondent from proceeding with the construction and appointed a high power Committee to go into the entire matter.
The Committee gave a report stating that the land in question would be needed for the proper circula tion of traffic.
Equally we find that there is no scope for application of the principles of res judicata.
We agree with the appellants that by the judgment Ext. 'A ' the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by reconsidering and disposing of the application of the respondent in accordance with law.
Besides, the question as to whether a particular Scheme 538 framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken.
A particular scheme may serve the public purpose at a given point of time but due to change of cir cumstances it may become essential to modify or substitute it by another scheme.
The requirements of the community do not remain static; they indeed, go on varying with the evolving process of social life.
Accordingly, there must be creative response from the public authority, and the public scheme must be varied to meet the changing needs of the public.
At the best for the respondent, it can be assumed that in 1967 when the resolution in his favour was passed, the acquisition of the land was not so urgently essential so as to call for his dispossession.
But for that reason it cannot be held that the plots became immune from being utilised for any other public purpose for ever.
The State or a body like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situation from time to time and take necessary decision periodically.
We, therefore, hold that the Resolu tion dated 13.2.1967 was not binding on the Municipal Coun cil so as to disable it to take a different decision later.
So far the plea of mala fides is concerned, the High Court has not recorded any finding; and we do not find any material to support the respondent 's allegation.
For the reasons mentioned above, the impugned judg ment of the High Court is set aside and the writ petition of the respondent filed in the High Court is dismissed.
The respondent may even now avail the opportunity given by the 1970 Resolution, and press his objections promptly and in that case the Municipal Council may dispose of the same in accordance with law.
The appeal is accordingly allowed, but the parties shall bear their own costs.
P.S.S. Appeal allowed.
| The respondent was permitted by the Municipal Council to construct a building on the disputed land.
Later, the site was reserved under section 4 of the Land Acquisition Act for a town planning scheme.
When the respondent was prevented from proceeding with the construction he filed a suit for dam ages.
The Municipal Council, however, by a resolution passed on February 13, 1967 decided to accord permission.
The suit was thereafter withdrawn.
The State Government appointed a high power committee to examine the entire matter.
The aforesaid resolution was rescinded by the Municipal Council.
The respondent made a fresh application in July, 1968 which was kept in abeyance.
He thereupon filed a writ peti tion before the High Court in 1969.
During the pendency of the case, the Municipal Council passed a resolution on June 29, 1970 deciding to replan the scheme with respect to the area in question in accordance with the recommendations of the high power committee.
The High Court by its judgment dated April 18, 1972 directed the Municipal Council to dispose of the application in accordance with law.
The latter, however, by its order dated November 21, 1972 rejected it on the basis of the 1970 resolution.
In the writ application challenging the said order it was contended for the respondent that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment which was binding on the par ties by reason of rule of res judicata.
For the State it was contended that no final decision was arrived at in the earlier case.
The High Court allowed the writ application on the basis of constructive res judicata.
In the appeal by special leave it was contended for the appellants 534 that the previous judgment could not be interpreted as a direction commanding the Municipal Council to allow the proposed construction, and that the plots were urgently needed for providing parking space for vehicles.
For the respondent it was contended that the resolution of February 13, 1967 was passed by way of a compromise between the parties and acting thereupon he withdrew his suit.
it was, therefore, binding on the Municipal Council, that the 1970 resolution should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court.
Allowing the appeal, this Court.
HELD: 1.
The resolution dated February 13, 1967 was not binding on the Municipal Council so as to disable it to take a different decision later.
It was not the result of a compromise between the parties.
[538D; 537E F] 2.1 At the best for the respondent, it could be assumed that when the said resolution in his favour was passed the acquisition of the land was not so urgently essential so as to call for his dispossession.
But for that reason it could not be said that the plots had become immune from being utilised for any other public purpose for ever.
[538B C] 2.2 The question as to whether a particular scheme framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken.
Such a scheme may serve the public purpose at a given point of time but due to change of circumstances it may become essential to modify or substitute it by anoth er scheme.
The requirements of the community do not remain static, they indeed, go on varying with the evolving process of social life.
Accordingly, the State or a body.like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situa tion from time to time and vary the scheme periodically to meet the changing needs of the public.
In the instant case, the high power committee appointed by the State had given a report stating that the land in question would he needed for the proper circulation of traffic.
[537H; 538; 537F G] 3.
There was no scope for application of the principle of res judicata.
By the judgment dated April 18, 1972, the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by recon sidering and disposing of the application of the respondent in accordance with law.
[537G H] 535
|
vil Appeal No. 41334 134 of 1984.
From the Judgment and Order dated 5.3.1982 of the Delhi High Court in L.P.A. No. 125 and 115 of 1981.
Ashok Mahajan, G.D. Gupta and R. Venkataramani for the Appellants.
Anil Dev Singh, Mrs. Indra Sawhney, Mrs. Sushma Suri and C.V.S. Rao for the Respondents.
793 The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These two appeals by special leave raise the question of determination of seniority of the appellants in the cadre of Lower Division Clerks.
The appeals are preferred against the judgment of the High Court of Delhi dated March 5, 1982 in LPA No. 125 of 1981.
The appellants were originally recruited as Civilian School Masters or L.D.Cs., Leading Hand (Technical), etc.
either in the Lower Defence Installations comprising Ordnance Factories, Ordnance Depots, Workshops, Regimental Centres, Units, Command Headquarters, etc.
under the control of Army Headquarters, New Delhi.
Some of the appellants were declared as surplus in those establishments and they came to be posted/transferred to the Armed Forces Headquarters and inter service organisations as LDCs.
Their posting/transfer was done in the public interest.
They joined the service in the Armed Force Headquarters on various dates between 1960 to 1964.
Some of them were later promoted as Upper Division Clerks.
While they were thus continuing in service, rules flamed under proviso to Article 309 of the Constitution known as "The Armed Forces Headquarters Clerical Service Rules, 1968 ("The Rules")" were brought into force with effect from March 1, 1968.
The Rules inter alia, provide that the seniority in the service shall be determined on the basis of date of confirmation.
Prior to the coming into force of the Rules, the seniority in the cadre of service was required to be determined on the basis of length of service.
It was so laid down by several official memorandums of the Government or that of the Defence Ministry.
After the Rules came into force, the seniority of the appellants was sought to be disturbed on the basis of confirmation as prescribed under the Rules.
The appellants, therefore, moved the High Court of Delhi under Article 226 of the Constitu tion contending inter alia, that length of service should be the basis of inter se seniority.
They also raised some other questions with which we are not concerned.
The learned single Judge accepted the claim of the appellants and made an order dated April 8, 1981.
The relevant portion of the order runs as follows: "It is not disputed by the respond ents that the only principle of seniority laid down by various Memoranda was the principle of seniority laid down by various Memoranda was the principle of length of service.
No memo randa of Administrative Instructions are brought to my notice by 794 the respondents, where any other principle has been laid down.
The petitioners, in all the three petitioners were originally in common LDC cadre and are in the common cadre of U.D.C. now.
It cannot be said that some of them (Writ Petition No. 423 of 1975) will all be governed by the principles of length of service and no others because they have not expressly stated that their seniority should be fixed on the principles of length of serv ice.
It may be noted that in 1959 the Home Ministry issued general principles of seniori ty to be followed in all Government services except where a service follows a different set of principles.
The said Memorandum lays down that seniority of all Government employees, employed subsequent to the issuance of the said Memoranda, will be decided on the basis of the date of confirmation.
It further lays down that all confirmed employees would be treated senior to the non confirmed employees.
The petitioners would have been ordinarily governed by these principles since they joined the Armed Forces on transfer after 1959.
But the Ministry of Defence preferred to continue the principles of length of service (which they had been following prior to 1959), even after the 1959 Memorandum came into operation.
The 1963 Memorandum of the Defence Ministry incorporated the said principles and all Memoranda issued thereafter reiterated the principles of length of service.
In these circumstances, the contention of respondents cannot be accepted.
The seniority of the peti tioners shall be decided by the principle of length of service, that is, their date of joining the Army Headquarters as LDCs.
Of course, some of them entitled to additional benefit of past service under the said Memo randum were given that benefit.
Since this is the question raised in Civil Writ Petition No. 423/1975, it must succeed." Being aggrieved by the above decision, the Union of India preferred an Appeal before the Division Bench of the High Court.
The Division Bench reversed the above view holding that the seniority of the appellants must fall to be determined on the basis of confirmation as prescribed by the Rules and not on the length of service.
The view taken by the Division Bench has been challenged in these appeals.
We have perused the judgment of the Division Bench and also considered the submissions of the parties.
The view taken by the Divi 795 sion Bench appears to be erroneous.
The Rules, no doubt provide that all persons substantially appointed to a grade shall rank senior to those holding officiating appointments in the grade.
But the Rules have no retrospective effect.
It could not impair the existing rights of officials who were appointed long prior to the Rules came into force.
The office memorandums to which learned single Judge has re ferred in detail and which we have extracted above clearly laid down that length of service should be the guiding principle of arranging the inter se seniority of officials.
The appellants being governed by those memorandums had the fight to have their seniority determined accordingly before the Rules came into force.
That being their right, the Rules cannot take it away to their prejudice.
The Division Bench was, therefore, clearly in error in directing that the seniority shall follow their respective confirmations.
In construing similar office memorandums in a different context, this is what this Court has observed in Union of India vs M. Ravi Varma & Anr., ; at 1002: "As the said Office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the con clusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appoint ed prior to December 22.
would have to be determined on the basis of their length of service in accordance with Office Memorandum dated June 22, 1949 and not on the basis of the date of their confirmation.
" These considerations apply equally to the present case as well.
The general rule is if seniority is to be regulated in a particular manner in a given period, it shall be given effect to, and shall not be varied to disadvantage retro spectively.
The view taken by the Division Bench, which is in substance contrary to this principle is not sound and cannot be supported.
In the result, these appeals are allowed with costs.
In reversal of the judgment of the Division Bench, we restore that of the learned single Judge.
N.P.V. Appeals allowed.
| The appellant assessee, a body of individuals, purchased two pieces of land in the year 1966.
In 1970 it granted a mining lease to a private company (an allied concern) to extract clay for a period of ten years at a premium of Rs. 5 lakhs in addition to payment of royalty.
The Income tax Officer construed the lease deed as transferring a lease hold interest in the land in favour of the company and came to the conclusion that the transfer was assessable to capital gains tax.
For the purpose of comput ing the extent of tax, the Income tax Officer valued the lease hold interest at 5/8th of the sale price of the entire land, computed the cost at acquisition of the lease hold interest say Rs. 17,040, and after deducting this sum from the sale consideration of Rs.5 lakhs, determined a sum of Rs.4,82,960 as long term capital gains.
Being aggrieved by the aforesaid order of the Income tax Officer the assessee preferred an appeal to the Appellate Assistant Commissioner.
The Appellate Assistant Commissioner confirmed the assessment but allowed deduction on the entire price of the land on the ground that the cost for the pur pose of ascertaining the capital gains would be the total price of the land paid by assessee.
Not being satisfied, the assessee preferred an appeal to the Income tax Appellate Tribunal which confirmed the order of the Appellate Commissioner and dismissed the appeal.
The High Court on a reference held that the right conferred on 597 the lessee under the lease deed was also a capital asset in the hands of the assessee lessor, and that there was a transfer of capital asset for a consideration of Rs.5 lakhs.
The High Court accordingly answered the reference against the assessee, .but granted a certificate under section 261 of the Act to appeal to this Court.
On behalf of the assessee appellant it was contended: (1) that conceptually there is no 'cost of acquisition ' which is attributable to the right of limited enjoyment transferred by the grant of the lease, and (2) relying on the decision of this Court in C.I. T. vs B.C. Srinivas Sherry, ; SC it was submitted that since the cost of acquisition of the right granted under the lease cannot be determined the computation provisions under the Act cannot apply at all, and as such section 45 of the Act is not attracted.
On the question: whether the grant of a mining lease for a period of ten years by the assessee can give rise to a capital gain taxable under section 45 of the Income tax Act, 1961.
Dismissing the appeal, the Court, HELD: 1(a) Section 2(14) of the Income Tax Act defines "capital asset" as "property of any kind held by an asses see.
" What is parted with in the instant case, under the terms of the deed is the right to exploit the land by ex tracting clay which right directly flows from the ownership of the land.
The said right evaluated in terms of money forms part of the cost of acquiring the land.
[601C D] 1(b).
If a transfer of a capital asset in section 45 of the Act includes grant of a mining lease for any period, then obviously, the "cost of acquisition" of the land would include the "cost of acquisition" of the mining right under the lease.
The grant of a lease being a transfer of an asset, there is no escape from the conclusion that there is a live nexus between the "cost of acquisition" of the land and the right granted under the lease.
[601G H; 602A] In the instant case, the amount of Rs.27,260 paid by the assessee was not only the cost of acquiring the land but also acquiring a bundle of rights in the said land including the right to grant lease.
[602A] 1(c) The apportionment of the cost of acquisition is a question of fact to be determined by the Income tax Officer in each case on the basis of evidence.
The determination of the cost of the right to excavate 598 clay in the land in terms of money may be difficult but is nonetheless of a money value and the best valuation possible must be made.
In the instant came, the Income tax Officer worked out the cost of the lease held interest by adopting the 5/8th ratio, though the Appellate Assistant Commissioner gave the benefit to the assessee of the full price of the land paid by him.
[602B D] 1(d) Once the cost of lease hold right is determined than there is no difficulty in making apportionment.
[602E] Gold Coast Selection Trust.
Ltd. vs Inspector of Taxes, (supp); Traders and Mining Ltd. vs
C.I.T., ; R.K. Palshikar (HUF) vs Commissioner of Income Tax, M.P. Nagpur, ; , referred to.
2(a) The value of lease hold rights in the cost of acquisition of land being determinable the computation provision under the Act are applicable, and section 45 would he attracted.
[602E F] 2(b) The date of acquisition of the right to grant lease has to be the same as the date of acquiring the free hold rights.
[603B] C.I.T. vs B.C. Srinivas Shetty, ; distinguished.
|
Writ Petition (Crl.) No. 124 of 1988; (Under Article 32 of the Constitution of India) M.C. Kapadia, Y.P. Dhingra, B.K. Satija and S.S. Khanduja for the Petitioner.
P.S. Poti and M.N. Shroff for the Respondent.
The following Order of the Court was delivered: O R D E R After hearing learned counsel for the parties at quite some length, we are satisfied that the failure on the part of the State Government to consider and decide the representation made to them by the petitioner against his detention by an order of detention dated 11th June, 1987 passed by the Commissioner of Police, Surat City under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985, makes his continued detention invalid and constitutionally impermissible.
Apart from various other contentions, Shri Kapadia, learned counsel for the petitioner rightly contended that there was no explanation at all as to why the representation made by the petitioner to the State Government was not attended to and kept pending.
In view of the wholly unexplained and unduly long delay rather the undeniable failure on the part of the State Government in the disposal of the representation renders the detention of the petitioner illegal.
On the view that we take, there is no need to deal with various contentions 830 raised by him on behalf of the petitioner.
The learned counsel drew our attention to paragraph 8(e) of the Writ Petition where the petitioner avers inter alia that he had made a representation dated 15th July, 1987 to the Police Commissioner, Surat City, as also to the State Government but 'both the authorities had not considered the representation so made with utmost promptitude and that there was in fact no disposal of the said representation by the detaining authority as well as the State Government '.
This assertion of his is sought to be met by the Commissioner of Police, Surat City, the detaining authority, in the counter affidavit.
It is averred in paragraph III(e) that he had received the representation on 21st July, 1987 and rejected it on the same day after due consideration.
This is not a substantial compliance of the constitutional rights enshrined in article 22(5) of the Constitution.
The petitioner had the right not only to make a representation to the detaining authority but also to the State Government which had the power of revocation.
In view of this, Shri P.S. Poti, learned counsel appearing on behalf of the State Government, with his usual fairness, rightly accepts that the denial in paragraph III(e) of the counter affidavit was not sufficient.
The fact remains that the allegation made by the petitioner that he had made a further representation to the State Government has not been controverted.
The State Government has disdained from filing any counter affidavit for obvious reasons.
In Mohinuddin vs District Magistrate, Beed & Ors., ; this Court had occasion to deal with this aspect.
In that case, there was wholly unexplained, unduly long delay in the disposal of the representation by the State Government and it was held that further detention of the detenu was rendered invalid and constitutionally impermissible.
The right of representation under article 22(5) is a valuable constitutional right and it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed.
It was observed by one of us (SEN,J.): "We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reasons for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws.
The history of personal liberty is largely the history of insistence on observance of the procedural safeguards.
" It was next observed: 831 "It goes without saying that the constitutional right to make a representation guaranteed by article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made.
The right of representation under article 22(5) is a valuable constitutional right and is not a mere formality.
The representation made by the appellant addressed to the Chief Minister could not lie unattended to in the portals of the Secretariat while the Chief Minister was attending to other political affairs.
" In view of the failure in the disposal of the representation by the State Government, it must be held that the further detention of the petitioner is illegal and constitutionally impermissible.
The writ petition must therefore succeed and is allowed.
The order of detention passed by the Commissioner of Police, Surat City under sub section
(2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 is accordingly quashed.
We direct that the petitioner be set at liberty forthwith.
N.P.V. Petition allowed.
| The appellants are a Company and its Managing Director.
The Company imported two consignments of refined industrial Coconut oil.
The ships carrying the aforesaid cargo arrived at the port of destination on 10th September, 1982 and 22nd September, 1982.
The appellant No. 1 filed the bills of entry for release of the said cargo in the office of the Assistant Collector of Customs.
Instead of release of the cargo, notices to show cause were received by the appellant on the allegation that the import of industrial coconut oil was not legal as it was a canalised item.
The appellant No. I was also called upon to show cause as to why the cargo should not be confiscated under section 111(d) of the and also as to why he should be not penalised under Section 112 thereof.
The appellant showed cause and took the stand that import of industrial coconut oil was not banned under the import policy of the Government for the relevant period.
When personal hearing was afforded, it was also pointed out that the notices issued by Respondent No. 3 were the outcome of bias, and that the Joint Chief Controller of Imports and Exports had taken undue interest in the matter.
By the adjudication orders dated 17th December, 1982 and 20th December, 1982, the respondent No. 3 came to the conclusion that 953 "coconut oil", whether edible or not, were canalised items and fell within the ambit of Appendix 9 Para 5(1) of the Import Policy of 1980 81, and that it was also not an item under the o.
G.L. of 1980 81 Policy.
It was held that the items that were imported were liable to be confiscated under section 111(d) of the , but an option was given to redeem the goods on payment of Rs.3 crores and Rs.2 crores respectively as redemption fines.
The appellants filed two Writ Petitions challenging the action of the Collector.
The Writ Petitions were heard by a Full Bench of the High Court.
Two Judges held that the writ petitions were liable to be dismissed, while the third Judge took the view that the action of the Collector was totally untenable and that the writ petitions should be allowed and the order of the Collector should be set aside.
The majority of the Judges were also of the view that the quantum of redemption fine should be considered by the Customs Appellate Tribunal.
In the appeals to this Court it was contended on behalf of the appellants: (1) The import policy of which year would be applicable the period during which the licences were issued or the time when import actually took place.
(2) Whether "coconut oil" appearing in para 5 of Appendix 9 of the Import Policy of 1980 81 was confined to the edible variety or covered the industrial variety.
(3) Whether in the face of the decision of the Board and Central Government as the statutory appellate and revisional authorities, it was open to the Collector functioning in lower tier to take a contrary view of the matter in exercise of quasi judicial jurisdiction, and (4) Whether the orders of the Collector were vitiated for breach of rules of natural justice, and collateral considerations in the making of the order.
Dismissing the Appeals, ^ HELD: 1.
The High Court has come to the correct conclusion that the terms of the Import Policy of 1980 81 would apply to the facts of these cases.
[957F] In the instant case, the licences were either of 1980 or 1981 and were revalidated from time to time subject to the condition that items which do not appear in Appendices 26, 5 and 7 of the Import Policy of 1982 83 will not be imported.[957D] 2(a) Whatever may have been the reason for specifying 'edible and non edible ' classification in 1981 82, if 'coconut oil ' takes within its 954 fold all varieties, it must follow that in 1980 81, all varieties of coconut oil were included in paragraph 5 of Appendix 9.
[958H;959A] (b) If 'coconut oil ' of the industrial variety was covered by paragraph 5 of Appendix 9 then it would not have been included in Appendix 10 and, therefore, could not have been imported under OGL.
[958C] (c) In Appendix 9, no classification of coconut oil is given and, therefore, all varieties of coconut oil should be taken as covered by the term.
[958D] (d) When a customer goes to the market and asks for coconut oil to buy, he is not necessarily supplied the edible variety.
Coconut oil is put to less of edible use than non edible.
[958E] (e) The S.T.C. was not competent to bind the customs authorities in respect of their statutory functioning, and if on actual interpretation it turns out that 'coconut oil ' covered what the appellants have imported, the fact situation cannot take a different turn on account of the letter of the S.T.C.
At the most, it may have some relevancy when the quantum of redemption fine is considered by the Tribunal.
[959C D] 3.
In a tier system, undoubtedly decisions of higher authorities are binding on lower authorities and quasi judicial Tribunals are also bound by this discipline.
However, what the Court is now concerned with is not disciplining the Collector in his quasi judicial conduct, but to ascertain what the correct position in the matter is.
[959H;960A B] 4.
The observance of Rules of Natural Justice is not referable to the fatness of the stake but is essentially related to the demands of a given situation.
The position here is covered by statutory provisions and it is well settled that Rules of Natural Justice do not supplant but supplement the law.
[960D E] Broome vs Cassell & Co., ; referred to.
|
Civil Appeal No. 1599 of 1968.
Appeal by Special Leave from the Judgment and Order dated the 16th February 1968 of the Calcutta High Court in Civil Rule No. 1030 of 1967.
D. N. Mukherjee and N. R. Chaudhury for the Appellants.
Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave is directed against a Judgment of the Calcutta High Court setting aside in revision the finding of the trial court on the issue whether the relationship of landlord and tenant subsisted between the parties in a suit for ejectment.
The issue which arises on the interaction of two statutes, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the West Bengal Premises Tenancy Act, 1956, which repeals the earlier Act but keeps it alive for proceedings pending on the date of repeal, involves the question, is the right conferred on the sub tenant by the 1956 Act of being declared a tenant directly under the superior landlord available to a sub tenant against whom a suit for ejectment was pending when that Act came into force ? The appeal turns on the answer to this question.
The material facts leading to the impugned order are these.
The respondent was a tenant of premises No. 17/1E Gopal Nagar Road, Alipore, Calcutta, and his landlord was one Jagabandhu Saha, the owner of the house, Dilip Narayan Roy Chowdhury was a sub tenant under the respondent in respect of the ground floor flat paying a monthly rent of Rs. 75/ .
The respondent instituted a suit in the Munsif 's court at Alipore on March 21, 1956 when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force, seeking to evict Roy Choudhury on the ground that he was a defaulter in payment of rent.
This Act was a temporary statute due to expire on March 31, 1956, but on that date the West Bengal Premises Tenancy Act, 1956 was brought into operation repealing the 597 temporary Act before it expired.
The material part of section 40 of the 1956 Act which repealed the 1950 Act is as follows: "Repeal and savings. (1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed.
(2) Notwithstanding the repeal of the said Act: (a) any proceeding pending on the 31st day of March, 1956, may be continued, or, (b) x x x x x as if the said Act had been in force and had not been repealed or had not expired :" Section 16 of the 1956 Act confers on the sub tenant the right to become a tenant directly under the landlord.
Sub section (2) of section 16 provides inter alia that where before the commencement of this Act, the tenant, with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub tenant must give notice to the landlord of such subletting within the prescribed period.
Sub section (3) of section 16 provides that in any such case where the landlord had not consented in writing or denies that he gave oral consent, the Rent Controller on an application made to him either by the landlord or the sub tenant shall make an order declaring that the tenant 's interest in so much of the premises as has been sublet shall cease and that the sub tenant shall become a tenant directly under the landlord from the date of the order.
The Rent Controller is also required to fix the rent payable by the sub tenant to the landlord from the date of the order.
Sub tenant Roy Choudhury served a notice under section 16(2) of the 1956 Act upon the superior landlord and applied under section 16(3) for being declared a tenant directly under him.
On July 31, 1956 the Rent Controller recorded a finding on this application that Roy Choudhury was entitled to the declaration asked for overruling the objections raised by the respondent.
On February 23, 1957 the Rent Controller concluded the proceeding under section 16(3) by finally declaring that the sub tenant was a tenant directly under the superior landlord with effect from that date, and fixing the rent payable by him.
The appeal preferred by the respondent from this order was dismissed by the appellate authority.
In the meantime, on August 21, 1956 the respondent had made an application under section 14(4) of the 1950 Act in the suit for eviction which was pending.
Section 14(4) of the 1950 Act permitted the landlord to make an application in the suit for an order on the tenant to deposit month by month the rent at the rate at which it was last paid and also the arrears of rent, if any, and provided that on failure to deposit the arrears of rent or the rent for any month within the period prescribed for such deposits, the court would make an order striking out the tenant 's defence against ejectment so that the tenant would be in he same position as if he had not defended the claim to 598 ejectment.
On this application the Munsif on September 26, 1956 directed the appellant to deposit a certain sum as arrears of rent and also rent month by month at the rate of Rs. 75/ .
After the declaration of tenancy under section 16(3), Roy Choudhury was permitted to amend his written statement in the suit by adding a paragraph questioning the relationship of landlord and tenant between the respondent and himself.
It is unnecessary to refer to the various proceedings in the suit that followed, in the course of which the High Court was moved more than once by either party.
On January 24, 1965 Roy Choudhury died and the present appellants were substituted in his place in the suit as his heirs and legal representatives.
On November 1, 1965 the Munsif framed an additional issue, being issue No. 9, which was as follows: "Has the alleged relationship of landlord and tenant between the parties been determined by final orders dated 31 7 56 and 23 2 57 passed by the R. C. (Rent Controller) Calcutta in Case No. 243B of 1956 ?" The Munsif took up for consideration the application under section 14(4) and the additional issue No. 9 together and by his order dated February 20, 1967 found that the Rent Controller had jurisdiction to pass the order under section 16(3) declaring the defendant to be a direct tenant under the superior landlord, and that the relationship of landlord and tenant between the parties ceased by virtue of the order made under section 16(3).
The additional issue No. 9 was accordingly decided in favour of the defendant and the application under section 14(4) of the 1950 Act was dismissed.
The plaintiff moved the High Court in revision against this order.
The revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting the application under section 14(4) but set aside the finding on issue No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord and tenant".
The propriety of this order is challenged by the tenant defendants.
In the course of his Judgment the learned Judge recorded the following findings: (i) "The validity or the binding nature of the order under section 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative".
(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.
(iii)As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit".
599 It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to.
The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40, the entire proceeding under section 16(3) was without jurisdiction.
The doctrine of lis pendens can of course have no application to this case.
Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail".
[observation of Turner L. J. in Belamy vs Sabine, ; (584) quoted with approval by the Privy Council in Faiyaz Husain Khan vs Munshi Prag Narail & others, 34 I.A. 102 (105).] But a sub tenant who avails of the provisions of section 16(3) which extinguishes the tenant 's interest in the portion of the premises sublet and confers on the sub tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite.
Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another.
When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.
As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act.
According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealdd.
This however does not mean that even if the 1956 Act created a new right in favour of the sub tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force.
'Tenant ' as defined in section 2(h) of the 1956 Act includes a person continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him.
A sub tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him.
That being so, we do not see why he 600 should not be entitled to the benefit conferred by section 16(3).
The intention of the legislature, which is paramount, is clear to upgrade the subtenant and make him a tenant directly under the superior landlord.
This is a new right given to the sub tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub tenant against whom a suit was pending will be denied this additional right.
The High Court has held that the effect of the order under section 16(3) must be considered in the suit.
Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub tenant under the 1956 Act has to be given effect to and the suit decided accordingly.
It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.
The appeal is allowed, the order of the High Court appealed from is set and that of the trial court restored.
The appellants will be entitled to their costs in this Court and in the High Court.
P.H.P. Appeal allowed.
| Under the Income tax Act 1961 one of the items not included in the total income of an assessee for purposes of tax is under s.11 income derived from property held under trust wholly for charitable purpose.
Charitable purpose is defined in s.2 (xv).
Chambers of commerce, promoting the trade interest of the commercial community, have been regarded as pursuing charitable purposes within the meaning of s.2 (xv).
But under cover of charitable purposes C ' they have been indulging in various activities, and deriving tax free profit.
Therefore, section 2 (xv) was amended by adding a clause at the end.
Under the amended definition, unless the context` otherwise requires, charitable purpose includes the advancement of any object of general public utility not involving the carrying on of any activity for profit.
^ HELD: The income of the assesses, which are chambers of commerce, from three sources, namely, (a) arbitration fees levied by them; (b) fees collected for issuing certificates of origin; and (c) share of profit in another company for issue of certificates of weighment and measurement, which services are extended to members and non members.
that is, to be trade generally, is not entitled to the exemption, and is liable to tax.[845E G] (1) The test is to ask for answers to the following questions: (a) Is the object of the assessee one of general public utility; (b) Does the advancement of the object involve activities bringing in money? (c) If so, are such activities undertaken (1) for profit or (ii) without profit.
Even if ' (a) and (b) are answered affirmatively, if (c) (1) is also answered affirmatively the claim for exemption collapses.
[844B C] (2) Section 2 (xv) must be interpreted in such a manner that every word is given a meaning and not to treat any expression as redundant or miss the accent of the amendatory phrase.
So viewed, an institution which carries out charitable purposes out of income 'derived from property held under trust wholly for charitable purposes ' may still forfeit the claim to exemption in respect of such takings or incomes as may come to it from pursuing any activity for profit.
By the new definition the benefit of exclusion from total income is taken away where, in accomplishing a charitable purpose, the institution engages itself in activities for profit If ' it wants immunity from taxation the means of fulfilling charitable purposes must be unsullied by profit making ventures.
The advancement of the object of general public utility must not involve the carrying on of any activity for profit.
otherwise, it will lead to the absurd conclusion that a Chamber of Commerce may run a printing press, advertisement business, market exploration activity or even export promotion business and levy huge sums from its customer whether they are members of the organisation or not and still claim a blanket exemption from tax on the score that the objects of general public utility which it had set forth for itself implied these activities even though profits or surpluses may arise therefrom.
If it runs special types of services for the benefit of manufacturers and charges remuneration from them.
it us undoubtedly an activity which.
if carried on by private agencies, would be taxable.
and there is no reason why a Chamber of Commerce should be exempt.
The policy of the statute is to give tax relief for charitable purposes.
An undertaking by a business organisation is ordinarily assumed to be for profit unless expressly or by necessary implication.
Or by eloquent surrounding circumstances the making of ' profit stands clearly negatived.
For example.
if ' there is a restructure provision in the bye laws which insists that the charges levied for services of public utility rendered are to be on a 'no profit ' basis, that is, that it shall not charge more 831 than is actually needed for the rendering of the services then it earns the benefit of s.2(xv).
It may not be an exact equivalent such mathematical precision being impossible in such case and there may be little surplus at the end of the year; but the broad inhibition against making profit is a good guarantee that the carrying on of the activity is not for profit.[839F 840D. G 841C] (3) The answer to the question whether an activity is one for or not for profit depends on the facts.
An activity which yields profit or gain in the ordinary course must be presumed to have been done for profit or gain There may be activities, where` without intent or purpose the activity may yield profit.
Even then it may legitimately be said that the activity is for profit in the sense that it is ` appropriate or adapted to such profit.
[844C E F] (4) If The activity is prone to yielding income and in fact results in profit the Revenue will examine the reality or pretence of the condition that the activity is not for profit But; if the broad basis that the activity is not for profit is made out, by the assessee, the Revenue will not be meticulous and charge every chance excess or random surplus.
[844G 845A] (5) The assesses contention that the Revenue should only look at the dominant intent or real object of the assessee and that if its activity is wrapped up entangled or intertwined with a public utility object then any incidental profit arising from it is not taxable.
does not afford a valid or satisfactory test.
[841D F.] (6) Equally The contention of the Revenue that all activities which are prone to produce profits should be excluded is not correct.
[840E F] (7) In the present case the issuance of weighment and measurement certificates the issuance of certificates of origin and the settlement of disputes by arbitration are great facilities for trader of general public utility.
There is however nothing in the memorandum or articles of association of the assesses which provides for only nominal fees and sets a limit on making large profits from the services.
[845B E G H] Loka Shikshana Trust vs C.I.T. Mysore [1976] 1 S.C.R: 471.
C.I.T. vs Andhra Chamber of Commerce [1965] 55 I.T.R. 722 applied.
C.I.T. vs Dharmodayam Co. overruled.
ARGUMENTS For the appellant l.
The primary or dominant or real objects of the Indian Chamber Of Commerce are to promote protect, aid and stimulate trade, commerce and industry in India.
(Clause 3 of the Memorandum of Association).
The Income received was to be applied solely for the promotion of the objects and upon dissolution no property was to be paid or distributed among the members but was to be given or transferred to some other institution having similar objects.
(Clauses 4 and 8 of the Memorandum of Association).
It is well settled that These objects which lead to economic prosperity and enure for the benefit of the entire community are objects of general public utility and as such as charitable.
See ITR 722 Commissioner of Income tax vs Andhra Chamber of Commerce.
The Indian Chamber of Commerce provides inter alia for arbitration facilities so that trade disputes may be speedily and efficiently settled.
It further provides for certificates of origin and certificates of weighment and measurement to be issued under the under Entry 18 and Entry 6 of the Schedule to the said Act respectively These certificates can only be issued by certain bodies such as recognised chambers of commerce.
The certificates are necessary for facilitating trade.
5 L1127SCI/75 832 The carrying on of the activities of granting certificate of origin and/or weighment and measurement and arbitration are not activities for profit hut are in he nature of services and/or facilities provided to the commercial community.
As fees are charged the result at the end of the year is sometimes a loss and on times surplus.
The dominant purpose for these service is not profit making but rendering a statutory service for trade and commerce generally.
The services cannot be gratuitous as the Chamber cannot be expected to be a charitable institution like as Dharamsala.
The fees charged are related to the services rendered by way of quid pro quo.
Quid pro quo does not mean an equivalent mathematically.
If incidental to the advancement of the objects of general public utility some services are rendered for fees as a result of which income results it does not means that the objects of the Chamber involves carrying on Any activity for profit in the sense of that being. the dominent object.
The dominant or real purpose is not to earn profit or income but to serve trade and help the commercial community.
As such the above mentioned activities carried on by the Chamber will not be activities for profit.
involving in the dominant object of the Chamber.
In order to be activities for profit the involvement of profit making should be by the object and must be of such a degree or to such an extent as to lead to the influence that profit making is the real object.
Since the real or dominant objects of the Chamber are not for profit and profit is not an essential ingredient but a mere bye product of the activities of the Chamber.
The income must be held to be exempt under section 11(1) d with section 2(15) of the Act.
See The Sole Trustee Loka Shikshana Trust vs Commissioner of Income tax, Mysore.
The purpose and/or dominant object must be distinguished from the powers which are incidental to the carrying out of the objects of The Trust.
See of Income tax vs Breach Candy Swimming Bath Trust.
[1918] Appeal Cases 514 Cotman vs Brougham 4.
Under section 2(15) of the Act the words carrying on of any activity for profit must mean an activity whose dominant object is profit making and not an activity which may incidentally result in some profit as a bye product.
Of this meaning is not given then there.
will be no activity of any institution doing work of general public utility which will he exempt including activities like those of All India Spinners Association.
If the primary and dominant purpose is charitable then even if there are some incidental powers which are not charitable it will not prevent the trust from being a valid charity.
The intention will have to be gleaned from the Constitution of the Trust or the Memorandum of Association.
See Re: Trustees of The Tribune.
All India Spinners Association vs Commissioner of Income tax of Income tax vs And/1/a Chamber of Commerce Andhra Pradesh State Transport Corporation vs Commissioner of Income tax.
Under Section 11 of the Income tax Act 1961 it is the income derived from property held under trust wholly for charitable purposes which is not to be included in the total income.
The word property is .
Of wide import and can include a business or an undertaking or fees and restaurant charges etc.
All India Spinners Association vs Commissioner of Income 833 of Income tax, Bombay City vs Breach Candy Swimming Bath Trust.
K Trust, Bombay vs Commissioner of Income tax, Excess profit Tax, Bombay.
of Income tax, Kerala & Coimbatore vs P. Krishna Warriar.
7 In any event the activities of arbitration and granting certificates of origin and weighment and/or measurement are not activities "for profit".
of Income tax, Kerala v Indian Chamber of Commerce.
Commissioner of Income tax vs Kochin Chamber of Commerce.
[1975] 40 Taxation (III) 15 Commissioner of Income tax Kerala vs Ernakulam Chamber of Commerce.
As such the Chamber is entitled to exemption under section 11 read with 2(15) of the Income tax Act.
For the Respondent 1.
The Appellant Chamber of commerce was deriving income by performing three kinds of services namely providing arbitration facilities for standard weights and measurements to traders in general.
This was in furtherance of its objects clause 2(a); 2(b); 2(c); 2(d); 2(z); 3(h); 3(i); 3(p); 2(q); 3(v) The performance of such services for remuneration clearly was an activity for profit and the said activity was closely linked with.
Or involved with the advancement of the aforesaid objects of the Chamber.
Such close linking and involvement by itself rendered the object non charitable within the meaning of section 2 (15) of the Income tax Act 1961.
If the Chamber of Commerce performed the same kind of services for it members for remuneration the income so derived was certainly liable to tax under section 28(iii) of the Income tax Act, 1961.
The position became worse if the income was so derived by rendering such services to non member traders in general.
It was assumed by the Tribunal and by the High Court for which there was no warrant that the income from the said three sources was income derived from property held under trust and the case proceeded on such assumption although the High Court doubted the validity of such an assumption as is clear from the text of their judgment at pp.
76 77 of the Paper Book.
The High Court.
therefore proceeded to consider only whether the production of the income from the aforesaid three sources was involved with the advancement of any object of general public utility.
The Tribunal had held that such income was derived by carrying out the ancillary object of the Trust and not the main object although it found as a fact that the income was deriv d from; carrying on an activity for profit.
The High Court did not recognise such .
distinction and it was urged that the High Court was right.
No valid reason could be found for making a distinction between any individual or any association of persons on the one hand, and the appellant on the other hand in respect of producing taxable income by carrying on identical activities for profit.
It was beyond any doubt that ii an Individual or an association of persons had carried on similar activities from profit they would not be entitled to any exemption from tax.
The appellant therefore could not be placed at a better level especially when the words of Statute themselves had debarred it from getting the exemption.
Prior to the introduction of the qualifying clause in section 2(15) of the Current Act such bodies or 834 Organisations were undoubtedly enjoying exemption by virtue of the repealed Indian Income tax Act of 1922.
The Legislature clearly intended to remove this unreasonable distinction by adding the qualifying clause as it is found in section 2(15) of the Income tax Act, 1961.
The effect of such amendment of the definition was that the institutions otherwise regarded as charitable trusts have now been placed at par with any private organisation or individual who would render the same kind of services to the public for profit.
Unless the memorandum or articles governing a Trust or any Institution prohibated the making of profit by carrying on any activity or the earning of the profits was not ruled out and in fact profit resulted, the Court would assume that the activity was carried on for profit.
In support of this the Revenue counsel relied upon the judgment of the Supreme Court recently delivered in the case of Sole Trustee Loke Shikshana Trust There was no such prohibition in the regulations governing the activities of the Indian Chamber of Commerce and therefore its case fell squarely within the principles valid by the Supreme Court in the case of Loke Shikshana Trust.
In order that an activity might be called a business activity or any other activity for profit it was not necessary to show that it was an organised activity or that it was indulged in with a motive on making profit.
it was well established that it was not the motive of a person doing in act which decided whether the act done by him was carrying on an activity for profit .
If any activity.
business of otherwise in fact produced an income that was taxable income and was none the less so because it was carried on without the motive of producing an income.
Reference was invited in this connection to the observations o the Supreme Court in the case of P. Krishna Menon vs Commissioner of Income tax, Mysore (35 I.T.R. p.
Even in the ease of classical charities such as promotion of education and giving of medical relief no exemption is available if these two activities of charitable nature are carried on for purposes of profit.
A fortiori, the exemption will be denied in the case of advancement of an object of general public utility howsoever charitable it may otherwise be regarded in character if the advancement involved the carrying on an activity for profit.
The intention of Legislature was fully vindicated in the language employed ins.
2(15) of the Act.
|
t Petition (Civil) No. 13704 of 1983.
(Under Article 32 of the Constitution of India) P.N. Lekhi and M.K. Garg for the Petitioner.
Prithvi Raj, P.P. Rao, Govind Mukhoty, Satish Chander, Raju Ramachandran, Mrs. section Dikshit, A.K. Sangal, P.K. Chakraborty.
Ms. Sadhya Goswami and Y.C. Maheshwari for the Respondents.
K.R. Gupta, Smt.
Nanita Sharma, R.C. Gubrele, Vivek Sharma and O.P. Sharma for the Intervener.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Ram Sewak Prasad, the petitioner before us, was appointed as Excise Sub Inspector, in the State of Uttar Pradesh in February, 1964 and was promoted to the post of Excise Inspector on ad hoc basis on February 24, 1972.
He was confirmed as Excise Sub Inspector by an order dated December 2, 1972 with effect from April 1, 1967.
Though promoted on ad hoc basis the petitioner 887 has continuously been working as Excise Inspector since February 24, 1972.
Raghubir Singh and Ram Dhan, respondents are direct recruits to the post of Excise Inspector.
The joined as such on March 29, 1972 and May 14, 1972 respectively.
They were promoted to the post of Excise Superintendent by an order dated September 29, 1983.
It is not disputed that the petitioner was not considered for promotion alongwith the respondents or at any time thereafter.
Even his name was not shown in the seniority list of Excise Inspectors circulated from time to time.
The respondents, including the State Government, have taken the stand that the petitioner 's promotion to the post of Excise Inspector was against the rules, he continues to be an ad hoc appointee and is not a member of the Excise Inspectors Service constituted under the rules.
For that reason he is neither been shown in the seniority list of Excise Inspectors nor considered for promotion to the post of Excise Superintendent.
It is necessary to examine the relevant statutory rules regulating recruitment and conditions of service of the Excise Inspectors.
Rule 3(ix) and 5 of the Uttar Pradesh Subordinate Excise Service Rules, 1967 (hereinafter called `1967 rules ') are as under: "3(ix).
"Member of the service" means a person appointed in a substantive capacity under the provisions of these rules, or of rules in force previous to the enforcement of these rules to a post in the cadre of the service" . 5.
Sources of recruitment Recruitment to the service shall be made (a) by direct recruitment of candidates, on the result of a combined competitive examinations conducted by the Commission, who having been selected in the prescribed manner for undergoing practical training have completed the course of training and passed the departmental examination prescribed in rule 23: Provided that no candidate shall be allowed to avail of more than three chances for appearing at the competitive examination; (b) by promotion of permanent clerks of the office at 888 the Headquarters of the Excise Commissioner and other regional and Subordinate Excise Offices of Assistant Excise Commissioners and Superintendents of Excise in Uttar Pradesh; and (c) by promotion of permanent Tari Supervisors The 1967 rules were superseded by the Uttar Pradesh Subordinate Excise Service Rules, 1983 (hereinafter called 1983 rules) which came into force on March 24, 1983.
Rule 3(g), 3(j), 5 and 21(1) of the 1983 rules are reproduced hereinafter: "3(g).
"Member of Service" means a person substantively appointed under or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service". "3(j).
"Substantive appointment" means an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there are no rules, in accordance with the procedure prescribed for the time being by executive instructions, issued by the Government.
" Sources of Recruitment.
Recruitment to the various categories of posts in this service shall be made from the following sources: (A) EXCISE INSPECTOR (1) 90% by direct recruitment on the result of a combined competitive examination conducted by the Commission.
(2) 10% by promotion from amongst the permanent sub Excise Inspectors.
"Rule 21(1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointed order; 889 Provided that if the appointment order specifies a particular back date with the effect from which a person is substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case it will mean the date of issue of the order;" Mr. Satish Chandra, learned senior advocate, appearing for some of the respondents who are direct recruits of 1982/83 has contended that the 1967 rules were holding the field when the petitioner was promoted as Excise Inspector on ad hoc basis.
According to him only clerks and Tari Supervisors could be considered for promotion to the post of Excise Inspector under rule 5 of the 1967 rules and the Excise Sub Inspectors were not eligible.
The petitioner 's promotion being in violation of the 1967 rules, he was not a member of the service and as such was rightly not shown in the seniority list of Excise Inspectors.
He, however, accepts the position that the petitioner can be considered for promotion to the post of Excise Inspector under the 1983 rules and would become member of the service from the date of promotion under the said rules.
Mr. Satish Chandra finally contended that the appointment of the petitioner from 1972 to 1983 being violative of 1967 rules, the benefit of the said service cannot be given to the petitioner towards seniority in the cadre of Excise Inspectors.
In support of his arguments Mr. Satish Chandra relied upon the judgments of this Court in Masood Akhtar Khan and Others vs State of Madhya Pradesh and Others, and Direct recruits class II Engineering Officers Association vs State of Maharashtra and Others, [1990] 2S.C.C. 715.
Mr. Govind Mukhoty, Mr. P.P. Rao and Mr. O.P. Sharma, learned senior advocates appearing for various respondents reiterated, with different flavour, the arguments advanced by Mr. Satish Chandra.
They further cited P. Mahendran and Ors etc.
vs State of Karnataka and Ors. etc.
, ; State of Punjab vs Jagdip Singh and Ors., ; ; Krishena Kumar and Ors.
vs Union of India and Ors.
, ; and A.K. Bhatnagar and Ors.
vs Union of India and Ors.
, ; Mr. Prithviraj, learned senior advocate appearing for the State of Uttar Pradesh stated that it may be possible to absorb the petitioner in the cadre of Excise Inspectors from the date of enforcement of the 1983 rules but the benefit of service rendered by him as Excise Inspector prior to that date cannot be given to him.
Mr. P.N. Lekhi, learned senior advocate appearing for the petitioner vehemently argued that the petitioner was promoted in `public interest ' as Excise Inspector in the year 1972 and since then he 890 has been working as such continuously.
He is being paid the same salary for doing the same work as is being done by the directly recruited Excise Inspectors.
There can no justifiable reason to treat the petitioner as an ad hoc Excise Inspector even after working as such for almost two decades.
According to him the 1967 rules which confined the channel of promotion to Tari Inspectors and Clerks were wholly arbitrary and as such violative of Articles 14 and 16 of the Constitution of India.
The Excise Sub Inspectors are at a lower rung in the same hierarchy of service to which Excise Inspectors belong.
The Sub Inspectors perform similar duties of less responsibility.
Mr. Lekhi further contended that providing avenue of promotion to Tari Inspectors and Clerks who had no similarity or service0link with the cadre of Excise Inspectors and depriving the same to the Excise Sub Inspectors render the 1967 rules arbitrary and discriminatory.
He relied upon Baleshwar Dass and Ors.
vs State of U.P. and Ors., [1981] 1 SCR 449; Narender Chadha and Ors.
vs Union of India and Ors.
, ; ; Rajendera Parsad Dhasmane vs Union of India and Ors., ; and Kumari Shrilekha Vidyarthi etc.
vs State of U.P. and Ors., Mr. Lekhi finally submitted that the petitioner is, in any case, entitled to be promoted substantively to the cadre of Excise Inspectors under the 1983 rules and he is entitled to fixation of seniority by counting his entire service as Excisa Inspector from 1972 onwards.
It is not necessary to go into the judgments cited by the learned counsel for the parties.
The judgments are on the peculiar facts of these cases and do not render much assistance to resolve the controversy before us.
The 1967 rules provided recruitment to the cadre of Excise Inspectors by way of direct recruitment and by promotion.
Recruitment by promotion was only confined to permanent clerks in the office of Excise Commissioner and Tari Supervisors.
The Excise Sub Inspectors were not eligible.
On the plain interpretation of 1967 rules Mr. Satish Chandra is justified to contend that the petitioner was not eligible for promotion to the post of Excise Inspector and as such he could not be member of the Uttar Pradesh Subordinate Excise Service as constituted under the 1967 rules.
On the other hand there is plausibility in the argument of Mr. P.N. Lekhi that rule 5 of the 1967 rules which denies avenue of promotion to the Excise Sub Inspectors is arbitrary and discriminatory.
When the 1967 rules were enforced on May 24, 1967 there was in existence a permanent cadre of Excise Sub Inspectors.
The nature of duties of both the cadres 891 were similar.
The Excise Inspectors, on molasses duty of the ranges, used to supervise the work of Excise Sub Inspectors under them.
The Excise Sub Inspectors were thus natural contenders for the post of Inspectors.
There was no justification whatsoever with the framers of the 1967 rules to have kept the Excise Sub Inspectors out of the channel of promotion to the post of Excise Inspectors.
Prima facie there is no escape from the conclusion that the Excise Sub Inspectors were dealt with in an arbitrary manner by the framers of 1967 rules.
However, the view we propose to take on the interpretation of 1983 rules it is not necessary for us to deal with the respective arguments of the learned counsel for the parties regarding the 1967 rules.
Rule 5 of the 1983 rules provides recruitment to the cadre of Excise Inspectors from two sources, 90% by direct recruitment and 10% by promotion from amongst the permanent Excise Sub Inspectors.
It is not disputed that under the 1983 rules the petitioner is eligible to be promoted and appointed as Excise Inspector.
In the writ petition the petitioner has specifically pleaded that the service record of the petitioner is unblemished and he is holding the post of Excise Inspector within the 10% promotion quota provided for the permanent Excise Sub Inspectors.
The State Government in its counter has not denied these averments.
The 1983 rules came into force on March 24, 1983.
There is nothing on the record to show as to why the petitioner was not considered for promotion under the 1983 rules till today.
Inaction on the part of the State Government is wholly unjustified.
The petitioner has been made to suffer for no fault of his.
He has been serving the State Government as Excise Inspector since February 24, 1972 satisfactorily.
Least the State Government could do was to consider the petitioner under the 1983 rules.
Mr. Prithviraj, learned counsel for the State of Uttar Pradesh has however fairly stated that the State Government is willing to promote the petitioner to the cadre of Excise Inspectors under the 1983 rules effect from the date of enforcement of the said rules.
Rule 21(1) of the 1983 rules provides that the seniority of a person in any category of post shall be determined from the date of the order of substantive appointment.
First proviso provides that if the appointment order specifies a particular back date with effect from which a person is substantively appointed then the said back date shall be deemed to be the date of order of substantive appointment.
It is thus obvious that rule 21(1) of the 1983 rules specifically permits substantive appointment to the cadre of Excise Inspectors with back date.
The framers of the 1983 rules were conscious that the cadre of 892 Excise Sub Inspectors was in existence from 1964 onwards and some of them were promoted to the post of Excise Inspectors much earlier to the enforcement of the 1983 rules.
In all probability the provision of back date appointment was made in the 1983 rules to do justice to persons like the petitioner.
The petitioner is eligible under the rules to be appointed as Excise Inspector by way of promotion.
It is not disputed that the petitioner was appointed as Excise Inspector on February 24, 1972 and he has been actually working in the said post continuously from that date and has been drawing the salary of the post of Excise Inspector.
This is a fit case where the petitioner should be appointed as Excise Inspector under the 1983 rules by giving him back date appointment with effect from February 24, 1972.
We, therefore, hold that the petitioner shall be deemed to be appointed by way of promotion as substantive Excise Inspector under the 1983 rules with effect from February 24, 1972.
The petitioner shall be entitled to the benefit of his entire period of service as Excise Inspector from February 24, 1972 towards fixation of his seniority in the cadre of Excise Inspector.
We further direct that the petitioner shall be considered for promotion to the post of Excise Superintendent from a date earlier than the date when respondents Ram Dhan and Raghubir Singh were promoted to the said post.
The petitioner shall also be entitled to be considered to the post of Assistant Excise Commissioner in accordance with the rules from a date earlier than the date when any of his juniors were promoted to the said post.
We make it clear that none of the respondents who have already been promoted to the higher rank of Excise Superintendents or Assistant Excise Commissioners be reverted to accommodate the petitioner or any other person similarly situated.
The State Government shall create additional posts in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the petitioner and other similar persons, if necessary.
The writ petition is allowed with costs in the above terms.
We quantify the costs as Rs.10,000 to be paid by the State of Uttar Pradesh.
Y.Lal.
Petition allowed.
| The appellants were Taluqdars owning taluqdari villages in District Ahmedabad, State of Bombay.
In 1922 23 there was a revision settlement of land revenue and the aggregate sum of land revenue payable by each taluqdari estate was fixed.
In 1925 26, in exercise of the powers conferred by section 22 of the Gujrat Taluqdars Act, 1888 (Bom.
VI of 1888), the Government of Bombay ascertained and declared the jama payable by each taluq which was much less than the amount of land revenue and the said declaration was to remain in force for thirty years.
With the passing in 1949 of the Bombay Taluqdari Abolition Act, 1949, the taluqdari estates of the appellants were abolished and they became occupants of the lands and, after the expiry of the thirty years, were called upon to pay the full land revenue assessment in respect of the lands.
It was contended on behalf of the appellants that by reason of section II7R of the Bombay Land Revenue Code, i879, the declaration made by the Governor in council fixing the amount of jama for a period of thirty years would continue to be in force even after the expiry of that period till a revision settlement was made and the Government was precluded from demanding the higher amount of revenue till then.
Held, that the contention must fail.
The jama payable by the Taluqdars under section 22 Of the Gujrat Taluqdars Act, 1888, was distinct from the revenue assessment of land comprised in the taluqdari estate and they could not be equated.
The declaration under section 22 or the fixation of the jama under section 23(1) of the Act was in the nature of a settlement entered into between the Government on the one hand and the Taluqdar on the other but that was no settlement of land revenue within the meaning of section II7R of the Bombay Land Revenue Code, 1879.
As section 5(2) (b) of the Bombay Taluqdari Tenure Abolition Act, 1949, expressly saved the settlement made under section 23 and the 912 declaration under section 22 of the Gujrat Taluqdars Act, the appellants were liable to pay the entire land revenue after the expiry Of 30 years, i.e., from the year 1955 56.
|
Appeals Nos. 883, 915 to 967 and 1042 to 1044 of 1967.
Appeals from the judgment and order dated December 2, 5, 12 and 13, 1966 of the Gujarat High Court in Special Civil Applications Nos 1003, 1177, 1178, 1183, 1186, 1195, 1197 to 1202, 1205 to 1210, 1220 to 1222, 1244, 1275, 1374, 1377, 1380, 1387, 1389 of 1965, 68 to 70, 72 to 74, 76, 77, 80, 83, 84, 166, 183, 393, 399, 547, 554, 790 of 1966, 1187, 1188, 1233 of 1965, 75, 154, 202, 402, 403 of 1966, and 1179, 1184 and 1185 of 1965.
B. Sen, S.K. Dholakia and Vineet Kumar, for the appellant (in C.A. No. 883/1967).
S, K. Dholakia and Vineet Kumar, for the appellants (in C. As.
Nos. 915 to 967 and 1042 to 1044 of 1967).
S.V. Gupte, A.K. Kazi, O.P. Malhotra and S.P. Nayar, for the respondents (in C. As.
Nos. 883 and 915 to 967 of 1967).
A.K. Kazi, O.P. Malhotra and S.P. Nayar, for the respondents (in C. As.
1042 to 1044 of 1967).
The Judgment of the Court was delivered by Hidayatullah, J.
On March 10, 1965, the Government of Gujarat notified under section 4 of the Land Acquisition Act that certain lands were needed for a public purpose, namely, the construction of the capital of the State at Gandhinagar and that Government was satisfied that they were 'arable lands '.
Government further directed under section 17(4) of the Act that as the acquisition of the said lands was urgently necessary the provisions of section 5A of the Act shall not apply in respect of the lands.
A list of the lands was appended to the notification.
This notification was followed by another on JuLy 31, 1965 under section 6 of the ' Land Acquisition Act and it contained a direction under section 17 (1) of the Act, enabling the Collector, on the expiration of 15 days from the publication of the notice under section 9 (1) of the Act, to take possession of all arable lands specified in the earlier notification.
Both notifications were signed by L.P. Raval, Under Secretary to Government and were shown to be by order and in the name of the Governor of Gujarat.
Numerous petitions were filed in the High Court of Gujarat under article 226 of the Constitution by the owners of the lands Sup, C. I,/68 3 270 affected by the notifications to challenge the validity of the acquisition.
One such petition was numbered Petition No. 1003 of 1965 and it was typical of all the others.
The facts in all the petitions were the same, save the details of the lands, and as the contentions were also the same, the High Court pronounced a common judgment applicable to all, on December 2/5, 1966 and dismissed them.
The High Court, however, granted a certificate under article 133(1)(c) of the Constitution and the present appeals have been brought.
Civil Appeal No. 883 of 1967 arises from the Special Civil Application No. 1003/65 and the other appeals are in the other petitions.
This judgment will accordingly dispose of all the appeals.
Before we consider the arguments we may see the relevant provisions of the Land Acquisition Act.
The scheme of the Act, which entered into force almost seventy five years ago, is by now familiar to lawyers and courts and it is not necessary to refer in detail to it.
The High Court has painstakingly analysed the provisions already.
We shall refer in passing to what is material to the discussion, Acquisition of land under the Act originarily begins with a preliminary inquiry.
Government notifies first under section 4 that 'land in any locality is needed or is likely to be needed ' for a public purpose.
Public notices are also given.
This enables the officers of Government to enter upon lands to survey them and also enables persons interested to object to the acquisition generally and also particularly in accordance with the provisions of section 5A of the Act.
After the objections have been considered and Government has satisfied itself on the report or reports of the Collector that a particular land is needed, a second notification is issued under section 6 that a particular land is needed for the public purpose.
This declaration is conclusive evidence that the land is so needed and Government then proceeds to acquire the land.
The procedure is detailed in the sections that follow.
Under section 9 (1 ) the Collector causes public notices to be given that Government intends to take possession of the lands and that claim to compensation for all interests in lands shall be made to him.
Then commence proceedings for the fixation of compensation with the details of which procedure we are not presently concerned.
When these proceedings are completed the Collector makes his award about the true area, the compensation to be allowed and the apportionment of that compensation among persons known or believed to be interested.
When the Collector has made his award (which is made conclusive for certain purposes) section 16 enables him to take possession of the lands and the lands vest absolutely in Government free from all encumbrances.
The is provided in section 17.
Under this procedure Government in cases award.
There is a shorter procedure for cases of urgency and it is provided in section 17.
Under this procedure Government in cases 271 of urgency, is enabled inter alia to omit the application of section 5A and to notify the lands under section 6 at any time after the publication of the notification under section 4(1).
Under sub section
(1) of section 17, Government can direct the Collector, though no award has been made, to take possession of any waste or arable lands needed for the public purpose, on the expiration of fifteen days from the publication of the notice under section 9.
Under Sub s.(4) of the same section Government may direct that in the case of any land to which in its opinion the proviSiOns of the first sub section are applicable, the provisions of section 5A shall not apply and if it so directs a declaration may be made under section 6 in respect of that land at any time after the notification under section 4 (1) has been published.
It will therefore, be noticed that the shorter procedure has been followed here.
Before we refer to the grounds on which the action of Government is challenged we may read sections 4(1) 6(1) omitting the proviso, and s.17.
Although we are principally concerned with the first and fourth sub section of the last section we shall be required to refer to the remaining sub sections, and we shall read the section as a whole: "4(1) Whenever it appears to appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
6(1) Subject to the provisions of Part V/I of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A, sub section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub section ' ( 1 ), irrespective of whether one report or different reports has or have been made (whenever required) under section 5A, sub section (2).
17(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1), 272 take possession of any waste Or arable land needed for public purposes or for a Company.
Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side or that station, or of providing convenient connection with or access to any such station, the Collector may, immediately after the publication of the notice mentioned in sub section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub section without giving to the occupier thereof at least forty eight hours ' notice of his intention so to do or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding sub sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case s uch offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub section (1) or sub section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at 273 any time after the publication of the notification under section 4, sub section (1) In the High Court sub sections
(1 ) and (4) of section 17 of the Act were assailed under articles 14 and 19(1)(f) of the Constitution.
This argument was placed at the forefront.
In this Court this submission was relegated to the end.
Apparently not much faith was reposed in its potency.
The other arguments urged before the High Court and found against the appellants, were pressed with vigour upon us.
These arguments concern the issue of notifications invoking the shorter procedure and those notifications are questioned.
These arguments involve the validity of the notifications as (a) unauthorised by Government, (b) without formation of the necessary opinion on relevant matters, and (c) on erroneous assumption of facts.
The first ground, when amplified, is that D.P. Raval, Under Secretary, who signed the notifications under section 6 was not duly authorised to do so under the Act and the notifications were, therefore, invalid and of no effect.
The second ground is based on the assertion that there was no formation of opinion by the Government as regards urgency or that the lands were arable, and on both the points the Act requires Government to reach a decision, which fact has not been established if not disproved.
The third ground proceeds on the meaning of the expression 'arable land ' which, it is claimed, denotes land capable of cultivation or village but not land already under the plough.
We shall now proceed to consider each point in turn.
Raval 's authority to issue the notification under section 6 is questioned on the wording of the latter portion of that section where it is mentioned that "the declaration shah be made under the signature of a Secretary to such Government or some officer duly authorised to certify its orders.
" The argument is without substance The word 'Secretary ' is not defined either in the Land Acquisition Act or the General Clauses Act so as to exclude Additional, Joint, Deputy, Under or Assistant Secretaries.
If this were established, then it might be said that the word was intended to designate only the head of the secretarial department concerned with land acquisition.
No such indication is available from any source.
Nor was it necessary to invest any particular Secretary specially under the Act for no such requirement can be spelled out from the words relied upon.
On the other hand, the business of Government is regulated by the Rules of Business made under article 166 of the Constitution.
How those Rules operate will be more fully considered presently when we deal with the second point.
For the present it is sufficient to point out a few provisions of the Rules, Rule 7 provides: "7.
Each Department of the Secretariat shall consist of the Secretary to the Government, who shall be the 274 official head of that Department and of such other officers and servants subordinate to him as the State Government may determine : Provided that (a) more than one Department may be placed in charge of the same Secretary; (b) the work of a Department may be divided between two or more Secretaries.
" If this Rule stood by itself, it might have been necessary to place on record evidence to establish that the work of this Department was divided among the Secretaries and how, but Rules 13 and 15 additionally provide: "13.Every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a joint Secretary, a Deputy Secretary, an Under Secretary or an AssiStant Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument." "15.These rules may to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister," Rule 13 specifically places all Secretaries on equality for authentication of orders and instruments of Government and Rule 15 further authorises supplemental instructions which as we shall presently see were in fact issued.
Thus Raval was competent to sign the declaration as a Secretary.
It is not necessary to consider whether he can be treated as an officer 'duly authorised ' because he already had authority by virtue of his office and rule 13 of the Rules of Business contemplates officers other than Secretaries.
But if he did not possess the power as a Secretary he would undoubtedly have been competent as an officer duly authorised by virtue of rule 13 of the Rules of Business and that is all that section 6 requires.
No further special authorisation under the Act was necessary.
To overcome these rather obvious difficulties Mr. B. Sen raised the second point which was that the provisions of the Act require Government to form an opinion and this function cannot be delegated to the Secretaries and even if it could be delegated, strict compliance with Rules of Business and the instructions issued under Rule 15 was necessary.
He submits that there was no formation of the necessary opinion in the case before action under section 17(1) or (4) was taken.
To understand this argument 275 provision on the subject.
To begin with Art.166 of the Constitution provides.
Conduct of business of the Government of a State.
(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
" It is obvious that the executive action of the Government was in fact expressed to be taken in the name of the Governor, and that the orders were authenticated in the manner required by rule 13 of the Rules of Business already quoted.
The validity of the order could not, of course, be called in question that it was not an order made by the Governor.
Had the Government sheltered itself behind the constitutional curtain, it is a little doubtful the appellants could have successfully pierced this barrier by merely stating that the Government had not passed the orders or made the necessary determination without alleging definite facts.
In addition to the constitutional provision there is also the presumption of regularity of official acts.
Orders of Government, whether at ministerial or gubernatorial level, are all issued in the same form and the constitutional protection as well as the presumption both cover the case.
But, as it happens frequently, Government tried to establish that everything was regular.
A batch of counter affidavits was filed on behalf of Government to show how the matter was dealt with from stage to stage and the appellant filed affidavits in rejoinder and were not slow to point out infractions or supposed infractions.
As they sought to do this on facts furnished by the 276 affidavits on behalf of Government we may say a word about those affidavits.
No less than eight affidavits were filed by Government and five affidavits including one supporting the petition were filed by the petitioner in Special Civil Application No. 1003 of 1965.
Other affidavits on behalf of the other petitioners repeated the allegations.
The affidavits filed with the petitions had averted only that Government had not 'made up its mind regarding acquired lands ', that the satisfaction was 'mala fide ' and 'colourable ' and that the gap of time between the two notifications itself showed that there was no urgency.
The affidavits also raised the issue that the lands were not 'arable lands '.
Government apparently took up the challenge and flied affidavit after affidavit.
The first affidavit was filed by L. P. Raval, Under Secretary (Oct. l, 1965) that the lands were arable lands ' and Government had formed the opinion about urgency, and further that the determination of these two matters by Government was not justiciable.
This was followed by an affidavit by the Executive Engineer (Oct. 8, 1965) who stated that the master plan was ready which involved 12 villages including Pethapur where these lands are situated.
The lands were involved in the construction of main roads and the laying out of sectors.
He explained the delay between the two notices on the ground that survey had to be done and that took time but reaffirmed that the matter was urgent.
The appellants promptly questioned the formation of opinion by alleging 'that Government had not formed the opinion and that the affidavit of Raval did not establish this.
In reply another Under Secretary (Nimbalkar) filed an affidavit (Nov. 8 1965) that Jayaraman, Deputy Secretary was 'subjectively satisfied ' that the lands were 'arable lands ' and that there was urgency and asserted that both matters were for the subjective determination of Government and thus not open to question in a court of law.
This was followed by another affidavit in rejoinder from the appellants (November 24, 1965) 'that Jayaraman had not personally filed any affidavit and therefore it was not clear who had made the subjective determination regarding the matters disputed and the public purpose.
Raval 'then swore another affidaVit (August, 1966) giving details of the urgency and stated that he had considered the need for issuing the notification under section 4 and that 'it was decided ' to apply section 17(4).
He also stated that the notification under section 6 and the application of section 17(1 ) was considered first by him and then by Jayaraman and they had agreed to issue the notification and apply section 17(1).
Another affidavit ill rejoinder was filed during the hearing (December 2, 1966) that neither Raval nor Jayaraman had stated that they had satisfied themselves about section 17(4) nor had Raval or Jayaraman stated that they were authorised by the State Government 277 or by the Rules of Business or by any special order to form the said opinion.
A number of affidavits were then fled.
The Minister in Charge filed an affidavit in which he said: ". .for the purpose of urgently acquiring the lands for the Capital Project, I had given instructions initially to Shri S.M. Dudam and subsequently to Shri A.S. Gill after he became the Secretary of the Revenue Department, and had made arrangements with them, during their respective tenures as Secretaries of the Revenue Department, to take necessary action for urgent acquisition of lands for the Capital Project and had also instructed them that they or the concerned Deputy Secretaries or Under Secretaries in the Revenue Department may, without bringing the cases to my personal notice and without referring such cases to me, issue notifications under sections 4 and 6 o/the Land Acquisition Act and may apply urgency clause under section 17(1) and (4) of the said Act as the case may be wherever it was possible to invoke the urgency clause according to law." S.M. Dudani who was Secretary 'till April 2, 1965 and A.S. Gill who followed him swore two affidavits.
Their purport was almost the same A.S. Gill said: ". .Shri
Utsavbhai section Parikh, the Hon 'ble Minister for the Revenue Department for the purpose acquiring lands urgently for the Capital Project had given instructions to me and had made arrangements with me to take necessary action for urgent acquisition of lands for the Capital Project and had also instructed me that myself or the concerned Deputy Secretaries or the Under Secretaries in the Revenue Department may, without bringing the cases to his personal notice and without referring such cases to him, issue notifications under sections 4 and 6 of the said Act and may apply urgency clause under sections 17(1) and (4) of the said Act, as the case may be, wherever it was possible to invoke the urgency clause according to law.
I had given instruction to the concerned Deputy secretaries and the under Secretaries of the Revenue Department to take necessary actions under sections 4 and 6 of the said Act and to apply the urgency clause wherever it was possible according to law.
" The appellants then filed a last affidavit in rejoinder denying the power of the Minister to delegate by oral instructions his own 278 power to the Secretary and questioned the sub delegation to the Deputy and Under Secretaries.
It would thus appear that the controversy got enlarged as time passed and Government undertook more and more burden although there was hardly any attempt by the appellants to support their assertions by mentioning any facts.
The High Court noticed in its judgment that there was really nothing in the original affidavit supporting the petition which Government need have answered and yet it allowed affidavits to be filed during the hearing and even in the midst of the pronouncement of the judgment.
Each affidavit on the side of Government itself enabled the appellants to enlarge their allegations and to take up new stands.
This unusual course appears to have been permitted from a desire to be just and fair but was hardly proper and the High Court ought really to have stemmed the flow of affidavits, keeping the appellants to their burden and the Government to its burden, if any.
The Government also did not leave the appellants to their burden which would have been heavy in view of the presumption and the provisions of article 166(2) already mentioned.
The High Court having before it allegations, counter allegations and denials dealt first with the legal side of the matter.
Then it readily accepted the affidavits on the side of Government.
If it had reversed its approach it need not have embarked upon (what was perhaps unnecessary) an analysis of the many principles on which onus is distributed between rival parties and the tests on which subjective opinion as distinguished from an opinion aS to the existence of a fact, is held open to review in a court of law.
As stated already there is a strong presumption of regularity of official acts and added thereto is the prohibition contained in article 166(2).
Government was not called upon to answer the kind of affidavit which was filed with the petition because bare denial that Government had not formed an opinion could not raise an issue.
Even if Government under advice offered to disclose how the matter was dealt with, the issue did not change and it was only this.
Whether any one at all formed an opinion and if he did whether he had the necessary authority to do so.
The High Court having accepted the affidavits that Raval and Jayaraman had formed the necessary opinion was only required to see if they had the competence.
The High Court after dealing with many matters held that they had.
Mr. B. Sen has, therefore, very rightly confined himself to this aspect of the case.
and has questioned the competence of Raval and Jayaraman to act for the Government.
His contention is that the procedure followed by the Minister in Charge offended the Rules of Business and therefore the necessary satis 279 faction or the opinion of Government was wanting in the case.
In support he has relied upon Emperor vs Shibnath Banerji(1).
Mr. Sen 's argument proceeds like this: Under the Rules of Business (Rule 4) the business of Government is to be transacted in the Department specified in the First Schedule and item No. 15 covers the topic of acquisition of property and the principles on which compensation is to be determined and it is assigned to the Revenue Department.
Each Department of the Secretariat consists of a Secretary to the Government (Rule 7) but the work may be divided between two or more Secretaries.
The Minister in Charge is primarily responsible for the disposal of the business appertaining to the Department (Rule 10).
Therefore only 'the Minister for Revenue could decide questions.
Referring to the oral instructions said to have been given by the Minister, Mr. Sen refers to the instructions issued by the Governor under Rule 15 and draws attention to paragraph 3 of the instructions which reads: "3.
Except as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority of the Minister in Charge, who may by means of standing orders, give such directions as he thinks fit for the disposal of cases in the Department.
Copies of such standin g orders shall be sent to the Governor and the Chief Minister.
" He contends that a general instruction of the type mentioned by the Minister in his affidavit could only be given as a standing order of which a copy had to be sent to the Governor and the Chief Minister and, therefore, the oral instructions had no validity in law.
He submits in the alternative that at least an order in writing ought to have been passed.
Mr. S.V. Gupta in reply contends that this overlooks the opening words of Rule 10 which are "without prejudice to the provisions of rule 7," indicating that the business of land acquisition is to be transacted in the Revenue Department (Rule 4) by the Secretary to the Department (Rule 7 read with Rule 10) although the Minister is primarily responsible for the disposal of the business.
He then draws attention to the provisions of Rule 13 where a Secretary is equated to Additional, Joint, Deputy, Under and Assistant Secretaries for certain purposes and the definition of Secretary in paragraph (1 )(vii) which includes these other functionaries for 'the purpose of the Instructions.
Mr. Gupte next reads with paragraph 3 the provisions of paragraphs 4 and 5 which provide: (1) L.R. 72 I.A. 241.
280 "4.
Each Minister shall arrange with the Secretary of the Department what matters or classes of matters are to be brought to his personal notice." "5.Except as otherwise provided in these Instructions cases shall be submitted by the Secretary in the Department to which the case belongs to the Minister in charge." Mr. Gupta contends that there is nothing in the Rules or Instructions that oral instructions, if clearly issued, cannot confer on the Secretaries the power to make determinations and submits that Standing Orders refer to all cases generally and oral instructions ,can be issued in certain particular contingencies and this was done as stated in the affidavits of the Minister, A.S. Gill and S.M. Dudani which have been accepted.
He contends that there is no sub delegation because Rule 7(b) covers this case.
In our judgment the argument of Mr. Gupte is valid.
There is nothing in the Rules or Instructions which prescribes that the authority must be in writing or by Standing Orders.
Standing 'Orders are necessary for the disposal of cases in the Department (paragraph 3) and this applies to cases generally.
Paragraph 4, on the other hand, refers to "matters or classes of matters" and that is not a "case" but a "matter" in a case.
The definition of case in the Instructions is: "Case includes the papers under consideration and all previous papers and notes put in connection therewith to enable the question raised to be disposed of", but this definition is excluded by the context.
Although the case belongs to a Department [paragraph 2(i)],the word case in paragraph 3 obviously refers to the disposal of cases and not to matters arising in a case regarding which the Minister may arrange with the Secretary whether they are to be brought to his personal notice or not.
The matters here were application of section 17(1) and (4) to the acquisition of waste and arable lands and the Minister could leave this matter to his Secretaries as he did.
For this purpose Standing Orders were not only not necessary but would be inappropriate.
Reliance was placed upon the decision of the Orissa High Court in Shayamaghana Ray vs State(1) that Rules 15 must prevail over the instructions.
But 'that Rule itself provides that the Rule may be supplemented by instructions and the power so conferred was available in paragraph 4 to provide that the 'Minister may arrange with the Secretary of his Department what ,(1) A.I.R. 1952 Orissa 230.
281 matters or classes of matters are to be brought to Iris personal notice.
This dispenses with the taking of orders of the Minister each time.
Sen then refers to the words of ss.4, 6 and 17(1) and (4) which are different.
In s.4 the words are whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed ' while in s.6 the words are 'when the appropriate Government is satisfied ' and in section 17(4) the words are 'in the opinion of the appropriate Government '.
He contends that some difference must be made between them and when sub sections
(1 ) and (4) of s.17 require, a direction from the appropriate Government the determination must be by the Minister himself.
If the sections stood by themselves this argument would be unanswerable but we have the Rules of Business which specifically allow conferral of powers on Secretaries and the determination of the Secretary becomes the determination of Government.
Sen 's reference to Emperor vs
Shibnath Banerji 's case(1) is not apposite because the circumstances there were different.
That case arose from petitions under section 491 of the Code of Criminal Procedure seeking directions in the nature of habeas corpus on behalf of certain pensons detained in pursuance of orders made under Rule 26 of the Defence of India Rules 1939.
It appears that detentions were dealt with in Bengal in the Home Department and the Home Minister Bengal, in the Bengal Legislative Assembly in answer to interpellations, slated that he had directed that on receipt of the report of arrest under Rule 129 (Defence of India Rules 1939) together with a recommendation by the police for detention under Rule 26, orders of detention under Rule 26(1) (b) should at once be issued as a matter of course subject to review by Government on receipt of further details.
As Lord Thankerton pointed out tthat clearly meant the substitution of the recommendation by the police in place of the recommendation of the Governor prescribed by Rule 26 and equally rendered any order under r. 26 in conformity with the Home Minister direction, to which their Lordships referred as the routine order, ab initio void and invalid as not being in conformity with the requirements of r. 26.
Further Mr. Porter, the Additional Home Secretary, in an affidavit regarding Shibnath Banerji stated: "10.
Shibnath Banerji: He was arrested by the Police under r. 129, Defence of India Rules on 20th October 1942.
On 27th October 1942, I considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under r.26(1)(b) Defence of India Rules.
On receipt of fuller materials the case was later submitted for consideration of the Honourable 282 Home Minister, Bengal, from whom no order directing withdrawal or modification of the order of detention was received." "Their Lordships are unable to read Mr. Porter 's state ment that he had considered the materials before him as involving anything more than he has considered the report of the arrest and the recommendation of the police to see if there was material sufficient to justify the issue of an rder under the routine order.
It cannot mean that, in spite of the direction of the Home Minister in the routine order, he considered the materials before so as to satisfy himself, independently of the police recommendation that an order under r.26 should be issued.
That would not be in accordance with the requirement of the routine order that the police having recommended it the order of detention should be issued as a matter of course.
The position in the present case is different.
If Mr. Porter had sworn the affidavit that he had considered the need for detention, quite apart from the routine order, the result might have been different because of the orders being in the name of the Governor and by his order.
In any case Mr. Porter admitted that he had not considered the matter.
In our case the Secretaries concerned were given the jurisdiction to take action on behalf of Government and satisfied themselves about the need for acquisition under section 6, the urgency of the matter and the existence of waste and arable lands for the application of sub sections
(1) and (4) of section 17.
In view of the Rules of Business and the Instructions their determination became the determination of Government and no exception could be taken.
Of course, if Government had relied upon the provisions of article 166(2) and the presumption of regularity of official acts, all this enquiry would have become unnecessary since the appellants had not originally pleaded any fact.s leading to any enquiry.
However, on a review of the affidavits the provisions of the Act and the Business Rules and instructions we are satisfied that the directions under sub sections
(1) and (4) of section 17 were not invalid.
This brings us to the contention that since the lands in question were under cultivation, they did not constitute 'waste or arable lands ' because by arable land is meant land capable of being ploughed or fit for village and not land actually Cultivated.
The High Court has rejected this contention disagreeing with a decision of the Bombay High Court reported in Sadruddin Sideman vs 283 J.H. Patwardhan(1).
Mr. Sen has adopted the judgment of the Bombay High.
Court as part of his argument.
Mr. Gupte in his reply has ruled upon Guntur Ramalakhsmana and Others vs Government of Andhra.
Pradesh and another(2), Baldeo Singh and others vs State of Uttar Pradesh and others(3) and Smt.
Lakshmi Devi & others vs The State of Bihar and others(4) and the reasons given in the judgment under appeal.
We shall first deal with the three rulings from Andhra Pradesh, Allahabad and Patna High Courts.
The first contains no discussion and may not be referred to here.
In the case from Allahabad reference is made to section 17 ( 3 ) of the Act (already quoted) in which there is a provision that standing crops must be compensated for and it is inferred that by 'arable lands ' must be meant not only land fit for cultivation but also land actually under cultivation.
In the case from Patna reference is made to Halsbury 's Laws of England (II Edn.) Vol.
14 p. 633 paragraph 1187, where arable land is shown as including untilled land.
In the case from Bombay relied upon by Mr. Sen three different reasons were given.
First several dictionaries were referred to and reliance was placed upon the Oxford Dictionary in preference to Webster 's particularly because the Oxford Dictionary did not mention land under actual cultivation as one of the meanings although Webster 's Dictionary did.
The learned Judges next referred to the etymology of the word 'arable ' and finally to the dicta of Judges in Palmer vs McCormick(5) and 'Simmons vs Norton(6).
Support was then found for the view in section 17(3) of the Act, the mention of compensation for standing crops notwithstanding.
There is no definition of the word 'arable ' in the original Land Acquisition Act.
A local amendment includes garden lands in the expression.
Now lands are of different kinds: there is waste land desert land, pasture land, meadow land, grass land wood land, marshy land, hilly land, etc.
and arable land.
The Oxford Dictionary gives the meaning of 'arable ' as.
capable of being ploughed; fit for village; opposed to pasture land or wood land and gives the root as arablis in Latin.
The learned Judges have unfortunately not given sufficient attention to the kinds of land and the contrast mentioned with the meaning.
Waste land comes from the Latin vastitas or vastus (empty, desolate, without trees or grass or buildings).
It was always usual to contrast vastus with incultus (uncultivated) as in the phrase 'to lay waste ' (agrivastate).
A meadow or pasture land is pratum and arable is arvum and Cicero spoke 'of prata et arva (meadow and arable (1) A.I.R. 1965 Bom.
(2) A.I.R. 1967 A.P. 280.
(3) A.I.R. 1965 All.
(4) A.I.R. 1965 Pat.
(5) [1890] 25 Ir.
Rep.110.
(6)[1831] ; E.R. 249.
284 lands).
Grass land is not meadow or pasture land and in Latin is known as campus as for example the well known Campus Marflus at Rome, where the comitia (assembly of the Roman people ) used to meet.
Woodlands is silvae, nemora or saltus.
We have given these roots became a great deal depends on the distinctions thus visible in understanding the judicial decisions of English and Irish Courts.
Lands described in different combinations of words such as waste and arable or arable and pasture or pasture and woodland emphasise different aspects of land.
In many cases the change from one kind of use to another was held to be waste.
It is in this sense that Coke on Littleton 53b (quoted in Oxford Dictionary) said that the conversion of meadow into arable or arable into wood is waste but 2 Roll.
815 said that 'if meadows be sometimes arable, and sometimes meadow, and sometimes pasture, then the ploughing of them is not waste. ' In Lord Darey vs Askwith (Heb. 234) it is laid down as "generally true that the lessee hath no power to change the nature of the thing demised: he cannot turn meadow into arable, nor stub a wood to make it pasture, nor dry up an ancient pool or piscary, nor suffer ground to be surrounded, nor decay the pale of a park "It was thus in Simons vs Norton(1) which was an action of waste for ploughing ancient meadow that Tindal C.J. made the observations which are relied upon in the Bombay case.
He observed: "It is clearly established by several authorities, that ploughing meadow land is waste. .In grants,land often passes specifically, as meadow, pasture, arable, or by other descriptions.
Ploughing meadowland is also esteemed waste on another account; namely, that in ancient meadow, years, perhaps ages, must elapse before the sod can be restored to the state in which it was before ploughing.
The law, therefore, considers the conversion of pasture into arable as prima facie injurious to the landlord on those two grounds at least.
" Similarly, the observations of Chatterton V.C. in Palmer vs McCormick(2) and of Fitzgibbon J. in the same case cannot lead to any conclusion that 'arable land ' means only land capable of cultivation and not land actually cultivated.
Tiffs was also a case of ' alleged waste.
Chatterton V.C. observed: "arable ' does not mean land actually ploughed up or in tillage but land capable or fit to be so: for ought I know this land, though properly designated arable in 1821, may even then have been in process of acquiring (1) (2) 1890 25 Ir.
Rep, 110.
285 the character of ancient pasture, which process have commenced, and been going on for sometime." Mr. Justice Fitzgibbon observed that because the laud was not .in grass for 20 years the defendant could treat it as arable. 'that is.
cultivable by him.
The contrast between grass land and arable is thus established but it does not rule out that arable land does not include land actually cultivated.
As a matter of fact the passage from Chatterton V.C. is correctly understood in Stroude 's not only land actually ploughed upon in tillage but also I and capable or fit to be so.
In tiffs connects it is useful to see that in the Agricultural Holdings Act, 1923 (13 and 14 Geo. 5 c.9) 'arable land ' is defined as not including land in grass, and in the second schedule to the Agriculture Act, 1947 (10 and 11 Geo.
6 c. 48) special direction may be given by the Minister requiring the ploughing up of any land consisting of permanent pasture, and the land is deemed 'to be arable land and to have been arable land at all material times.
It is thus clear that by arable land is meant not only laud capable of cultivation but also actually cultivated.
It is not arable not because it is cultivated demonstrates its nature as arable land.
All this discussion by us was necessary to dispel the inferences drawn from dictionaries and repons of cases from England and Ireland, but 'the safest guide, as always, is the statute itself which is being considered.
In this connection we may first turn to the Land Acquisition Act of stood: "17.
Power to take possession in cases of urgency.
In cases of urgency, whenever the Local Government so directs.
the Collector (though no such reference has been directed or award made) may, on the expiration of fifteen days from the publication of the notice mentioned in the first paragraph of section nine, take possession of any waste or arable land needed for public purposes or for a Company.
Such land shall thereupon vest absolutely in the Government free from all encumbrances.
The Collector shall offer to the persons interested compensation for the standing crops and trees (if any) on such land; and in case such offer is not accepted, the, value of such crops and trees shall be allowed for in awarding compensation for the land under the provisions herein contained.
" LISup.
CI./68 4 286 It will be noticed that compensation was then payable for standing crops and trees (if any).
There can be no question of crops on waste land for the crops can only be on arable lands became if crops could grow or were actually grown the land would hardly be waste.
The words in parenthesis obviously indicate that land may have crops or be fallow and compensation was payable crops if there were crops.
Turning now to the section as it is today it will be noticed that the first sub section corresponds to the first and second paragraphs of section 17 of the Act of 1870 taken together.
The third paragraph of the former Act corresponds to the third sub section of 'the present.
The difference in language in the third sub section necessary because the provisions of sub section (3) are now intended to apply also to the second sub section of the present Act 'which is new.
Hence the opening words 'in every case under either of the preceding sub sections ' which means all cases arising either under sub section
(1) or sub section
The words in parenthes is (if any) in relation to the first sub section continue to have the same force and no other, as they had previously.
The learned Judges of the High Court of Bombay did not give sufficient consideration to the fact that the opening words "in every case under either of the preceding sub sections" do not play and more part than to indicate that what follows applies equally to cases under sub s.(1) and sub section
They ought to have read the words that follow the opening words in relation to sub section
(1) and if they had so read them, there would have been no difficulty in seeing the force of the words in parenthesis (if any) or why crops are mentioned when the words of the sub section are waste and arable.
The quotation from Roger 's Agriculture and Prices quoted in the Oxford Dictionary "half the arable estate, as a rule, lay in fallow",gives a clue to the meaning of the words 'if any '.
In our judgment, therefore, the conclusion of the Bombay High Court was erroneous and the judgment under appeal is right on this point.
Finally there remains the question of the constitutionality of sub sections
(1) and (4) of section 17.
On this point very little was said and it is sufficient to say that the High Court judgment under appeal adequately answers all objections.
In the result the appeals fail and are dismissed.
We, however,think that this is a proper case in which there should be no order about costs and direct accordingly.
V.P.S. Appeals dismissed.
| Certain land which was evacuee property acquired by the Central Government under the Displaced Persons Act, 1954 and under the management of the Managing Officer, was purchased by A at a public auction on January 2, 1961.
Pro visional delivery of the property was given to the vendee on October 10, 1961.
A sale certificate was issued to him on February 8, 1962, and the actual delivery was given on June 22, 1962, on a warrant issued by the Managing Officer.
On July 1, 1962, when A, accompanied by a party, went to the land with a tractor to level the land, the appellants attacked the complainant 's party and caused injuries to some of them.
Upon their subsequent prosecution, the plea taken on their behalf was one of private defence.
Their case was that their relation J was the tenant in the land for over 30 years and his tenancy was never terminated; there was no delivery on June 22, 1962, and the alleged delivery was without the authority of law and of no effect; J therefore continued to be in possession of the property on July 1, 1962.
The appellants had therefore used minimum force to prevent the cormplainant 's party from taking forcible possession of the land.
The Courts below accepted the prosecution version and convicted the appellants under sections 447 and 324 read with 149 and 148 IPC.
On appeal to this Court, HELD : Allowing the appeal : On the basis of the proved facts it could not be said that the appellants had exceeded their right of private defence.
[465 A] It was not disputed that J was in possession of the field on June 22, 1962 and the record established that he continued to be the tenant of the land even after the sale in favour of A.
After the issue of the sale certificate to A, the Government had no interest in the land and the managing officer was not therefore competent to evict J. He bad no interest in the land on June 22, 1962 and could not have issued any warrant for the delivery of the field on that date.
The alleged delivery therefore had no legal force; in the eye of the law it was non est.
[461 B] There was no force in the contention that the delivery in question was effected under section 19(3) of the Displaced Persons Act, 1954.
The provisions of that Section apply only to properties which are under the control of the managing officers or managing corporations and not to properties which have ceased to be evacuee properties.
Furthermore, it was not 456 shown that any action under sub sections (1) and (2) of section 19, which was a condition precedent for taking action under sub section (3), had been taken against J. [460 H] 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.
A who had become the owner of the land long before June 22, 1962 could not have evicted J from the land in the manner alleged.
(459 E] Lallu Yeshwant Singh vs Rao Jagdish Singh and others; , It could not be said that as A had, rightly or wrongly, taken on of the property on June 22, 1962, J should have agitated the matter in a court of law and the appellants had no right to take the law in their own hands.
The fact that some formalities were gone through in pursuance of an unauthorised delivery order was no ground for holding that possession of the field had passed to A.
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. [462 B E] From the proved facts, it was evident that A and his party, of whom one was armed, had gone to the field with a view to intimidate J and to assert their possession.
They were therefore guilty of criminal trespass and also constituted an unlawful assembly.
The appellants were therefore entitled to prevent hem, by using necessary force, from taking possession.
[462 HI In re Jogali Bhaigo Naiks and Anr.
AIR 1927 Mad.
97, Jai Dev vs State of Punjab, ; Horam and others vs Rex, ; Sangappa and Ors.
vs State, ILR ; in re Mooka Nadar, AIR, 1943 Mad. 590, relied upon.
|
Appeal No. 1698 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 8 4 1971 of the Kerala High Court in T.R.C. No. 46/69).
S.T. Desai, A.G. Meneses, Markos Vellapilly and K.J. John, for the Appellant.
K.T. Harindra Nath and K.M.K. Nair for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave against the judgment of the Kerala Hight Court dismissing revision petition of the petitioner against the order in appeal of the Appellate Tribunal whereby the Tribunal refused to include certain items in the sales tax registration certifi cate of the appellant.
The appellant, Travancore Tea Estates Co. Ltd., is a company incorporated in England having its registered office in London.
The appellant carries on the business of tea planting in India at Vandiperiyar in Peermade Taluk in Kerala State.
Eight tea estates are owned by the appel lant in Peermade Taluk.
To manufacture tea grown in those estates, the appellant maintains separate tea facto ries in each of those estates.
On an application made by the appellant for registration under.
the (Act 74 of 1956) (hereinafter referred to as the Act), the sales tax authorities granted registration certif icate to the appellant on January 9, 1963.
Aggrieved by the non inclusion of certain items of goods in the registration certificate the appellant filed writ petition in the Kerala High Court.
The High Court directed the Sales Tax Officer to decide the question regarding the inclusion of items in the light of the decisions of this Court in 1.
K. Cotton Spinning & Weaving Mill3 ' Co. Ltd. vs 757 The Sales Tax Officer (1) and Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes.(2) The Sales Tax Officer thereafter allowed the inclusion of some of the items of goods asked for by the appellant in the registra tion certificate but refused to include certain other goods in that certificate.
The appellant thereupon preferred appeal before` the Appellate Assistant Commissioner of Sales Tax, Kottayam, who partly allowed the appeal by di recting further inclusion of certain items.
The Appellate Assistant Commissioner however, declined to include the following items in the certificate in respect of which prayer had been made by the appellant: "1.
Fertilisers, chemicals, weedicides, insecti cides, fungicides and pesticides for use in tea cultivaton: 2. Cement and other building materials for installing and housing tea machinery and equip ments: 3.
Building materials, iron and hose pipes, sanitary fittings for use in estates and estate factories , ' 4.
Weighing and measuring and packing equipments for use in tea estates; and 5.
All other articles and things for use in manufacture and processing of sale of tea.
" The appellant then took the matter in further appeal before the Appellate Tribunal and prayed for the inclusion in the certificate of the above mentioned items.
The Appellate Tribunal did not accept the prayer of the appellant and dismissed the appeal.
Revision petition was thereupon filed by the appellant before the Kerala High Court against the order of the Tribunal.
In appeal before the High Court it was stated on behalf of the appellant in respect of the first item relating to fertilisers, chemicals, weedicides and insecticides, that they were used for cultivation of tea leaves.
The conten tion of the appellant was that the growing and manufacturing of tea constituted one integrated process and therefore the items of goods required for growing tea should be deemed to be goods intended for use in the manufacture of tea within the meaning of section 8(3)(b) of the Act.
This contention had also been advanced by the appellant earlier before the Tribunal but the Tribunal rejected this contention as in its view "the legislature has not included production by agriculture as one of the operations for which goods can be purchased under section 8 of the ".
The Tribunal further held that merely because the agricultural, process of the company is connected with the process of manufacture, production of tea did not form part of the manufacture and processing of tea.
The High Court disa greed with this reasoning of the Tribunal and observed that the expression "in the manufacture of goods" in section 8(3) (b) of the Act normally encompasses the entire process carried on by the dealer of converting the raw material into finished goods.
In the opinion of the High Court, the growing of tea leaves (1) 16 S.T.C. 563.
(2) 16 S.T.C. 259.
758 was so integrally connected with the manufacture of tea that it could reasonably be taken as a part of the process of manufacturing tea.
This circumstance, however, in the opin ion of the High Court, by itself was not sufficient to make the goods eligible for inclusion in the registration certif icate.
The High Court accordingly observed: "Under rule 13 read with section 8(3) (b) the use of the goods in the manufacture or processing of goods for sale will not be a sufficient ground for inclusion in the certificate.
The further requirement is that the goods must be for use as raw materials or processing materials or machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants.
The first item, namely, fertilisers, chemicals, insecticides, etc.
in our opinion cannot fall within the category of a raw material or processing material or machinery etc.
The learned counsel for the company sought to contend that fertilisers, chemicals etc.
would come within file category of stores mentioned in section 8(3)(b) and that as such it is eligible for specification in the certificate.
We are unable to agree with this submission.
The word 'stores ' in the context in which it appears in rule 13 has to be necessarily goods intended for use in the manu facture or processing of goods for sale and it is not possible to hold that fertilisers, chemicals, weedicides, insecticides etc.
can come within this category.
They are not in any way directly con nected with the manufacturing or processing of tea.
As pointed out earlier, the expression 'in the manufacture ' can take within its compass only processes which are directly related to the actual production.
As such the claim for inclusion of this item in the Sales Tax Registration Certifi cate cannot be supported.
" The prayer of the appellant regarding items (2), (3) and (4) was also disallowed in the light of the observations of this Court in the case of 1.
K. Cotton Spinning & Weaving Mills Co. Ltd. (supra).
Item No. (5), in the opinion of the High Court, was too vague and indefinite to deserve inclusion in the certificate.
In the result the revision petition was dismissed.
Before dealing with the contentions advanced, it may be useful to refer to the relevant provisions.
Section 7 of the Act makes provision for registration of dealers.
Section 8 of the Act deals with rates of tax on sales in the course of inter State trade or commerce.
Clause (b) of sub section (1) of that section provides that every dealer, who in the course of inter State trade or commerce sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under this Act which shall be 3 per cent, of his turnover.
The percentage before July 1, 1966 was two.
Sub section 3(b) reads as under: "(3) The goods referred to in clause (b) of sub section (1) 759 (b) are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power;" The Central Sales Tax (Registration and Turnover) Rules, 1957 have been framed by the Central Govern ment.
Rule 13 of the rules reads as under: "13.
The goods referred to in clause (b) of sub section (3) of section 8 which a registered dealer may purchase, shall be goods intended for use by him as raw materials, processing materials, machinery, plant, equipment tools stores, spare parts, accessories, fuel or lubricants, in the manufacture or processing of goods for sale, or in mining, or in the generation of electricity or any other form of power.
" The question with which we are concerned in this appeal is whether the items of goods in respect of which prayer of the appellant for being included in the registration certif icate was refused, answer to the description of goods as given in the above rule.
Mr. Desai on behalf of the appellant has not pressed the case of the appellant in respect of item No. (5) which was found by the High Court to be vagne and indefinite.
He has also not made any sub missions in respect of items (2) and (3) relating to Cement and building materials.
The main contention of Mr. Desai has related to item No. (1) pertaining to fertilisers, chemi cals, weedicides, insecticides, fungicides and pesticides for use in tea cultivation.
According to the learned coun sel, cultivation and the growing of tea leaves was so inte grally connected with the manufacture of tea that it could be taken to be part of the process of manufacturing tea.
As fertilisers and othergoods mentioned in item (1) were needed for tea clutivation, the same should, according to the learned counsel, be held to be intended for use in the manufacture or processing of tea for sale.
Regarding item (4), the case of the appellant is that though weighing equipment used in the factories has been allowed to be included in the certificate, the weighing equipment used for the purpose of cultivation has not been included in the certificate.
The weighing equipment to be used for culti vation should also, it is urged, be included in the certifi cate.
The above contentions have been controverted by Mr. Narendra Nath, and he has urged that neither the goods mentioned in item No. (1) nor the weighing equipment needed for cultivation are directly, connected with the process of manufacturing tea.
After giving the matter our earnest consideration, we are of view that the contention of Mr. Narendra Nath is well founded.
760 Rule 13 has been the subject matter of two.
decisions of this Court In the case of Indian Copper Corporation (supra), the assessee was a dealer engaged both in mining operations of copper and iron ore and the manufacturing of finished products from the ore for sale.
This Court held that the two processes being inter dependent, it would be impossible to exclude vehicles which are used for removing from the place where the mining operations were concluded to the factory where the manufacturing process started, from the registration certificate.
The expression "goods intended for use in the manufacturing or processing of goods for sale" was held to include such vehicles as were intended to be used for removal of processed goods from the factory to the place of storage.
The mere fact that there is a statutory obligation imposed upon the owner of the factory or the mine to maintain hospital facilities would not, in the opinion of this Court, supply a connection between the goods and the manufacturing or processing of goods or the mining opera tions so as to make them goods intended for use in those operations.
The expression "intended to be used".
it was further held, cannot be equated with "likely to facilitate" the conduct of the business of manufacturing or of process ing goods or of mining.
In J. K. Cotton Spinning & Weaving Milis Co. Ltd. (supra) the appellant manufactured for sale cotton tex tiles, tiles and other commodities.
Certain items of goods in the certificate of registration of the appellant were deleted by the sales tax authorities on the ground that they had been earlier erroneously included in the ' certificate.
This Court in that context dealt with the scope and ambit of section 8(3) (b) of the Act read with rule 13.
It was held that the expression "in the manufacture of goods" in section 8(3)(b) should normally encompass the entire process car ried on by the dealer of converting raw materials into finished good 'section Where any particular process is so inte grally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would fail within the expression "in the manufacture of goods.
" It was further held that the process of design ing might be distinct from the actual process of turning out finished goods.
But there was no warrant for limiting the meaning of the expression "in the manufacture of goods" to the process of production of goods only.
The expression "in the manufacture" was held to take in within its compass all processes which are directly related to the actual production.
Drawing and photographic materials directly related to the actual production of goods were held to be goods intended for use "in the manufacture of goods".
Build ing materials, including lime and cement, not required in the manufacture of tiles for sale was, however, held to be not raw material in the manufacture or processing of goods or even as "plant".
We may now turn to the present case.
The question which essentially arises for determination is whether fertilisers and other goods mentioned in item No. (1) are intended for use by the appellant as equipment or stores in the manufac ture or processing of tea meant for 761 sale, as urged on behalf of the appellant.
The contro versy between the parties has centred round the point as to whether fertilisers and other goods mentioned in item No. (1) can be said to be goods intended for use in the manufac ture or processing of tea meant for sale.
So far as this question is concerned, we find that the growing and plucking of tea leaves from the plants and the processing of those leaves in the factories are parts of a continued activity.
The assertion of Mr. Desai that the tea leaves would lose their value unless they are processed in the factory soon after they are plucked is not being questioned.
It does not, however, follow from that that the cultivation of tea plants and the growth of tea leaves is not something distinct from the manufacturing process to which tea leaves are subjected in the factories.
The fact that the time lag between the plucking of tea leaves and their being subjected to manufac turing process in the factories is very little would not detract from the conclusion that the cultivation and growth of tea plants and leaves is something distinct and separate from the manufacturing process to which those leaves are subjected in the factories for turning them into.
tea meant for sale.
Income which is realised by sale of tea by a tea company which grows tea on its land and thereafter subjects it to manufacturing process in its factory is an integrated income.
Such income consists of elements or components.
One element or component consists of the agricultural income which is yielded in the form of green leaves purely by the land over which tea plants are grown.
The second element or component consists of non agricultural income which is the result of subjecting green leaves which are plucked from the tea plants grown on the land to a particular manufacturing process in the factory of the tea company.
Rule 24 of the Income tax Rules, 1922 and rule 8 of the Income tax Rules, 1962 prescribe the formula which should be adopted for apportioning the income realised as a result of the sale of tea after it is grown and subjected to the manufacturing process in the factory.
Sixty per cent.
is taken to be agricultural income and the same consists of the first element or component, while 40 per cent represents non agricultural income and the same comprises the second ele ment or component (see Tea Estate India (p.) Ltd. vs Commis sioner of Income tax(1).
Fertilisers and the other goods mentioned in item No. (1) are intended for use not in the manufacturing process in respect of tea meant for sale, they are essentially needed for the cultivation and growth of tea plants and leaves.
There is no direct relationship between use of fertilisers and other goods mentioned in item No. (1 ) and the manufac turing process in respect of tea meant for sale.
What is meant by manufacture of tea is clear from pages 863 4 of Vol.
21 of Encyclopedia Britannica (1965 Edition) wherein it is observed: "Black and green teas result from different manufactur ing processes applied to the same kind of leaf.
After plucking, the leaf is withered by being spread on bamboo trays in the sun, or on withering tats within doors.
The process takes 18 to 24 hours.
Next it is rolled.
by hand or by machines.
The object of rolling is to break 762 the leaf ceils and liberate the juices and enzymes sealed within.
The roll may last as long as three hours.
Then it is taken to the roll breaker and green leaf sifting machine and after that fermented in baskets, on glass shelves or on cool cement floors under damp cloth for 4 or 41/2 hours.
The firing process (drying) follows, in pans or baskets or in firing machines.
It takes 30 to 40 min.
The difference between black tea and green tea is the result of manipula tion.
Green tea is manufactured by steaming without fermen tation in a perforated cylinder or boiler, thus retaining some of the green colour.
Black tea is allowed to ferment after being rolled and before firing.
In the case of black tea the process of fermentation, or oxidation, reduces the astringency of the leaf and, it is claimed, developes the colour and aroma of the liquor.
In making green tea, the fermentation process is arrested by steaming the leaf while it is green and by light rolling before drying.
" The cultivation and growth of tea plants and leaves cannot, in our opinion, be comprehended in the expression "in the manufacture or processing of goods for sale".
Cultivation and growth of tea plants no 'doubt results in the production of raw material in the form of green tea leaves which are ultimately processed into tea meant for Sale, but such cultivation and growth are in the very nature of things prior to the manufacturing process and do not answer to the description of manufacture and processing of tea meant for sale.
There is a vital difference between an agricultural operation and a manufacturing process, and the same should not be lost sight of.
What is needed for being used purely in an agricultural operation cannot be held to be goods required for use in a manufacturing process.
We are, therefore, of the opinion that the appellant was not entitled to get fertilisers and other goods mentioned in item No. (1 ) included in the registration certificate.
The same reasoning would also hold good in respect of weigh ing machine used not in the factories but in the tea fields.
appeal consequently fails and is dismissed with coats.
V.P.S. Appeal dismissed.
| Section 8 of the , deals with rates of tax on sales in the course of inter State trade or commerce.
Section 8(1)(b) provides that every dealer, who in the course of inter State trade or commerce sells to a registered dealer goods of the description referred to in sub section
(3) shall be liable to pay tax at 3% of his turnover.
Section 8(3)(b) refers, inter alia to goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re sale by him, or subject to any rules made by the Central Government in this behalf,, for use by him in the manufac ture or processing of goods for sale.
Rule 13 of the Cen tral Sales Tax (Registration and Turnover) Rules, 1957, framed under the Act, provides that the goods referred to in section 8(3)(b) which a registered dealer may purchase shall be goods intended for use by him inter alia as raw materials and processing materials in the manufacture or processing of goods for sale.
The appellant owned tea estates in the respondent State and was also maintaining factories for the manufacture of tea.
It prayed for inclusion in its Certificate of regis tration, ( 1 ) fertilisers, chemicals, weedicides, insec ticides, fungicides and pesticides for use in tea cultiva tion; and (2) weighing and measuring and packing equip ments for use in tea estates.
The Department refused to include them and the Tribunal and the High Court confirmed the orders.
In appeal to this Court it was contended that, (1) cultivation and the growing of tea leaves was so integrally connected with the manufacture of tea that it could be taken to be a part of the process of manufacturing tea, and since fertilisers etc. were needed for tea cultivation, the same should be held to.
be intended for use in the manufacture or processing of tea for sale; and (2) since weighing equipment used in the factories had been included in the certificate, the weighing equipment used for the purpose of cultivation should similarly be included.
Dismissing the appeal, HELD: (1) The goods in item (1) are intended for use not in the manufacturing process in respect of tea meant for sale but are only needed for the cultivation and growth of tea plants and leaves.
There is no direct relationship between the use of fertilisers etc.
and the manufacturing process and hence, they were rightly not included in the registration certificate.
[761 G] (a) Cultivation and growth of tea plants result in the production of raw material in the form of green tea leaves which are ultimately processed into tea meant for sale.
But such cultivation and growth are, in the very nature of things, prior to the manufacturing process and do not answer to the description of manufacture and processing of tea meant for sale.
There is a vital difference between an agricultural operation and a manufacturing process.
What is needed for use purely in an agricultural operation cannot be held to be required for use in a manufacturing process.
[762 D] (b) The fact that the time lag between the plucking of tea leaves and their being subjected to the manufacturing process is very little would not detract 756 from the conclusion that the cultivation and growth of tea plants is distinct and separate from the manufacturing process.
[761 C] (c) Rule 24 of the Income Tax Rules, 1922, and r. 8 of the Income Tax Rules, 1962, prescribe the formula which should be adopted for apportioning the income realised as a result of the sale of tea after it is grown and subjected to the manufacturing process in the factory, thus recognis ing the difference between the agricultural income which is yielded in the form of green leaves purely by the land over which tea plants are grown, and the non agricultural income which is the result of subjecting the green leaves plucked to a particular manufacturing process.
[761 E] (2) The same reasoning holds good in respect of weighing machines used, not in the factories but, in the tea fields.
[762 E] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The Sales Tax Officer 16 STC 563.
and Indian Copper Corporation Ltd. vs Commission of Commercial Taxes 16 STC 259 fol lowed.
Tea Estate India (P) Ltd. vs Commissioner of Income tax referred to.
|
Appeal No. 353 of 1959.
Appeal from the judgment and order dated April 22, 1958, of the Punjab High Court (Circuit Bench) at Delhi in Civil Writ No. 257 D of 1957.
M. C. Setalvad, Attorney General of India, section N. Andley, J. B. Dadachanji Rameshwar Nath and P. L. Vohra, for the Appellant.
G. section Pathak, R. L. Anand and Janardan Sharma, for the respondent No. 2. 591 1960.
November 22.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal on a certificate granted by the Punjab High Court.
Sharda Singh (hereinafter called the respondent) was in the service of the appellant mills.
On August 28, 1956, the respondent was transferred from the night shift to the day shift in accordance with para 9 of the Standing Orders governing the workmen in the appellant mills.
At that time an industrial dispute was pending bet ween the appellant mills and their workmen.
The transfer was to take effect from August 30, 1956; but the respondent failed to report for work in the day shift and was marked absent.
On September 1, 1956, he submitted an application to the General Manager to the effect that he had reported for duty on August 30, at 10 30 p.m. and had worked during the whole night, but had not been marked present.
He had again gone to the mills on the night of August 31, but was not allowed to work on the ground that he had been transferred to the day shift.
He complained that he had been dealt with arbitrarily in order to harass him.
Though he said that he had no objection to carrying out the orders, he requested the manager to intervene and save him from the high handed action taken against him, adding that the mills would be responsible for his wages for the days he was not allowed to work.
On September 4, 1956, he made an application to the industrial tribunal, where the previous dispute was pending, under section 33 A of the , No. XIV of 1947, (hereinafter called the Act) and complained that he had been transferred without any rhyme or reason from one shift to another and that this amounted to alteration in the conditions of his service, which was prejudicial and detrimental to his interest.
As this alteration was made against the provisions of section 33 of the Act, he prayed for necessary relief from the tribunal under section 33 A.
On September 5, 1956, the General Manager replied to the letter of September 1, and told the respondent that his transfer from.
one shift to the other had been ordered on 592 August 28, and he had been told to report for work in the day shift from August 30; but instead of obeying the order which was made in the normal course and report for work as directed he had deliberately disobeyed the order and reported for work on August 30 in the night shift.
He was then ordered to leave and report for work in the day shift.
He however did not even then report for work in the day shift and absented himself intentionally and thus disobeyed the order of transfer.
The General Manager therefore called upon the respondent to show cause why disciplinary action should not be taken against him for wailfully refusing to obey the lawful orders of the departmental officers and he was asked to submit his explanation within 48 hours.
The respondent submitted his explanation on September 7, 1956.
Soon after it appears the appellant mills received notice of the application under section 33 A and they submitted a reply of it on October 5, 1956.
Their case was that transfer from one shift to another was within the power of the management and could not be said to be an alteration in the terms and conditions of service to the prejudice of the workman and therefore the complaint under section 33 A was not maintainable.
The appellant mills also pointed out that a domestic inquiry was being held into the subsequent conduct of the respondent and prayed that proceedings in the application under section 33 A should be stayed till the domestic inquiry was concluded.
No action seems to have been taken on this complaint under section 33 A, for which the appellant mills might as they had prayed for stay However, the domestic inquiry continued and on February 25, be partly responsible of those proceedings.
against the respondent 1957, the inquiry officer reported that t e charge of misconduct was proved.
Thereupon the General Manager passed an order on March 5, 1957, that in view of the serious misconduct of the respondent and looking into his past records, he should be dismissed; but as an industrial dispute was pending then, the General Manager ordered that the permission of the industrial tribunal should be taken before the order of dismissal was 593 passed and an application should be made for seeking such permission under section 33 of the Act.
In the meantime, a notification was issued on March 1, 1957, by which 10th March, 1957, was fixed for the coming into force of certain provisions of the Central Act, No. XXXVI of 1956, by which sections 33 and 33 A were amended.
The amendment made a substantial change in section 33 and this change came into effect from March 10, 1957.
The change was that the total ban on the employer against altering any condition of ser vice to the prejudice of workmen and against any action for misconduct was modified.
The amended section provided that where an employer intended to take action in regard to any matter connected with the dispute or in regard to any misconduct connected with the dispute, he could only do so with the express permission in writing of the authority before which the dispute was pending; but where the matter in regard to which the employer wanted to take action in accordance with the Standing Orders applicable to a workman was not connected with the dispute or the misconduct for which action was proposed to be taken was not connected with the dispute, the employer could take such action as he thought proper, subject only to this that in case of discharge or dismissal one month 's wages should be paid and an application should be made to the tribunal before which the dispute was pending for approval of the action taken against the employee by the employer.
In view of this change in the law, the appellant mills thought that as the misconduct of the respondent in the present case was not connected with the dispute then pending adjudication, they were entitled to dismiss him after paying him one month 's wages and applying for approval of the action taken by them.
Consequently, no application was made to the tribunal for permission in accordance with the order of the General Manager of March 5, 1957, already referred to.
Later, on April 2, 19579 an order of dismissal was passed by the General Manager after tendering one month 's wages to the respondent and an application was made to the authority concerned for approval of the action taken against the respondent.
594 Thereupon the respondent filed another application under section 33 A of the Act on April 9, 1957, in which he complained that the appellant mills had terminated his services without the express permission of the tribunal and that this was a contravention of the provisions of section 33 of the Act; he therefore prayed for necessary relief.
On April 18, 1957, an interim order was passed by the tribunal on this application by which as a measure of interim relief, the appellant mills were ordered to permit the respondent to work with effect from April 19 and the respondent was directed to report for duty.
It was also ordered that if the management failed to take the respondent back, the respondent would be paid his full wages with effect from April 19 after he had reported for duty.
On May 6, 1957, however, the application dated April 9, 1957, was dismissed as defective and therefore the interim order of April 18 also came to an end.
On the same day (namely, May 6, 1957), the respondent made another application under section 33 A in which he removed the defects and again complained that his dismissal on April 2, 1957, without the express previous permission of the tribunal was against section 33 and prayed for proper relief.
It is this application which is pending at present and has not been disposed of, though more than three years have gone by.
It is also not clear what has happened to the first application of September 4,1956, in which the respondent complained that his conditions of service had been altered to his prejudice by his transfer from one shift to another.
Applications under section 33 and section 33 A of the Act should be disposed of quickly and it is a matter of regret that this matter is pending for over three years, though the appellant mills must also share the blame for this state of affairs ' However, the appellant mills gave a reply on May 14,1957, to the last application under section 33 A and objected that there was no breach of section 33 of the Act, their case being that the amended section 33 applied to the order of dismissal passed on April 2, 1957.
Further, on the merits, the appellant mills ' case was that the dismissal was in the circumstances justified.
595 The matter came up before the tribunal on May 16, 1957.
On this date, the tribunal again passed an interim order, which was to the effect that as a measure of interim relief, the respondent should be permitted to work from May 17 and the respondent was directed to report for duty.
It was further ordered that in case the management failed to take him back, they would pay him his full wages with effect from the date he reported for duty.
Thereupon the appellant mills filed a writ petition before the High Court.
Their main contention before the High Court was two fold.
In the first place it was urged that the tribunal had no jurisdiction to entertain an application under section 33 A of the Act in the circumstances of this case after the amended sections 33 and 33 A came into force from March 10, 1957.
In the alternative it was contended that the tribunal had no jurisdiction to pass an interim order of reinstatement or in lieu thereof payment of full wages to the respondent even before considering the questions raised in the application under section 33 A on the merits.
The High Court held on the first point that in view of section 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, No. XXXVI of 1956, the present case would be governed by section 33 as it was before the amendment and therefore the tribunal would have jurisdiction to entertain the complaint dated May 6, 1957, under section 33 A of the Act.
On the second point, the High Court held that the order of the tribunal granting interim relief was within its jurisdiction and was justified.
In consequence, the writ petition was dismissed.
Thereupon the appellant mills applied and was granted a certificate by the High Court to appeal to this Court; and that is how the matter has come up before us.
The same two points which were raised in the High Court have been urged before us.
We are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of May 16, 1957, is manifestly erroneous in law and cannot be supported.
Apart from the question whether the tribunal had jurisdiction 596 to pass an interim order like this without making an interim award, (a point which was considered and left open by this Court in The Management of Hotel Imperial vs Hotel Workers ' Union (1)), we are of opinion that where the tribunal is dealing with an application under section 33 A of the Act and the question before it is whether an order of dismissal is against the provisions of section 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure.
It is clear that in case of a complaint under section 33 A based on dismissal against the provisions of section 33, the final order which the tribunal can pass in case it is in favour of the workman, would be for reinstatement.
That final order would be passed only if the employer fails to justify the dismissal before the tribunal, either by showing that proper domestic inquiry was held which established the misconduct or in case no domestic inquiry was held by producing evidence before the tribunal to justify the dismissal: See Punjab National Bank Ltd. vs All India Punjab National Bank Employees ' Federation (2), where it was held that in an inquiry under section 33 A, the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of section 33 by the employer.
After such contravention is proved it would still be open to the employer to justify the impugned dismissal on the merits.
That is a part of the dispute which the tribunal has to consider because the complaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under section 33 A.
Therefore, when a tribunal is considering a complaint under section 33 A and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal.
The interim relief ordered in this case was that the work (1) ; (2) ; 597 man should be permitted to work: in other words he was ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages.
We are of opinion that such an order cannot be passed in law as an interim relief, for that would amount to giving the, respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under section 33 A. As was pointed out in Hotel Imperial 's case (1),ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally.
The order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside.
We therefore allow the appeal, set aside the order of the High Court as well as of the tribunal dated May 16, 1957, granting interim relief.
Learned counsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside.
In the circumstances of this case we do not think that interim relief to the respondent is justified hereafter.
As we have pointed above, applications under sections 33 and 33 A should be dealt with expeditiously.
We trust that the applications dated September 4, 1956, which appears to have been overlooked and of May 6, 1957, will now be dealt with expeditiously and finally disposed of by the tribunal, as all applications under section 33 A should be.
In the circumstances we pass no order as to costs.
Appeal allowed.
| The Marwar Tenancy Act, 1949, now repealed but which was in force in the State of jodhpur at the relevant period, by section 85 authorised the Government in case of any general refusal by tenants to pay rent to declare by notification that such rents might be recovered as arrears of land revenue.
A notification having been issued by the Government of Rajasthan under that section the appellant, a jagirdar, applied to the Collector thereunder for the recovery of rents due to him from his tenants.
The tenants also applied to the Collector stating that notice of the said application should be served on them and they should be given a hearing as required by the rule framed under the Rajasthan Revenue Courts (Procedure and jurisdiction) Act, 1951.
The Collector rejected the tenants ' application and passed an order directing the recovery of the sum found to be due to the appellant as arrears of land revenue.
The Additional Commissioner on appeal and the Board of Revenue in revision upheld the Collector 's order.
But before the Board passed its order the 48 Government rescinded the notification.
The High Court on an application under article 226 of the Constitution held that although section 85 of the Tenancy Act had not been repealed by the Revenue Courts Act, 1951, the rules framed under that section had been, and the non compliance with the rules framed under the latter Act which should have been followed, was an error on the face of the record and quashed the orders directing that since the notification under section 85 of the Tenancy Act had been rescinded no further action thereunder should be taken by the Collector.
Held, that there could be no doubt that section 2 of the Rajasthan Revenue Courts (Procedure and jurisdiction) Act, 1951, had not repealed section 85 of the Marwar Tenancy Act, 1949, and that the former Act contemplated its continuance, unfettered by the bar of limitation, and subject to this modification that an application under the section was no longer to be made to the Deputy Commissioner but to the Collector.
Section 85 of the Tenancy Act clearly contemplated that an application thereunder shall be heard and determined in the absence of the tenant.
The right given by the section was a summary one and the application must be heard ex parte.
It was not, therefore, necessary to serve any notice on the tenants.
It would not be correct to hold that the procedure of a con tested proceeding as prescribed by Ch.
II of the Rules framed under the Revenue Courts (Procedure and jurisdiction) Act, 1951, could apply to the application for to apply them would be to wholly defeat its object.
Once a notification under the section had been issued and an application duly made, subsequent rescission of 'the notification could not divest the appropriate authority of the power already vested in him to dispose of the application.
|
67/1960.
Petition under Article 32 of the Constitution of India for enforcement of fundamental rights.
633 A. V. Viswanatha Sastri and B. B. L. Iyengar, for the petitioners.
C. K. Daphtary, Solicitor General of India, R. Ganapathy Iyer and R. H. Dhebar, for the respondents.
September 8.
The Judgment of the Court was delivered by A SUBBA RAO J.
This is a petition under article 32 of the Constitution to quash the order of the first respondent dated April 28, 1960, and the scheme dated April 20, 1960, and to direct the first respondent to deal with the application of the petitioner for renewal of its permit in accordance with law.
The petitioner was doing business of motor transport in Bombay State for over 20 years.
It had four permanent stage carriage permits granted some years ago and renewed from time to time to ply buses on the following routes: (i) Yeotmal Umerkhed. 2 return trips.
(ii) Yeotmal Pusad. 4 return trips.
The term of the latest permits expired on December 31, 1959.
About four months prior to the expiry of the permits the petitioner applied on August 24, 1959, for the renewal of the permits under section 58(2) of the (Act IV of 1939), (hereinafter called the Act).
On October 29, 1959, the State Transport Department published its proposed scheme for the nationalization of the road transport services in respect of an area which included the routes of the petitioner.
On November 9, 1959, the petitioner wrote a letter to the Secretary, the Regional Transport Authority, Nagpur, asking him why its application for renewal of the stage carriage permits had not been published as required by section 57 of the Act.
It also expressed its apprehension that the application was not published by the Regional Transport Authority with a view to assist the State Transport Department in ousting it from the said routes and that the Authority was creating a situation in order to force the petitioner to accept temporary permits under section 62(d) of the Act .
The Secretary, the Regional Transport 634 Authority, by his letter dated November 11, 1959, replied to the effect that the application for renewal had been published on November 8, 1959, and that the said application would be considered before the expiry date and that no question of issuing temporary permits would arise.
On November 19, 1959, the Assistant Manager of the State Transport Department on behalf of the State Transport Department filed applications before the Regional Transport Authority for issue of permits to it in respect of the said two routes among others.
It was mentioned therein that as per the notification published in the Bombay Government Gazette dated October 29, 1959, the Provincial Transport Services proposed to take over the aforesaid routes from January 1, 1960.
The Provincial Transport Services also filed objections against the renewal of the permits in favour of the petitioner.
On December 10, 1959, the said applications were published in the Gazette and it was notified therein that representations, if any, should be submitted on or before December 15, 1959, and that the said objections along with the applications for permits would be considered in a meeting to be held by the Regional Transport Authority in the month of December, 1959, at Nagpur or at a later date which may be notified in due course.
On December 21, 1959, the Secretary of the Regional Transport Authority intimated to the petitioner that in the meeting of the Regional Transport Authority scheduled to be held on December 31, 1959, it would not be possible to consider its applications for renewal due to " heavy agenda ".
It was also suggested to it to apply for the grant of temporary permits pending renewal in good time so that they could be issued before the due date.
The petitioner on the same date replied to that letter wherein it pointed out that " the heavy agenda mentioned in your letter is, we hold, a design to cover your attempt to ad Vance the cause of the Provincial Transport Services, (U. G. O.), Nagpur ".
Without prejudice to its rights the petitioner applied for temporary permits as directed by the Authority On December 29, 1959, temporary permits were issued for one month from January 1, 635 1960, and thereafter they were extended for another month and made available upto March 31, 1960.
The ,next meeting of the Regional Transport Authority scheduled to be held on February 5, 1960, was adjourned to February 24, 1960, and on January 22, 1960, the Chief Minister of Bombay issued notices to the petitioner and others that objections to the proposed scheme would be heard on February 24, 1960; but on the said date the applications were not disposed of on the ground that the matter was sub judice in the High Court of Bombay.
On March 17, 1960, the Provincial Transport Services filed a fresh application before the Regional Transport Authority under Ch.
IVA of the Act for the grant of permits for plying buses on the routes mentioned therein.
It was also brought to the notice of the Regional Transport Authority that the Provincial Transport Services desired to operate tile routes in question from May 1, 1960, or any other date as may be fixed by the Regional Transport Authority.
Presumably, the second application was filed as the earlier application was filed not under Ch.
IV but Under Ch.
IVA of the Act on the basis of the proposed scheme.
On March 31, 1960, the Regional Transport Authority met again, but the applications for renewal of permits filed by the petitioner were not taken up for consideration.
It is suggested that as 30 days had not expired from the date of the filing of the applications by the Provincial Transport Services the petitioner 's applications could not be taken up for consideration.
On April 14, 1960, the Chief Minister of Bombay heard the objections and on April 19, 1960, the scheme with modifications was duly approved by the Government and published on April 20, 1960.
The approved scheme covered only the routes in respect of which only tem porary permits were issued and excluded the routes in regard to which pucca permits were issued.
The approved scheme included the petitioner 's routes.
On April 20, 1960, the applications were again adjourned to April 29,1960.
On April 26, 1960, the petitioner moved this Court under Art.32 of the Constitution and on April 28, 1960, the petition was dismissed as premature.
636 On the same day even though the Regional Transport Authority was informed that this Court was moved by the petitioner its renewal applications were rejected on the ground that the scheme was approved by the Government.
The present petition was filed on April 29, 1960, for the aforesaid reliefs.
The main contention of learned counsel, Mr. A. V. Viswanatha Sastri, for the petitioner, is that the Regional Transport Authority was actuated by mala fides in the disposal of the applications for renewal of the permits, and that though under the provisions of the Act it had no alternative but to renew the permits of the petitioner it adjourned the matter from time to time with an evil design to enable the Government to approve the scheme.
In that situation, he contends, the proper course is to set aside the order of the Regional Transport Authority and direct it to dispose of the petitioner 's applications for renewal of permits as on the date when they were filed.
To appreciate this argument it is necessary to notice some of the relevant provisions of the Act.
Under section 58 of the Act, " A stage carriage permit or a contract carriage permit. . 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 ".
Clause (2) provides for the renewal of permits on application made and disposed of as if it were an application for a permit.
Section 57 prescribes the procedure in the matter of the disposal of applications for permits.
Section 57 (1) enables the filing of an application for a permit at any time, and clause (2) of that section says that such an application shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, and, under cl.
(3) thereof, on receipt of such an application for permit the Regional Transport Authority shall publish the application in the prescribed manner calling for representations to be made on a date not being less than 30 days from the date of publication.
After hearing the said objections and representations, the applications will be disposed of in accordance with the provisions of 637 the Act.
Section 62 enables the Regional Transport Authority to grant permits without following the procedure prescribed under section 57 to be effective for a limited period not in any case to exceed four months, to authorize the use of a transport vehicle temporarily pending decision on an application for the renewal of a permit.
The second proviso to that section states that a temporary permit under the said section shall, in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal.
Section 68F enables the State Transport Undertaking, in pursuance of an approved scheme, to apply in the manner specified in Ch.
IV for a stage carriage permit in respect of a notified route and on such an application the Regional Transport Authority shall issue such a permit to the said Undertaking notwithstanding anything contained to the contrary in Ch.
Under cl.
(2) of that section, for the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority may by order refuse to entertain any application for the renewal of any other permit, to cancel any existing permit or to modify the terms of any existing permit.
Section 68G prescribes the principles and method of determining compensation in respect of the permits cancelled or modified.
The foregoing provisions, so far relevant to the present enquiry, may be summarized thus: An operator of a stage carriage may apply for renewal of his permit not less than 60 days before the date of its expiry; the said application will be disposed of as if it were an application for a permit and he will be given preferential treatment, the other conditions being equal; the Act does not prescribe any outer limit for disposal of the application for renewal of a permit, for its disposal would depend upon the applications filed by others and the time required for complying with the conditions laid down in section 57; but the requirement that the application shall be filed not less than 60 days before the date of the expiry, the injunction that pending an application for 638 renewal of a permit, temporary permit shall not be given more than once and the time limit of four months for a temporary permit fixed in section 62 indicate that, though there is no statutory prohibition, the application is expected to be disposed of ordinarily before the term of the, permit expired or, in case of unavoidable delay, within a reasonable time thereafter; after a scheme has been approved, if the State Transport Undertaking applies for a permit, the Regional Transport Authority shall issue the permit to it and for the purpose of giving effect to the approved scheme the said Authority is authorized to refuse to entertain an application for renewal of any other permit or cancel or modify any existing permit; if the Regional Transport Authority cancels or modifies a permit, compensation is, payable to the operator affected.
In the present case the permits expired on December 31, 1959.
The petitioner filed applications for renewal on August 24, 1959, and they were rejected on the ground that there was an approved scheme on April 28, 1960.
On December 29, 1959, temporary permits were granted for one month and after the expiry of those permits, another set of temporary permits was issued for another month ending with March 31, 1960.
It is true that under the second proviso to section 62 temporary permits could not have been granted more than once, but a transgression of that provision by the Regional Transport Authority does not affect the question raised.
As the provisions of the Act do not prescribe any time limit for the disposal of an application for renewal of permits, we cannot hold that the Regional Transport Authority acted without jurisdiction in rejecting the applications some months after the date of the expiry of the terms of the permits.
If there was any inordinate delay in the disposal of an application, it was open to the affected party to ask for a mandamus to direct the appropriate Authority to dispose of the petition within a reasonable time.
But no such step was taken by the petitioner, though it filed a writ petition in the High Court for other reliefs.
639 The next question is whether the Regional Transport Authority exceeded its power in rejecting the applications.
In this context it will be convenient to read the relevant portions of section 68F, which read: Section 68F: "(1) Where, in pursuance of an approved scheme, any State transport undertaking applies. . . for a stage carriage permit the Regional Transport Authority shall issue such permit to the State transport undertaking. . . (2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority may, by order, (a) refuse to entertain any application for the renewal of any other permit.
" Learned counsel for the petitioner contends that section 68F applies only when an application for permit is made by a State Transport Undertaking in pursuance of an approved scheme and that in the present case as the application was filed by the State Transport Undertaking before the scheme was approved, the provisions of the section were not attracted.
It is true that under section 68F the Regional Transport Authority is bound to issue a permit to a State Transport Undertaking only ' if it applies in pursuance of an approved scheme.
That is why in the present proceedings the Authority did not issue any permit to the State Transport Undertaking; but sub section
(2) of section 68F is not conditioned by any such limitation.
The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit.
This power does not depend upon the presentation of an application by the State Transport Undertaking for a permit.
This power is exercisable when it is brought to the notice of the Authority that there is an approved scheme and, to give effect to it, the application for renewal cannot be entertained.
By the time the application for renewal came to be disposed of, admittedly the scheme had been approved by the Government of Bombay and the routes in question were included in the said scheme.
Therefore$ 82 640 the Authority was within its rights not to entertain the applications filed by the petitioner.
It is contended that the word " entertain " refers to an application filed for the renewal of a permit after the scheme was approved and that the said provision has no relevance to an application for renewal made before that date.
The word " entertain " may mean " to receive on file or keep on file ", and in that sense the Authority may refuse to keep an application on its file by 1.
rejecting it either at the time it is filed or thereafter.
It does not connote any time but only describes the scope of the duty under that clause.
It can only mean that the Authority cannot dispose of the application on merits but can reject it as not maintainable.
Any other meaning given to this word leads to an anomalous position, for even if the approval of a scheme had been brought to the notice of the Regional Transport Authority, it would have to order the renewal of the permit and thereafter it would have to cancel the permit, presumably, on an application filed by the State Transport Undertaking.
We do not think that the legislature used the word " entertain " to bring about that result.
A wider meaning of the word " entertain " would enable the smooth working of the provisions of the section and we have no reason to accept the narrower meaning suggested by the learned counsel.
We, therefore, hold that the Regional Transport Authority had power under section 68F(2) of the Act in the circumstances of the case to reject the applications filed by the petitioner.
The next contention of the learned counsel is that the scheme suffers from the vice of discrimination inasmuch as, though it excluded the petitioner from operating on the route between Yeotmal and Umerkhed, it allowed others to ply their buses on that route on their way from Akola to Umerkhed or Amravati to Umerkhed.
There is no basis for this argument in the affidavit filed by the petitioner is support of the writ petition.
We do not think that we are justified in allowing the petitioner to raise the plea for the first time before us.
We do not, therefore, allow it to do so.
641 Lastly it is argued that the Chief Minister confirmed the scheme on extraneous considerations not covered by section 68C of the Act.
In paragraph 24 of his order the Chief Minister observed, " On merits, it is quite clear to me that having regard to the resources of the P. T. section and the amenities that it provides to the public, it is in the public interest that the scheme submitted by the P. T. section, Nagpur, should be approved ".
Under section 68C the question that arose for consideration before the Chief Minister was whether the transport services should be run by the State Transport Under.
taking to the exclusion of the petitioner and whether it was necessary to do so in public interest to provide an efficient, adequate, economical and properly co ordinated road transport service.
The Chief Minister found on the material placed before him that it was necessary in the public interest that the scheme submitted by the Provincial Transport Services should be approved.
In support of his conclusion, he took into consideration that the Provincial Transport Services were in possession of sufficient resources and were in a better position to provide amenities to the public and therefore in public interest they should be given preference over the private operators of buses.
We cannot say that the Chief Minister took any extraneous circumstances into consideration in coming to that conclusion.
The record in this case is not indicative of promptitude or efficiency in the matter of discharge of the statutory functions by the Regional Transport Authority.
The various dates, the reasons given for putting off the disposal of the petitions for renewal from time to time and the timing and the manner of the final disposal are such as may legitimately give rise to the allegation that the Regional Transport Authority was not, to say the least, fair and impartial in the discharge of its duties.
A statutory tribunal is expected to discharge its functions fairly and without bias even in a case where the interests of the Government are involved.
Considering the facts and circumstances of this case, we cannot say that the complaint of the petitioner that the adjournments were not for the 642 reasons mentioned in the orders but were only to give time to enable the Government to approve the scheme, may not be wholly unjustified.
In the circumstances, though we are dismissing the application, we are not awarding any costs to the respondents.
Petition dismissed.
| As the petitioner 's stage carriage permits were to expire on December 31, 1959, it made applications for a renewal of them 81 632 on August 24, 1959.
on December 29, 1959, temporary permits were granted to the petitioner for one month and thereafter for another, made available up to March 31, 196o.
The matter was adjourned from time to time and ultimately on April 28, 196o, the petitioner 's applications were rejected on the ground that a scheme of nationalisation including the petitioner 's routes had in the meantime been approved by the Government on April 20, 196o.
The petitioner applied under article 32 of the Constitution for a writ quashing the said order and the scheme, on the ground that the Regional Transport Authority was actuated by mala fides and its real purpose in granting the adjournments was to enable the Government to approve of the scheme, and for a direction that the petitioner 's applications for renewal might be disposed of according to law as on the date when they were filed.
Held, that the petition must fail.
The , does not prescribe any time limit for the disposal of an application for renewal of permits and it cannot be said that the Regional Transport Authority in the instant case acted without jurisdiction in rejecting the applications even though months had elapsed after the permits had expired and notwithstanding that section 62 permitted the issue of no more than one temporary permit.
Even so, the relevant provisions of the Act indicate that an application for renewal of a permit has to be disposed of ordinarily before the expiry of the permits or within a reasonable time thereafter.
It was, therefore, open to the petitioner, if it was aggrieved by the delay, to ask for a mandamus directing the Authority to dispose of its applications within a reasonable time.
Although section 68F(1) of the Act applies only where the State Transport Undertaking applies for a permit in pursuance of an approved scheme, section 68F(2) is not conditioned by any such limitation and the word 'entertain used by it does not refer to an application filed for the renewal of a permit after the approval of the scheme.
That word does not connote any time but describes the scope and duty under that clause and only means that the Authority cannot dispose of an application on merits but can reject it as not maintainable either at the time it is filed or thereafter.
Statutory bodies are in duty bound to act promptly and efficiently and discharge their functions fairly and without bias even where the Government is interested.
The conduct of the Regional Transport Authority, in the instant case, in granting adjournments, not for the reasons they purported to be but to enable the Government to approve of the scheme, must be disapproved.
|
he notification dated February 8 , 1984 issued by the State Government under section 52 ( 1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances.
It was not necessary for the respondents to plead the service of notice on them by the Special Officer , Town Planning Department , Jaipur under section 52 (2) for the grant of an appropriate writ , direction or order under article 226 of the Constitution for quashing the notification issued under section 52 (1).
If the respondents felt aggrieved by the acquisition of their lands at Jaipur and wanted to challenge the validity of the impugned notification issued by the State Government of Rajasthan under section 52 (1) , by a petition under article 226 , the remedy of the respondents to file such a petition lay before the Rajasthan High Court Jaipur Bench , where the cause of action wholly or in part arose.
[605F H; 606A] & CIVIL APPELLATE JURISDICTION: Civil Appeal NO.
2085 Of 1985.
From the Judgment and Order dated 13.3.1984 of the Calcutta High Court in C. P. NO.
5972 (W) of 1984.
K Parasaran , Attn.
and Badridas Sharma for the Appellants.
G.L. Sanghi , Praveen Kumar and Ashok Mathur for the Respondents.
The Judgment of the Court was delivered by SEN. , J.
The issue involved in this appeal by special leave is: Whether the service of notice under sub section
(2) of section 52 of the Rajasthan Urban Improvement Act , 1959 ( 'Act ' for short) served on the respondents at their registered office at 18 B , Brabourne Road , Calcutta by the Special Officer , Town Planning Department , Jaipur was an integral part of the cause of action and was sufficient to invest the Calcutta High Court with jurisdiction to entertain a petition under article 226 of the Constitution challenging the validity of a notification dated February 8 , 1984 issued by the State Government of Rajasthan under S 5 (21) of the Act for the acquisi 601 tion of certain lands belonging to them required by the Urban Improvement Trust , Jaipur for a public purpose, namely, for implementation of a development scheme viz. Civil Lines Extension Scheme.
It is somewhat strange that a learned Single Judge of the Calcutta High Court (R.N.Pyne, J.) should have by his order dated March 13, 1984 entertained a petition under article 226 of the Constitution filed by the respondents , issued a rule nisi thereon requiring the reasons as to why a writ in the nature of mandamus should not be issued directing the appellants herein, the State of Rajasthan, the Jaipur Development Authority, Jaipur and the Land Acquisition Officer, Jaipur to forbear from giving effect to the impugned notification dated February 8, 1984 and passed an ad interim exparte prohibitory order restraining them from taking any steps requiring the respondents under sub section
(5) of 52 of the Act to surrender or deliver possession of the lands acquired forthwith or upon their failure to do so to take immediate steps under sub section
(6) thereof to secure such possession.
We are distressed to find that the learned Single Judge despite a long line of decisions of this Court starting from Siliguri Municipality vs Amalendu Das (1) deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , should have passed the impugned orders in the manner that he did.
It seems that the pronouncements of this Court have had little exact on the learned Single Judge.
The learned Attorney General appearing for the State of Rajasthan takes serious exception to the authority and jurisdictionof the learned Single Judge to have entertained the writ petition filed by the respondents and issued the rule nisi and to have made the ad interim exparteprohibitory order which virtually has brought the entire acquisition proceedings pending at Jaipur in the State of Rajasthan to a standstill.
He contends that the petition filed by the respondents purporting to be under article 226 of the Constitution in the Calcutta High Court and the rule nisi thereon and the ad interim exparte prohibitory order secured by them on the basis of such petition from the learned Single Judge on March 13, 1984 when there was total lack of inherent jurisdiction on the part of (1) ; , 602 the Calcutta High Court to entertain such petition , constitutes a flagrant abuse of the process of the Court.
There is , in our opinion considerable force in this submission.
The facts of the case are as follows: Messrs Swaika Properties Pvt.
Limited, Calcutta owned Khasra No. 383 area 14 bighas 16 biswas situate in village Madrampura on the outskirts of Jaipur city.
On June 25, 1975 the Special Officer , Town Planning Department, Jaipur issued a notice under section 52 (2) of the Act at the instance of the Improvement Trust, Jaipur stating that it was proposed by the State Government to acquire the said land admeasuring more or less 44,770 square yards under section 52 (1) of the Act for a public purpose, namely, for the implementation of a development scheme at public expense viz. the Civil Lines Extension Scheme, The said notice was duly served on the respondents and they in compliance therewith appeared before the Special Officer, Town Planning Department, Jaipur and filed their reply dated September 8, 1975.
In the reply, the respondents while denying the existence of a public purpose for acquisition of the lands under section 52(1) of the Act asserted that they needed the said land to start new businesses in the State of Rajasthan and for that purpose to utilize the notified land for establishment of a branch office and for construction of residential houses for their Director and other Senior Executives.
The Special Officer adjourned the case from time to time and issued several notices to the respondents for personal hearing under section 52 (3) of the Act.
The respondents through their representative appeared at each of these hearings and sought adjournment on one pretext or another.
Significantly although the respondents participated in the proceedings before the Special Officer, they did not raise any objection as to the power and authority of the State Government of Rajasthan to acquire the notified land under section 52 (1) of the Act or the legality and propriety of the notice issued by the Special Officer under s , 52 (2) or his jurisdiction to proceed with the inquiry under section 52 (3).
Nor did the respondents place any material before the Special Officer to show that they really needed the notified land for the purpose of expansion of their business activities to the State of Rajasthan.
It is pertinent to observe that the respondents had been shifting their stand before the Special Officer.
As already stated , they had in their reply dated September 8, 1975 alleged that they genuinely required the land for starting new businesses in the State , to open a branch office at Jaipur and 603 to construct residential quarters for their Director and other Senior Executives , but at a later stage they alleged that they wanted to construct a Three Star Hotel on the said land.
Eventually , the Special Officer by his order April 9 , 1976 held that the alleged need of the respondents was just a pretence and he was satisfied on the material on record that the land was really not needed by them bona fide and their real object was just to get the land released from acquisition on one ground or the other.
with these observations he rejected the prayer of the respondents for release of the land and recommended that the entire land be acquired by the State Government under section 52(1) of the Act for the Urban Improvement Trust , Jaipur , and forwarded the papers to the Secretary to the State Government , Town Planning Department , Rajasthan for issue of the requisite notification under section 52 (l) of the Act.
It appears from the material on record that the respondents having failed in their effort to get the land released from acquisition then took up the matter with the State Government.
They made an application to the State Government on February 10 , 1977 seeking exemption of the notified land under section 20 of the Urban Land (Ceiling & Regulation) Act , 1976 stating that they required the land for construction of a Three Star Hotel.
The State Government in the Urban Development & Housing Department by letter dated April 4 , 1977 informed the respondents that there was no possibility of an exemption being granted under section 20 of the Act in their favour allowing them to retain vacant land in excess of 6,000 square yards for the construction of a Three Star Hotel.
The State Government stated that the remaining land was required by the Urban Improvement Trust , Jaipur for development of house sites and for construction of two 'Ministers ' bungalows in Civil lines and therefore the proceedings for acquisition of the notified land would not be withdrawn.
The State Government required the respondents to submit detailed proposals in respect of 6,000 square yards of land for their proposed Three Star Hotel showing commitments made, financial resources etc.
through the Director of Tourism, Rajasthan, Jaipur and were intimated that they would be entitled to retain the said land on payment of the prescribed fee for converting the land use from agriculture to hotel business.
Apparently, the respondents were not serious in undertaking the 604 new venture of starting a Three Star Hotel on an area of 6,000 square yards as their real object was to get the notified land released from acquisition.
The February 21, 1979, there was a meeting at the Secretariat in the Urban Development & Housing Department between officers of that Department and those of the Urban Improvement Trust, Jaipur.
It was clarified on behalf of the Improvement Trust that the notified land in its entirety was needed for implementation of the development scheme of the Trust.
The Improvement Trust accordingly by its letter dated March 5, 1979 requested the State Government that necessary orders be passed for acquisition of Khasra No. 383 in village Madrampura admeasuring 14 bighas 16 biswas and a notification to that effect issued under section 52(1) of the Act.
It was pointed out that a public notice under section 55(2) of the Act as regards the notified land had already been issued by the Special Officer , Town Planning Department , Jaipur dated June 25 , 1975 , and the necessary procedure as laid down in sub S.(3) thereof followed.
As a result of this , the State Government issued the impugned notification dated February 8 , 1984 under section 52(1) Or the Act and the notified land vested in the State Government free from all encumbrances.
The State Government in their special leave petition have explained that the notification under section 52(1) of the Act could not be issued till February 8 , 1984 because the Government were primarily thinking of making the land available for construction of residential houses before making provisions for construction of a Three Star or Five Star Hotel but nothing came out of the said proposal as there was no response from the respondents.
Upon these facts , we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under article 226 of the Constitution or to make the ad interim exparte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired.
Under sub section
(5) of section 52 of the Act the appellants were entitled to require the respondent to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so , take 605 immediate steps to secure such possession under sub section
(6) thereof.
The expression 'cause of action ' is tersely defined in Mulla 's Code of Civil Procedure: "The 'cause of action ' means every fact which , if traversed , it would be necessary for the plaintiff t y prove in order to support his right to a judgment of the Court.
" In other words , it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.
The mere service of notice under section 52(2) of the Act on the respondents at their registered of ice at 18 B , Brabourne Road , Calcutta i.e. within the territorial limits of the State of West Bengal , could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action.
The entire cause of action culminating in the acquisition of the land under section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench.
The answer to the question whether service of notice is an integral part of the cause of action within the meaning of article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action.
The notification dated February 8 , 1984 issued by the State Government under section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances.
It was not necessary for the respondents to plead the service of notice on them by the Special Officer , Town Planning Department , Jaipur under section 52(2) for the grant of an appropriate writ , direction or order under article 226 of the Constitution for quashing the notification issued by the State Government under section 52(1) of the Act.
If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under section 52(1) of the Act by a petition under article 226 of the Constitution , the remedy of the respondents of the grant of such relief had to 606 be sought by filing such a petition before the Rajasthan High Court , Jaipur Bench , where the cause of action wholly or in part arose.
It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , the learned Single Judge should have passed the impugned ad interim exparte prohibitory order the effect of which , as the learned Attoreny General rightly complains , was virtually to bring to a standstill a development scheme of the Urban Improvement Trust , Jaipur viz. Civil Lines Extension Scheme , irrespective of the fact whether or not the High Court had any territorial jurisdiction to entertain a petition under article 226 of the Constitution.
Such arbitrary exercise of power by the High Court at the public expense reacts against the development and prosperity of the country and is clearly detrimental to the national interest.
Quite recently , Chinnappa Reddy , J. speaking for the Court in Assistant Collector of Central Excise , West Bengal vs Dunlop India Limited and Ors.(1) administered strong admonition deprecating the practice of the High Court of granting ad interim exparte orders which practically have the effect of the grant of the main relief in the petition under article 226 of the Constitution irrespective of the fact whether the High Court had any territorial jurisdiction to entertain such a petition or whether the petition under article 226 was intended and meant to circumvent the alternative remedy provided by law or filed solely for the purpose of obtaining interim orders and thereafter delaying and protracting the proceedings by one device or the other particularly in matters relating to public revenue or implementation of various measures and schemes undertaken by the Government or the local authorities for general public benefit.
Although the powers of the High Courts under article 226 of the Constitution are far and wide and the Judges must ever be vigilant to protect the citizen against arbitrary executive action , nonetheless , the Judges have a constructive role and therefore there is always the need to use such extensive powers with due circumspection.
There has to be in the larger public interest an clement of self ordained restraint.
We hope (1) [19851 1 S.C.C. 260. 607 and trust that the High Court will determine the extent of its territorial jurisdiction before making such interlocutory orders.
In the result , the appeal succeeds and is allowed with costs.
The impugned orders passed by the learned Single Judge of the Calcutta High Court dated March 13 , 1984 issuing a rule nisi on the petition filed by the respondents under article 226 of the Constitution and the ad interim exparte prohibitory order made by him are set aside and the proceedings before the Calcutta High Court are quashed.
We quantify the costs at Rs. 5,000.
N.V.K. Appeal allowed.
| The idol of Gopalji was installed by one Purshottam Lal in his house at Vrindavan, which later became the temple of the deity.
The founder who had no issue, performed Seva Puja of the deity so long as he was alive and thereafter it was performed by his wife.
By his will exhibit A 2, he dedicated his entire property to the deity, and made his wife the Mohatmim/ Shebait without any power to transfer any property.
In accordance with the directions of her husband, the wife adopted the second respondent by a registered deed after performing the necessary religious ceremonies.
After the death of the wife, the appellant in the appeal worked as Pujari in the temple with the consent of the second respondent 's guardian and natural father.
Later he denied the rights of the second respondent and contended that the founder 's wife executed her last will and testament exhibit A 6 bequeathing her bank deposits, government bonds, household articles, utensils etc.
to the appellant to be kept by him in his custody, so long as the second respondent was a minor and to be responsible for the seva puja and raj bhog of the deity and the management of the deity 's properties.
A suit was filed by the respondents, for recovery of possession of the idol and temple of Gopalji and for the money lying in deposit with the bank, the zamindari abolition compensation etc.
373 The trial court held the adoption of the second respondent to be duly authorised and valid and found that the founder 's wife had validly executed the will exhibit A 6, but could not transfer the shebaiti rights to the second respondent thereby and that the second respondent had, however become the Mohatmim/Shebait by reason of the adoption, and found that the movable properties and the cash claimed by the appellant under the will were the personal properties of the wife and that the appellant had become entitled to them as a legatee under the will and that the other properties belong to the first respondent Gopal Ji, and decreed the suit in part.
In the appeal by the appellant, and the cross objections filed by the second respondent, the additional district judge found that as the adoption was without the authority of the husband to adopt, it was invalid in law and following this Courts ' decision in K.K. Ganguli v Pama Banerjee, AIR held that the second respondent had not become shebait under the will and allowed the appeal and dismissed the corss objections and the suit in full.
In the second appeal, the High Court following this Courts ' decision in Angurbala Mullick vs Debabrata Mullick, [1951] 2 S.C R. 1125 that shebaiti is heritabal property, held shebaiti is property & found that no restriction had been placed in the will of the founder in regard to the shebaiti, and therefore the wife had succeeded to the limited right of shebait as the heir of her husband and it became enlarged into an absolute right under section 14(1) of the and that as there was on other heir or successor to the founder, the wife 's appointment of the second respondent as the shebait under her will exhibit A 6 was valid in law.
The second appeal was accordingly allowed in part except in respect of certain items enumerated in the plaint, and cash in fixed deposit with a bank.
Dismissing the appeal, to this Court.
, ^ HELD: (Per Varadarajan J.) 1.
The text of Hindu Law and the two decisions of this Court in Profulla Choronl Requittee vs Salya Chornal Requittee and Ram Rattan vs Bajrang Lal Angurbala Mullick vs
Debabrata Mullick, [1951] 2 S,C R 1125 show that shebait ship is in the nature of immovable property heritable by the widow of the last male holder unless there is an usage or custom of a different nature in cases where the founder had not disposed of the shebaiti right in the endowment created by him.
[382B C] In the instant case, the founder (Purshottam Lal) had not made any disposition regarding shebaiti right in his will, exhibit A 2 dated 14 4 1944 where by he created the endowment.
No custom or usage to the contrary had been pleaded.
Therefore, the widow (Asharfi Devi) had succeeded to the shebaiti 374 right held by him on his death as a limited owner and that right had become enlarged into an absolute right by the provisions of Section 14(1) of the and she could transfer that right by a will in favour of a person who is not a non Hindu and who could get the duties of shebait per formed either by himself or by any other suitable person.
[382C D] 2.
The second respondent has acquired the shebaiti right under the will exhibit A 6.
No interference is called for with the judgment of the Single Judge of the High Court in the Second appeal.
[382E] (Per Sabyasachi Mukharji J. 'concurring) ' 1.
It is well settled that shebaitship is heritable.
This Court in Angurbale Mullick vs Debabrata Mullick, 119511 2 S.C.R. 1125 recognised the right of a female to succeed to the religious office of shebaitship in view of the Hindu Women 's Right to Property Act 1937.
Section 14(1) of the enlarged the limited right of a Hindu female to the absolute right of the holder.
[382H; 383A] In the instant case, the property in the nature of shebaitship devolved on Smt.
Asharfi Devi under the will of her husband, Shri Purushottam Lal dated April 14, 1944.
This will had not restricted the property in any manner in shebaitship bequeathed to Smt.
Asharfi Devi could therefore make a will in respect of shebaitship.
[383B C] 2.
It is not necessary, to express any opinion on the correctness or otherwise of the views expressed in K.K. Ganguli vs Panna Banerjee, ;
|
iminal Appeal No.397 of 1993.
From the Judgment and Order dated 11.7.90 of the Calcutta High Court in Crl.
Revision No. 1453 of 1987.
D.N. Mukherjee, D. Sinha and J.R. Das for the Appellant.
Sukumar Guha and A.K. Sengupta for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
In this appeal by special leave two questions arise for our consideration, namely, (i) whether a Special Court constituted under Section 12A of the (hereinafter called 'the Act ') is empowered to exercise powers under sub section (5) of Section 167 of Code of Criminal Procedure, 1973 ( 'the Code ' for short) in relation to an accused person forwarded to it under clause (b) of sub section (1) of section 12AA of the Act? and (ii) whether a Special Court can, notwithstanding the fact that the charge sheet has been filed after the expiry of the period of six months from the date of arrest of the accused person or the extended period, take cognizance of the offence and proceed to try and punish the accused person? These two questions arise in the backdrop of the following facts.
A police party headed by an Inspector of Police raided the business premise 574 and godown of the respondents on March 16, 1984 and in the presence of respondent Faguni Dutta seized certain essential commodities stored in contravention of certain orders issued under section 3 read with section 5 of the Act.
The accused Falguni Dutta was arrested on the same day for the commission of an offence punishable under section 7(1) (a) (ii) of the Act but the charge sheet was submitted after the expiry of the period of six months from the date of arrest on September 30, 1986.
The learned Judge presiding over the Special Court Constitute of under section 12A of the Act took cognizance of the offence on March 13, 1987 on the basis of the charge sheet submitted under section 173 of the Code.
Thereupon the accused persons moved an application before the learned Special Judge for quashing the proceedings on the ground that since the case was triable as a summons case in view of section 12AA(1) (f) of the Act, clause (5) of section 167 of the Code was attracted which enjoined that the proceedings be dropped.
The learned Special Judge relying on a decision of a learned Single Judge of the High Court in Kanta Dev vs The State of West Bengal (1986) Calcutta Criminal Law Reporter 158 = (1986) 1 CHN 267 rejected the application on July 24, 1987 holding that the provision of section 167 (5) of the Code had no application to a case initiated for the commission of an offence punishable under section 7 (1) (a) (ii) of the Act.
We may incidentally point out that the same view was expressed in Babulal Agarwal vs State (1987) 1 CHN 218.
Being aggrieved by the rejection of the application the accused preferred a Revision Application to the High Court challenging the legality of the said order.
A learned single Judge of the High Court placing reliance on a Division Bench decision of the High Court of Andhra Pradesh in the case of Public Prosecutor, High Court of Hyderabad & etc.
vs Anjaneyulu and etc.
held that sub section (5) of section 167 of the Code stood attracted and the learned Special Judge ought to have stopped the further investigation on the expiry of six months and ought to have discharged the accused.
He, therefore, set aside the order of the learned Special Judge and also quashed the prosecution and discharged the accused.
It is against this order of the High Court that the present appeal is preferred.
We may incidently mention that when the learned Single Judge was disinclined to follow the earlier two decisions of other learned single Judges of the High Court the proper course was to refer the matter to a Division Bench for decision.
however, has now lost significance in view of the subsequent decision of the Division Bench in Jnan Prakash Agarwala vs State of WestBengal (1992) 1 CHN 213 taking a contrary view.
In the said case the Division Bench has taken the view which the learned Single Judge has taken in the present case.
We will deal with these decisions in some detail hereafter.
At the outset we deem it appropriate to notice the relevant provisions of the 575 concerned statutes.
The Act was enacted to provide, in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, certain commodities.
Section 3, inter alia, lays down that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating and prohibiting the production, supply and distribution thereof and trade and commerce therein.
By section 4 it is provided that an order made under section 3, may, confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government and may contain directions any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such duties.
The Central Government is empowered by section 5 to direct that the power to make orders or issue notifications under section 3, shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable, inter alia, by such State Government, as may be specified in the direction.
In exercise of the power so conferred certain orders were issued by the State Government in regard to certain essential commodities from time to time.
Section 7 prescribes the penalties for the contravention of any order made under section 3.
The relevant portion of section 7 with which we are concerned reads as under: "7 (1) If any person contravenes any order made under section 3, (a) he shall be punishable, (i) in the case of an order made with reference to clause (i) of subsection (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii)in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine.
In the present case the accused came to be charged under section 7 (1) (a) (ii) of the Act.
Having regard to the fact that the punishment prescribed for the said offence extends to seven years and fine, the case would fall within the definition of warrant case under section 2(x) of the Code.
This becomes evident if we read the definitions of 'summons case ' and ' warrant case ' together.
They are as under: 576 2 (w) Summons case means a case relating to an offence, and not being a warrant case.
2(x) Warrant case means a case relating to an offence, punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
" However, by Amending Act 18 of 1981 the Legislature, for dealing more effectively with persons indulging in antisocial activities like hoarding and blackmarketing and for combating the evil of inflationary prices, considered it necessary to make special provisions for a temporary period of five years (extended by another five years),namely, to provide: (i) for the control, in a summary way of all offences under the Act; and (ii)for the constitution.
for the purposes of such trial, of Special Courts, consisting of a Single Judge.
To achieve this objective section 12A was amended with a view to empowering the State Government for the purpose of providing speedy trial of the offences under the Act to constitute as many Special Courts as may be necessary for such area or areas to be to be specified in the notification.
Section 12AA which too was inserted by the said Amending Act begins with a non obstance clause and provides that all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence was committed or where there are more Special Courts than one in such area by one of them as may be specified in this behalf by the High Court.
Clause (b) of sub section (1) of section 12AA next provides that where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub section (2) or subsection (2A) of Section 167 of the Code, such Magistrate may authorise the detention of such person such custody as he thinks fit for a period.
not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where such Magistrate is an Executive Magistrate unless his detention for such period is unnecessary.
Clause (c) of that sub section is relevant for our purpose and may be extracted: "(c) The Special Court, may, subject to the provisions of clause (d) of this Section, exercise, in relation to person forwarded to it under clause (b), the said power which a Magistrate having jurisdic 577 tion to try a case may exercise under section 167 of the Code in relation to an accused person in such case who has been forwarded to him under this section.
" Sub clause (d)provides that no court other than the Special Court or the High Court shall release an accused on bail.
Sub clause (f) of this sub section is also relevant and reads as under: "(f) All offences under this Act shall be tried in a summary way and the provisions of sections 262 to 265 (both inclusive) of the Code shall.
as far as may be.
apply to such trioal; Provided that in the case of any conviction in a summary trial under this section it shall be lawful for the Special Court to pass such sentence of imprisonment for a term not exceeding two years.
" It will thus be seen that while the penalty provided for an offence under section 7(1) (a) (ii) extends to seven years and fine, by virtue of clause (f) of subsection (1) of section 12AA if the offence is tried in a summary way applying the provisions of sections 262 to 265 of the Code the penalty would be restricted by the proviso to a maximum of two years, which would, it is argued, bring the case within the meaning of a 'summons case ' as defined in section 2(w) of the Code, thereby attracting sub section (5) of section 167 of the Code.
It would be advantageous to reproduce sub section (5) of section 167 of the Code.
It reads as under: "If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary.
" To complete reference to the provisions of the Act we may also state that section 10A posits that notwithstanding anything contained in the Code, every offence punishable under the Act shall be cognizable and non bailable.
Section 11 provides that cognizance of an offence under the Act shall be taken only on a written report.
Section 12AC makes the provisions of the Code applicable to proceedings be fore a Special Court unless otherwise provided.
These, in brief are 578 the relevant provisions of the Act and the Code with which we are concerned.
It may here be mentioned that section 12A was first inserted by Amendment Act of 1964.
It then empowered the Central Government to specify any order under section 3 to be a special order the contravention whereof may be tried summarily to which the provisions of sections 262 to 265 of the Code were made applicable.
The proviso stipulated that in the case of conviction in a summary trial it shall be lawful for the Magistrate to pass a sentence of imprisonment not exceeding one year, Subsequently by Amendment Act 18 of 198 1.
section 12A was substituted by the present provisions and new sections 12AA to 12AC were inserted.
The avowed object of these legislative changes was expeditious disposal of offences under the Act by Special Courts employing summary procedure and applying the provisions of the Code to such trials save as otherwise provided.
This enabled the Special Courts to take cognizance of the offences under the Act without a formal order of commitment.
It thus becomes clear from the plain language of the provisions introduced by Act 18 of 1981 that the legislature desired to ensure that all offences under the Act were tried by the Special Court Constituted under Section 12A in a summary manner applying the provisions of sections 262 to 265 of the Code and further provided that in case of conviction the sentence shall not exceed two years, bringing the offence within the definition of a summons case under the Code.
But for the insertion of section 12A in its present form and section 12AA, the offence under section 7 (1) (a) (ii) of the Act would have attracted the definition of a warrant case.
It is, therefore, obvious that the Amending Act 18 of 1981 has brought about a substantial change.
The position in law as emerging after the amendment of the Act by Act 18 of 1981 is crystal clear, namely, that on the constitution of special Courts all offences under the Act are triable only by the Special Court for the Area in which the offence has been committed.
Section 12AA (1) (b) provides that where a person accused of an offence under the Act is forwarded to a Magistrate under subsection (2) or sub section (2A) of section 167 of the Code, such Magistrate is empowered to authorise the detention of such person in such custody as he thinks fit for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where he is Executive Magistrate.
Clause (c) of that sub section provides that the Special Court may exercise in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section.
Section 12AC says that the provisions of the Code shall apply to proceedings before a Special Court save as otherwise provided in the Act.
A conjoint reading of these provisions makes it clear, that after the constitution of 579 Special Courts all offences under the Act have to be tried by that court in a summary way by applying the provisions of sections 262 to 265 (both inclusive) of the Code.
The proviso places a fetter on the power of the Court in the matter of passing a sentence on conviction, namely, that notwithstanding the fact that section 7 (1) (a) (ii) prescribes a punishment extending upto seven years and fine, Special Court shall not pass a sentence of imprisonment for a term exceeding two years.
It is this proviso which attracts the definition of a summons case, the trial whereof must be undertaken in accordance with the procedure out lined in Chapter XX of the Code.
Chapter XXI of the Code deals with Summary Trials.
Section 262 of the Code which outlines the procedure for summary trials in terms states that the procedure specified in the Code for the trial of summons case shall be followed, except otherwise provided.
Section 16.7 (5) says that if in any case triable as a summons case, the investigation is not concluded within a period of six months from the date on which the accused came to be arrested.
the Magistrate shall make an order stopping further investigation into the offence unless the Magistrate, for special reasons and in the interests of justice considers it necessary to permit continuation of the investigation.
The prosecution in question being a summons case triable in a summary manner as per procedure outlined in sections 262 to 265 of the Code, which in turn attracts the procedure meant for summons case, it is obvious that the power conferred by sub section (5) of section 167 can be invoked by the Special Court by virtue of clause (c) of section 12AA (1) of the Act which in terms states that the Special Court may exercise the same powers which a Magistrate may exercise under section 167 of the Code.
Thus a special Court is expressly empowered by clause (c) of section 12AA (1) to exercise the same powers which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code in relation to an accused person who has been forwarded to him under that provision.
We have, therefore, no manner of doubt that the High Court was right in concluding that section 167 (5) of the Code was attracted in the present case and the Special Court was entitled to exercise the power conferred by that sub section.
That being so the view taken by the Division Bench of the Calcutta High Court in the case of Jnan Prakash (supra) insofar as it relates to the application of section 167 (5) to an offence under section 7 (1) (a) (ii) of the Act triable by the Special Court constituted under section 12A of the Act cannot be doubted.
That is also the view of the High Court of Andhra Pradesh in the case of Public Prosecutor, High Court of Hyderabad (supra).
Therefore, the Special Court can stop further investigation into the offence if the investigation is not concluded within a period of six month from the day of arrest of the accused person unless for special reasons and in the interest of justice the continuation of the investigation beyond that period is necessary.
In the present case the officer making the investigation had not sought the permission of the Special Court to continue with the investigation even after the expiry of six months.
The object of 580 this sub section clearly is to ensure prompt investigation into an offence triable as summons case to avoid hardship and harassment to the accused person.
Both the High Courts of Calcutta and Andhra Pradesh have taken the view that after the amendment of the Act by Act 18 of 1981 and the introduction of section 12AA the power conferred on the Magistrate under section 167 (5) of the code is exercisable by the Special Court constituted under section 12A of the Act.
We also concur with the High Court of Calcutta that the two decisions rendered by the learned Single Judges of that Court earlier in point of time did not lay down the correct law.
Similarly the Division Bench of the High Court of Andhra Pradesh was also right in holding that sub section (5) of section 167 of the Code would be applicable to prosecutions under the Act triable by the Special Court.
The taxes us to the question whether the Special Court can,beside directing stoppage of investigation, entertain and act on a charge sheet or a police report submitted under section 173 (2) of the Code in such cases.
The expression 1 police report ' has been defined under the Code to mean a report forwarded by a police officer to a Magistrate under sub section (2) of section 173 [section 21.
Section 173 lays down that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government.
It will thus be seen that the police report under section 173(2) has to be submitted as soon as the investigation is completed.
Now, if the investigation has been stopped on the expiry of six months or the extended period, if any by the Magistrate in exercise of power conferred by sub section (5) of section 167 of the Code, the investigation comes to an end and, therefore, on the completion of the investigation section 173(2) enjoins upon the officer in charge of the police station to forward a report in the prescribed form.
There is nothing in sub section (5) of section 167 to suggest that if the investigation has not been completed within the period allowed by that sub section, the officer in charge of the police station will be absolved from the responsibility of filing the police report under section 173(2) of the Code on the stoppage of the investigation, The High Court of Andhra Pradesh rightly observed in paragraph 13 of the Judgment as under: "Under the new Code in addition to definition for investigation ' in section 2(h), a separate definition for 'police report ' is given by section 2(r).
This coupled with the newly introduced sub section (5) of section 167 brings out the distinction between investigation by the police and the police report on which a court is to take cognizance.
The report cannot now be said to be an integral part of 581 investigation.
The introduction of section 167 (5) in the Code, cannot have the effect of invalidating the investigation done within the period of six months or enabling the court to stopping the filing of police report under section 173 (2).
If the investigation done during the period of six months discloses an offence, a police report may be founded on it and the court can take cognizance of the same." in Hussainara Khantoon & Ors.
vs Home Secretary State of Bihar, Patna 1 9791 3 SCR 760 this Court held that the investigation done within the period of six months is not rendered invalid merely because the investigation is not completed and further investigation is stopped.
The exact words used are: ". . in such a case the Magistrate is bound to make an order stopping furthe r investigation in that event, only two courses would be open: either the police must immediately proceed to file a chargesheet, if the in vestigation conducted till then warrants such a course, or if no case for proceeding against the under trial prisoner is disclosed by the investigation, the undertrial must be released forthwith from detention.
" We, therefore ,concur with the view taken by the Andhra Pradesh High Court in this regard.
In the result we partly allow this appeal.
While we agree with the view taken by the High Court of Calcutta that in the case of an offence punishable under section 7(1) (a) (ii) of the Act which is tried by a Special Court constituted under section 12A, the provision of sub section (5) of section 167 of the Code gets attracted if the investigation has not been completed within the period allowed by that sub section but we find it difficult to sustain that part of the order of the High Court by which the order of the Special Court taking cognizance of the offence on the police report, i.e., charge sheet submitted under section 173 (2) of the Code came to be quashed.
We set aside that latter part of the order and hold that the Special Court was competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof.
We, therefore, direct that the Special Court will proceed with the trial from that stage onwards and complete the same as early as possible in accordance with law.
Appeal partly allowed.
| A petition was filed in this court by Imams for enforcing their fundamental right against exploitation by Wakf Boards.
Their claim was based on the glaring disparity between the nature of work and the amount of remuneration.
The petitioners sought a direction to the Central and State Wakf Boards to pay them basic wages.
A higher pay scale was claimed for degree holders.
The Union of India and various State Wakf Boards disputed the manner of their appointment, their right to receive any payment, and absence of any relationship of master and servant.
It was variously contended that they were appointed by Mutwallis, or in some cases by the people of the locality where the mosques were situated, and not by the Wakf Boards; that under Islamic religious practice it is voluntary service and there is no entitlement to emoluments; that a certificate from a registered institution is not a necessary requirement for leading in prayer.
It was further contended that the Wakf Boards faced financial difficulties.
The Punjab Wakf Board stated that Imams of mosques in Punjab, Haryana and Himachal Pradesh were paid on the basis of their qualification.
A pay scale was indicated, and the Imams were paid regularly and treated as regular employees.
Allowing the petition, this Court, HELD:(1) By Section 15 of the , the Wakf Board is vested not only with supervisory and administrative powers over the Wakfs but even the financial power vests in it.
One of the primary duties is to ensure that the income from the Wakf is spent on carrying out the purposes for which the 743 Wakf was created.
Mosques are Wakfs and are required to be registered under the Act, over which the Board exercises control.
Purpose of their creation is community worship.
The principal functionary to undertake it is the Imam.
It is the responsibility of the Wakf Board to ensure proper maintenance of religious service in a mosque.
To say, therefore, that the Board has no control over the mosque or Imam is not correct.
(747 G H, 748A) (2) In a series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity.
It is too late in the day to urge that since Imams perform religious duties, they are not entitled to emoluments.
(748 E) (3) Financial difficulties of the institution cannot be above fundamental right of a citizen.
If the Boards have been entrusted with the responsibility of supervising and administering the Wakf then, it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque, the very purpose for which it is created.
(748 H) (4) The Union of India and the Central Wakf Board are to prepare a scheme within a period of six months in respect of different types of mosques: (7497 H) The scheme shall take guidance from the scale of pay prevalent in the State Punjab and Haryana.
(749 D) Mosques under control of the government will not he governed by this order except if their Imams are not paid any remuneration and have no independent means of income.
The Government may then fix their emoluments on the basis as the Central Wakf Board may do for other mosques.
(749 C) The State Boards shall ascertain the income of each mosque and the number and nature of Imams required full time or part time and their payment is directed.
(749 E) The scheme shall take account of mosques which are small, or in the rural area, or which have no source of income and find 744 ways to raise income.
(749 G) The order for payment to Imams shall come into operation from 1 December 1993.
Every State Board shall implement the scheme.
(749 H, 750 A)
|
Appeal No. 850 of 1974.
From the Judgment and Order dated 24.9.1973 of the Punjab and Haryana High Court in Income Tax Reference No. 21 of 1972.
S.T. Desai, M/s. J.B. Dadachanji, Harish Salve, P.K. Ram and Mrs. A.K. Verma for the appellant.
V.S. Desai, Gauri Shankar and Miss A. Subhashini for the respondent.
The Judgment of the Court was delivered by TULZAPUKAR, J.
This appeal raises the question of granting registration to the appellant firm (the assessee) under section 26 A of the Income Tax Act, 1922 for the Assessment Year 1961 62.
The taxing authorities, the Tribunal and the High Court have refused registration sought by the appellant firm and hence this appeal.
Prior to the Assessment Year 1961 62 the appellant firm was a partnership concern consisting of two partners, Shri Pal Singh and Shri Sadhu Singh, each having 50% share in the profits and losses of the firm and it was being granted registration.
It appears that the two partners met with an accident on 19.10.1958 in which Shri Pal Singh suffered a serious head injury and lost his memory for quite some time while Shri Sadhu Singh suffered an injury to the spinal cord which rendered him invalid for quite a long time and the case put forward was that as the business was on extensive scale and the two partners were physically handicapped (they recovered during the meantime) they entered into a fresh Deed of Partnership on 1.4.1960 by virtue of which Pal Singh and Sadhu 168 Singh of the one part and Sarvashri Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh of the second part became partners with the following share ratio in the profits and losses, namely, Pal Singh and Sadhu Singh the original two partners retained 25% share each while Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh were given 12 1/2% share each.
Admittedly two of the new incoming partners, namely Surjit Singh and Gulzar Singh were relate to Pal Singh being his son and brother respectively who were obviously accommodated within the 50% share originally owned by Shri Pal Singh while the other two incoming partners Hari Singh and Harbans Singh were related to Shri Sadhu Singh both being his brothers who were accommodated within the 50% share originally owned by Sadhu Singh.
Moreover, prior to April 1, 1960 Hari Singh and Harbans Singh were already working as employees in the original firm.
At this stage it will be convenient to indicate some of the salient clauses of the Partnership Deed entered into between the parties on 1.4.1960.
Under cl. 1 the partnership was declared to be one at will determinable by one month 's notice in writing and under cl. 3 the parties of the second part (i.e. the four new incoming partners) were not required to contribute any capital but the original two partners were to do so in equal shares.
Clause 4 provided that Shri Hari Singh and Shri Harbans Singh shall continue to draw their salaries or other remuneration from the firm as was being drawn by them along with any increment as agreed to by the parties of the first part (the original two partners) from time to time.
Clause 5 was significant as it provided that the four new incoming partners "shall not interfere in the management or the affairs or the accounts of the partnership business." Under clause 7 it was provided that none of the four new incoming partners shall sell, mortgage, hypothecate, gift or will away or alienate in any way whatsoever his share to any third person and that in case of need they shall alienate their shares in favour of the parties of the first part (the two original partners) only and not even to any one amongst them.
It was further provided that in case of a dispute among the partners regarding any of the clauses of the deed the decision of the partners of the first part (two original partners) shall be final and conclusive and binding and shall not be called into question in any court of law.
169 For the Assessment Year 1961 62 (the relevant accounting year in respect whereof ended on March 31, 1961) an application duly signed by all the partners seeking registration of the firm under sec.
26 A on the strength of the aforesaid Deed of Partnership was made on 15th September, 1960 and the original Partnership Deed was annexed thereto.
The four new incoming partners were examined by the I.T.O. and their statements were recorded which, the I.T.O. felt, clearly suggested that they were not real partners but dummies brought in to avoid the higher tax incidence.
After considering the several clauses contained in the partnership deed, the statement of the four new incoming partners and the surrounding circumstances including the fact that profits had not been shown to have been distributed in the books and no entries made in the year of account, the I.T.O. rejected the application principally on two grounds: (a) that in law no valid partnership had been created inasmuch as the element of mutual agency was lacking and (b) factually no genuine firm has come into existence inasmuch as the four new incoming partners were y dummies.
Registration was also refused on two other grounds, namely, there was a breach of the terms of the Partnership Deed in that, even in the absence of a provision in that ; behalf, salary and remuneration were credited in the personal r accounts of the two original partners Pal Singh and Sadhu Singh and there was non compliance of income tax rules.
In appeal preferred by the assessee the Appellate Assistant Commissioner after discussing the several issues at great length confirmed the I.T.O. 's order refusing registration.
In the further appeal preferred by the assessee to the Tribunal the view of the A.A.C. was confirmed by the Tribunal but in doing so the Tribunal expressed the view that four new incoming partners were benamidars of Shri Pal Singh and Shri Sadhu Singh.
At the instance of the assessee the following three questions were referred to the High Court for its opinion.
(1) Whether on the facts and in the circumstances of the case and on a true construction of the instrument of partnership dated 1st April 1960 a valid partnership came into existance? (2) Whether on the facts and in the circumstances of the case the assessee is entitled to registration under section 26 A of the Income Tax Act, 1922 read with Rule 6 of the Income Tax Rules, 1922? and 170 (3) Whether on the facts and in the circumstances of the case and in view of the fact that the parties of the second part have been found to be benamidars of the parties of the first part the assessee firm is entitled to the grant of regis tration? The High Court felt that the first question referred to it by the Tribunal did not bring into focus the real issue that arose between the parties and therefore the same was required to be recast or reframed and it reframed the question thus: Whether on the facts and in the circumstances of the case, and on true construction of the instrument of partnership dated 1st April, 1960 there is a genuine partnership, and whether the finding that there is no genuine partnership is based on evidence?" After considering the entire material on the record as also the rival contentions urged before it by counsel on the either side the High Court answered the first question in favour of the department and against the assessee, that is to say, it held that no genuine partnership had come into existence and that the finding of the lower authorities in that behalf was based on ample material on record.
The second question was also answered in the negative in favour of the department and against the assessee.
As regards the third question it was answered in favour of the assessee and it was held that the mere fact that the four new incoming partners were found to be benamidars of the two original partners could not be a proper ground for refusing registration.
However, in view of its answers to the first two questions particularly the first question as reframed refusal of registration was upheld by the High Court.
This refusal to grant registration for the assessment year 1961 62 has been challenged by the appellant firm (assessee) in this appeal and counsel for the assessee raised three or four contentions in that behalf.
On the aspect of the firm 's validity in law counsel contended that the view taken by the taxing authorities as well as the Tribunal that no valid partnership in law had come into existence for lack of mutual agency has proceeded on a misconstruction of section 4 of the Partnership Act as also clause 5 of the Partnership Deed in question; according to him so far as the element of mutual agency is concerned all that is required to constitute a valid firm under section 4 is that the business must be carried on by all 171 or any of them acting for all and therefore, if the control and management of the business of the firm was left by agreement between the parties in the hands of even one partner to be exercised by him on behalf of the others the legal requirement could be said to have been satisfied and clause 5 of the Partnership Deed in question vests such control and management with two partners (the two original partners) who would be acting on behalf of all and the mere exclusion of the four new incoming partners from such control and management cannot affect the validity of the firm and in this behalf counsel relied on a decision of this Court in K.D. Kamath and Co. vs C.I.T. Mysore, 82 I.T.R. 680.
In other words counsel urged that if clause 5 of the Deed is properly read it could not be said that there was any lack of the element of mutual agency.
On the aspect whether a genuine firm had come into existence or not counsel urged that the Tribunal had not recorded any clear finding but had merely proceeded on the basis that no valid firm in law had come into existence but the High Court went out of its way to deal with the question of genuineness of the appellant firm by recasting or reframing the first question referred to it, and recorded an adverse finding thereon which should not have been done by the High Court.
Counsel further pointed out that the Tribunal had erroneously taken the view that because four new incoming partners were benamidars registration could not be granted and he urged that the High Court, having reversed that view, ought to have held that the assessee was entitled to registration under section 26 A of the 1922 Act; and in this regard counsel pointed out that the position under the 1961 Act is different in view of the Explanation that has been inserted in section 185 of that Act but in the absence of any similar provision in the 1922 Act the position was well settled that a firm could not be denied registration merely because some of its partners were benamidars of others and in that behalf reliance was placed on a decision of this Court in C.I.T. Gujarat vs A.Abdual Rahir and Co. 55 I.T.R. 651.
Counsel further urged that undue emphasis was laid on the fact that profits of the previous year ending March 31, 1961 had not been divided or distributed among all the partners by making requisite entries in the books in the year of account and registration was wrongly refused on this basis, though profit and loss account and balance sheet worked out on loose sheets of papers (which were unsigned) had been submitted before the authorities; according to counsel it is not necessary that the requisite entries pertaining to such division or distribution of profits 172 (or losses, if any) should be made in the books in the selfsame year of account and statement prepared by way of profit and loss account and balance sheet for working out such distribution among the partners should have been regarded as sufficient evidence of actual division of profits and in this behalf counsel relied upon a decision of the Orissa High Court in Rao & Sons vs C.I.T. Bihar and Orissa, Further counsel pointed out that such division or distribution had been by making the relevant entries in the assessee 's books on the first day of the following year and books pertaining to the following year containing such entries were produced before us at the hearing.
In substance counsel 's contentions were that the refusal to grant registration to the extent that it was based on the ground that no valid partnership in law had come into existence was clearly unsustainable, that there was no evidence to justify the finding on the genuineness of the appellant firm and that the High Court having held that registration could not be refused merely on the ground that some of the partners were benamidars registration ought to have been granted to the assessee.
On the other hand counsel for the revenue supported the refusal of registration by contneding that even if a valid partnership in law could be said to have been brought into existence by executing the Deed in question it was open to the taxing authority to refuse registration on the ground that factually no genuine firm had come into existence inasmuch as the two grounds were quite distinct from each other and therefore assuming that some fault could be found with the finding of the lower authorities on the question of validity of the appellant firm in law the refusal to grant registration should not be interfered with as the adverse finding on the genuineness of the appellant firm, for which there was ample evidence on record, was sufficient to justify the order.
As regards the reframing of the first question counsel urged that it is well settled that it is open to the High Court to reframe or recast a question formulated by the Tribunal before answering it so as to being out the real issue between the parties and since in this case the question No. 1 as formulated by the Tribunal presumed or assumed the factual existence of the appellant firm (which were very much disputed before the taxing authorities) the High Court reframed it so as to bring into focus the real issue between the parties namely, whether a genuine firm had been constituted or not.
Further counsel for the revenue pointed out that the High Court had rightly observed that the Tribunal had, though in a circuitous 173 manner, taken the view that the appellant firm had not genuinely come into existence.
Counsel agreed that under the 1922 Act no provision similar to the Explanation to sec.
185 of the 1961 Act obtained and further fairly conceded that the fact that some members were benamidars of others in a firm could be no bar to the grant of registration as held in Abdul Rahim & Co. case (supra) but contended that the said aspect was not decisive of the matter and pointed out, as held that very decision, that notwithstanding the said fact the firm must be found to be otherwise genuine and therefore if the taxing authorities were to record an adverse finding on the factual genuineness of the firm registration could be refused.
On the point of actual division or distribution of profits counsel urged that the lower authorities were justified in not relying on loose sheets indicating the working of such distribution especially when the sheets were unsigned and hence unauthentic and the assessee cannot be allowed to fill the lacuna by producing books for the following year in the fifth Court.
On the aspect of the genuineness of the firm requisite for the grant of registration counsel relied upon two old decisions in Haji Ghulam Rasul Khuda Baksh vs C.I.T. Punjab, and Bafi Zabdul Gafoor and others vs C.I.T.C.P. & U.P., 7 I.T.R. 625 which have been subsequently followed in P.A. Raju Chettiar and Brothers vs C.I.T. Madras, and Hiranand Ramsukh vs C.I.T. Hyderabad, Counsel for the revenue therefore, pressed for the dismissal of the appeal.
On a consideration of the entire material on record and on giving our anxious thought to the rival submissions made by counsel on either side we are of the opinion that in the ultimate analysis the real controversy in the appeal centres round the question whether or not factually a genuine firm had come into existence for the Assessment Year 1961 62 as a result of the execution of the instrument of partnership on April 1, 1960 and whether for recording a negative finding thereon against the assessee as done by the lower authorities there was evidence on the record? This being the real issue which was not reflected in the first question formulated by the Tribunal the High Court in our view was justified in reframing that question.
It is true that the taxing authorities and the Tribunal did go into the question of the appellant firm 's validity in law but it cannot be disputed that the concept of a firm being valid in law is distinct from its factual genuineness and for the purpose of granting registration both the aspects are relevant and must be present and one without 174 the other will be insufficient.
In other words, even if a firm brought into existence by executing an instrument of partnership deed is shown to possess ail the legal attributes it would be open to the taxing authority to refuse registration if it were satisfied that no genuine firm has been constituted.
Moreover, some of the provisions contained in such instrument may not militate against the firm 's validity in law but these can be a pointer against its factual genuineness.
The instant case is clearly a case of that type.
For instance, Clause 5 of the Partnership Deed in question which vests the control and management of the partnership business in the original two partners and denies to the four new incoming partners any right in the management or the affairs of the accounts of the partnership business may not show lack of the element of mutual agency but surely has a vital bearing on the factual genuineness of the firm and read along with other provisions like Clauses 3, 6, 7 and 8 would go a long way to show that the four new incoming partners were not real partners but were dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new incoming partners were very close relatives of the two original partners and that two of them were working as employees in the erstwhile firm whose services as such were continued in the relevant year on existing remuneration with such increments as the two original partners may agree to give cannot be lost sight of.
In addition to these aspects the statements of the four new incoming partners that were recorded in November 1965 clearly show that they had signed the instrument mechanically without knowing or reading, much less after understanding the implications thereof as we shall indicate presently.
For instance, Hari Singh in his statement has stated that he was not aware of the profits of the firm in any of the three accounting years 1960 61, 1961 62 and 1962 63; he asserted that for the relevant year 1960 61 the profit and loss account and balance sheet were prepared in the books and he had inspected these statements which assertions are obviously false because admittedly no such profit and loss account nor balance sheet was drawn up in the books.
When asked as to whether Pal Singh and Sadhu Singh had consulted the incoming partners before the Deed was written out and executed he has emphatically given a negative answer and has added that they (original partners) called all four of them and asked them to sign the Deed which they did.
Harbans Singh 175 in his statement admitted that he used to do the work of painting but could not say how many factories the firm was running nor did he remember the factory in which he used to do his work; he further asserted that no witnesses were called when the Deed was signed which is obviously a false assertion.
Surjit Singh who passed his Intermediate Arts in September 1960, B.A. in 1963 and LL.B. in 1965 has shown utter ignorance of even the share ratio in the profit and loss of the new incoming partners; he stated that he had two annas share in the profits but no share in the losses; when questioned as to how he knew that losses were not to be shared by him he stated that when he was a student of law he was taught that losses should never be shared; he admitted that he had never read the deed which clearly shows that he mechanically signed the document without even attempting to know what he was signing; he was also ignorant of the fact whether he had withdrawn his share of profit in the first year of the partnership, i.e. 1960 61.
Gulzar Singh stated that he was called from the village and was asked to sign the document which he did without bothering to know its contents; in fact he admitted that he knew nothing about the matter.
These answers given by the four new incoming partners clearly go to show that they were not real partners but mere dummies and the Deed appears to have been executed merely as a cloak to secure registration and thereby reduce the tax incidence.
Counsel for the assesee made much of the fact that profit and loss account and balance sheet prepared on loose sheets of paper had been submitted before the ITO and according to him these were wrongly rejected on the ground that requisite entries in regard to division or distribution of profits had not been made in the books in the self same year of account, which counsel urged, was not necessary.
It must, however, be mentioned that the profit and loss account statement so prepared on a loose sheet did not contain any distribution of profits and or allocation thereof to each one of the new partners but such distribution or allocation was indicated on a loose paper on which the balance sheet was prepared but even that loose sheet was an unsigned piece of paper and therefore, being unauthentic was rightly rejected by the taxing authority.
An attempt was made by counsel during the hearing of the appeal to produce before us the books of account pertaining to the following year in which on the opening day entries showing distribution of the earlier years 's profit had been made.
But the late production of such books has deprived 176 the taxing authorities an opportunity to make their comments thereon.
Apart from this aspect the question would be whether even such entries were genuine entries intended to be acted upon or mere paper entries making a show of allocation of the share of profits due to each one of these four new incoming partners and this would require further investigation into relevant facts.
In this context it will not be out of place to mention that from their statements it appears clear that none has made any withdrawal towards his share of profit in any of the three years, 1960 61, 1961 62, 1962 63 and even after the partnership had alleged to have been dissolved after 31.3.1963 and at least one of them Hari Singh stated that a sum of Rs.73,600 became due to him as his share of profits till dissolution and in spite of demand nothing had been paid to him till his statement was recorded in November 1965.
Only two of them drew their remuneration as the employees.
Considering their economic position it is difficult to appreciate that they would have needed no withdrawal from their share of profits in any year till the alleged dissolution.
This aspect throws considerable doubt on the point whether or not entries were intended to be acted upon.
Having regard to the aforesaid discussion it is clear that there was sufficient material on record on the basis of which the taxing authorities as well as the Tribunal could record an adverse finding on the genuineness of the firm against the assessee and registration in our view was rightly refused.
We might observe that there was nothing wrong on the part of the High Court to have confirmed the refusal of registration to the appellant firm even after holding that the fact that some members were benamidars of others was no bar to the grant of registration.
In A. Abdul Rahim and Co. 's case (supra) on which counsel for the assessee relied, the Tribunal had held that one of the partners who had been inducted into the erstwhile partnership was a benamidar of one of the three original partners but had otherwise held that the partnership was genuine and valid and therefore, this Court took the view that the mere fact that one member was a benamidar of another as no bar to the grant of registration and directed registration but the ratio would be inapplicable to a case where the firm is otherwise held to be not a genuine one.
In the result the appeal fails and is dismissed with costs.
A.P.J. Appeal dismissed.
| Prior to the Assessment Year 1961 62 the appellant f1rm was a partnership concern consisting of two partners, each having 50% share in the profits and losses of the firm and it was granted registration.
Both the partners met with an accident on 19.10.1958 in which they suffered serious injuries and became invalid.
On 1.4.1960 a fresh Deed of Partnership was executed by virtue of which the two original partners retained 25% share each while the four new incoming partners were given 12.1/2% share each.
Prior to April 1,1960 two of the new incoming partners were already working as employees in the original firm.
The fresh Partnership Deed, inter alia, provided that the partnership was at will determinable by one month 's notice in writing.
For the Assessment Year 1961 62 an application duly signed by all the partners seeking registration of the firm under section 26A of the Income Tax Act 1922 on the strength of the fresh Partnership Deed was made on 15th September 1960 annexing therewith the original Partnership Deed.
The four new incoming partners were examined by the Income Tax Officer and their statements were recorded, which, the ITO felt, clearly suggested that they were not real partners but dummies brought in to avoid the higher tax incidence.
After considering the Partnership Deed, the statement of the four new incoming partners and the fact that profits had not been shown to have been distributed in the books and no entries made in the year of account, the ITO rejected the application and refused registration.
The view taken by the Income Tax Officer was confirmed by the Appellate Assistant Commissioner and by the Tribunal.
165 The Tribunal, however, was of the view that four new incoming partners were benmidars of the two original partners.
On Reference made to the High Court, the High Court felt that the first question referred to it did not bring into focus the real issue and, therefore, recast the same.
The High Court upholding the refusal of registration held: (1) that no genuine partnership had come into existence and that the finding of the lower authorities in that behalf was based on ample material on record; (2) that the assessee is not entitled to the registration under s.26A of the Income Tax Act, 1922 read with Rule 6 of the Income Tax Rules, 1922; and (3) that the mere fact that the four new incoming partners were found to be benamidars of the two original partners could not be a proper ground for refusing registration.
In the appeal to this Court on behalf of the appellant it was contended: (i) that refusal to grant registration to the extent that it was based on the ground that no valid partnership in law had come into existence was unsustainable; (ii) that there was no evidence to justify the finding on the genuineness of the appellant firm, and (iii) that the High Court having held that registration could not be refused merely on the ground that some of the partners were benamidars, registration ought to have been granted.
On behalf of the Revenue it was contended: (1) that even if a valid partnership in law came into existence by executing the Deed registration could be refused on the ground that factually no genuine firm had come into existence; (2) that it is open to the High Court to reframe or recast a question formulated by the Tribunal before answering it so as to bring out a real issue between the parties; (3) that the High Court had rightly affirmed the view of the Tribunal that the appellant firm had not genuinely come into existence; (4) that though under the 1922 Act no provision similar to the Explanation to Sec.185 of 1961 Act obtained and the fact that some members were benamidars of others in a firm could be no bar to the grant of registration, if the taxing authorities were to record an adverse finding on the factual genuineness of the firm registration could be refused; and (5) that so far as the actual division or distribution of profits, the lower authorities were justified in not relying on loose sheets indicating the working of the firm and the assessee cannot be allowed to fill the lacuna by producing books for the following year.
Dismissing the Appeal, 166 ^ HELD: 1.The concept of a firm being valid in law is distinct from the factual genuineness and for the purpose of granting registration both aspects are relevant and must be present and one without the other will be insufficient.
[l73 G] 2.
Even if a firm brought into existence by executing an instrument of partnership deed is shown to possess all the legal attributes it would be open to the taxing authority to refuse registration if it were satisfied that no genuine firm has been constituted.
Moreover, some of the provisions contained in such instrument may not militate against the firm 's validity in law but these can be a pointer against its factual genuineness.
[173 G H; 174 A] 3.
Clause 5 of the Partnership Deed in the instant case, vests the control and management of the partnership business in the original two partners and denies to the four new incoming partners any right in the management of the affairs or the accounts of the partnership business, may not show lack of the element of mutual agency but has a vital bearing on the factual genuineness of the firm and read along with Clauses 3,6,7 and 8 would go to show that the four new incoming partners were no real partners but were dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new incoming partners were very close relatives of the two original partners and that two of them were working as employees in the erstwhile firm whose service as such were continued in the relevant year on existing remuneration with such increments as the two original partners may agree to give cannot be lost sight of.
In addition, the statements of the four new incoming partners that were recorded in November 1965 clearly show that they had signed the instrument mechanically without knowing or reading, much less after understanding the implications thereof.
[174 A D] 4.
In the instant case, the profit and loss account statement prepared on loose sheet did not contain any distribution of profits and or allocation thereof to each one of the new partners.
[175 E] 5.
Production of account books in this Court has deprived the taxing authorities an opportunity to make their comments thereon.
Apart from this aspect the question would be whether even such entries were genuine entries intended to be acted upon or mere paper entries making a show of allocation 167 of the share of profits due to each one of these four new incoming partners and this would require further investigation into relevant facts.
This aspect throws considerable doubt on the point whether or not entries were intended to be acted upon.
[175 G H; 176 B] 6.
In the instant case, there was sufficient material on record on the basis of which the taxing authorities as well as the Tribunal could record an adverse finding on the genuineness of the firm against the assessee and registration was rightly refused.
[176 C]
|
l Leave Petition (Civil) No. 10784 of 1992 etc.
From the judgment and Order dated 13.3.1992 of the Central Administrative Tribunal, New Delhi in O.A. No. 262 of 1991.
M. K. Ramamoorthy, H.S. Gururaja Rao, R. Venkataramani, S.M. Garg, T.L. Roy, T.V. Ratnam, E.X. Joseph, D.N. Paul and M.M. Kashyap for the Petitioners.
D.N. Dwivedi, Addl.
Solicitor General, V.K. Verma and Ms. Ameeka Singh for the Respondents.
The Judgment of the Court was delivered by VENKATACHALA,J.
In these Special Leave Petitions, we are concerned with the Grievance of the employees belonging to the office of the Comptroller and Auditor General of India, working in the Railway Audit Department.
These employees who were Section Officers prior to 1st March, 1984, got promotion from that day as Assistant Audit Officers on a pay scale of Rs. 650 30 740 35800 EB 40 1040 and were designated as Officers 'Group B Gazetted '.
On the recommendations of the Fourth Pay Commission; the said pay scale of Assistant Audit Officers was revised to Rs. 2,000 3,200 from 1st January, 1986.
The grievance of the Assistant Audit Officers Group B Gazetted, is that the Indian Railways should not have denied to them the benefits, such as, issue of Railway Travel Passes/P.T.0s., allotment of Railway Quarters, giving of accommodation in Rest Houses/Retiring Rooms, taking of family members while on tour, etc.
admissible to Group B Gazetted Officers of the Railways.
The Principal Bench of the Central Administrative Tribunal, to be referred to herein after as "the Tribunal", which examined the said grievance, rejected it by order dated 13th March, 1992.
The grievance, so rejected by the Tribunal, is again ventilated in these Special Leave Petitions, seeking redressal therefor.
Since the facts which have given rise to the grievance, furnish the background, for examining its merit, it would be advantageous to advert to them at the 299 out set.
The Railway Board in its letter No. E(G) 58PS5 20/1 dated 14th April, 1960, addressed to the General Managers of the Indian Railways, spelled out its policy in the matter of issuance of Railway Passes/P.T.0s.
to the staff of the Railway Audit Department including the Indian Audit & Accounts Service Officers (IA&AS Officers) of that Department, thus: i.
The scale of Passes/P.T.0s.
and the rules governing their issue will be the same as applicable to Railway servants from time to time.
Passes/P.T.0s.
to IA & AS Officers, if are to be issued when they are proceeding on leave exceeding four months, they should have completed one year 's service in the Railway Audit Department and the Comptroller and Auditor General of India ought to assure by declaring that the Officers concerned will return to Railway Audit Department on the expiry of such Officers ' leave.
IA & AS Officers working in the Railway Audit Department will pot be entitled to grant of certificates which would entitle them to obtain travel concessions on Railways outside India.
Passes/P.T.0s.
will be issued by the Chief Auditors irrespective of home or foreign line.
It was mentioned in the above letter that the same was issued with the sanction of the President of India.
The policy contained in the above letter was followed by the Indian Railways for several years.
In the meantime, the Director of Audit, Central Railway, by his notice dated 19th December, 1983, made it known that the Central Government had, on the recommendations of the Comptroller and Auditor General of India, sanctioned higher scale of pay of Rs. 650 30 740 35 800 EB 40 1040 to 80 per cent of Section Officers on the staff of the Railway Audit Department and that scale of pay would become effective from 1st March, 1984.
It was indicated in that notice that the Section Officers on the staff of the Railway Audit Department getting such higher scale of pay, will have their designation as Assistant Audit Officers (Group B Gazetted).
Similar notice, it is said, was issued by the concerned Director of Audit of every other Zone of the lndian Railways.
The said scale of the pay of the Assistant Audit Officers (Group B Gazetted) came to be revised as Rs. 2,000 300 3,200 from 1st January, 1986 as per the recommendations of the Fourth Pay Commission.
Even then, the Assistant Audit Officers who Were designated as 'Group B Gazetted ' continued to have the privileges and facilities of 'Group B Officers of the Indian Railways.
However, by its letter No. E(W) 87PS51/3 dated 27th July, 1989 addressed to all General Managers, Indian Railways, the Railway Board referring to the creation of posts of Assistant Audit Officers in the Railway Audit Department and the incumbents in those posts having been given Group B Gazetted status, stated thus: "As a result of restructuring of the cadre of Indian Audit and Accounts Department, a number of posts of Assistant Audit Officers have been created in the scale of Rs. 2000 3200 and classified as Group 'B 'posts carrying a gazetted status.
The eligibility of these officers to various facilities as admissible to the Gazetted Officers on Railways in scale of Rs. 2000 3500 has been considered but the same has not been agreed to.
It has been decided that the Audit Officers in scale of Rs. 2000 3200 may be given the privileges and facilities viz. Passes/PTOs.
allotment of Railway Quarters and Rest Houses/retiring Rooms and taking family with them while on tour etc.
as admissible to the Railway Employees in identical scale of pay viz. Rs. 2000 3200.
" The said letter shows that it had been issued with the concurrence of the Finance Directorate of the Ministry of Railways.
But, the contents of the said letter were modified by a telegram, which read thus: "No. E(W)87PS51/3.
In partial notification of Ministry of Railway 's letter of even number dated 27.7.89 Ministry of Railway have decided that the Assistant Audit Officers given the Gazetted status between 1st March, 1984 and 31.12.1985 shall continue to enjoy the facility of passes, PTOS.
Quarters etc.
enjoyed by them as a result of conferring of the gazetted status on them during the period mentioned above (As personal to them.)" The said telegram makes it obvious that those Assistant Audit Officers in the Railway Audit Department who got Gazetted status between 1st March, 1984 and 31st December, 1985, shall alone be entitled to the facilities of Passes/P.T.0s.
, Quarters etc,and not those who got such Gazetted status after 31st December, 301 Then, there is the letter No. PCIV/86/ Imp./46 dated 30th October, 1987 issued by the Railway Board to the General Managers of the Indian Railways, which shows that the president of India had, consequent upon the revision of pay scales of the Central Government employees recommended by the Fourth Pay Commission, reclassified all the posts under the Indian Railways, thus: "Classification Description of Posts of posts Group A All posts in scale Rs. 2200 4000 and above.
Group B Posts in scale Rs. 2375 3500 applicable to accounts Officers only and other posts of Officers in scale Rs. 2000 3500(all Deptts.) Group C.
All posts in scales Rs. 825 1200 and above including posts of Post graduate Teachers (Selection Grade)/Head masters Middle School (Selection Grade)in scale Rs. 2000 3500, Supervisors in scale Rs. 2375 3500 and excluding those mentioned for Groups 'A ' and `B '.
Group D All posts in scales Rs. 750 940, Rs. 7751025 and Rs. 800 1150.
" The said classification of posts in the Indian Railways is done, as becomes clear from the said letter, consequent upon the introduction of Railway Services (Revised Pay) Rules, 1986.
In this context, it would be necessary to advert to the Railway Servants (Pass) Rules, 1986 made by the President of India under the proviso to Article 309 of the Constitution regulating the issuance of passes and Privileged Ticket Orders to Railway servants.
Meaning of 'railway servant for the purposes of the said Rules is given in clause (h) of Rule 2 thereof,.
thus: "railway servant ' means a person who is a member of a service or who holds a post under the administrative control of Railway Board and includes a person who holds a post in the Railway Board.
Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control do not come within the scope of this definition.
This term excludes casual labour for whom special 302 orders have been framed.
" Schedule II of the said Rules contains the classification (categorisation) of Railway servants into Group A, Group B, Group C and Group D and refers to certain privileges admissible to them.
That Schedule, which provides for issue of passes on privilege account to Railway servants puts Group A Group B Railway servants in one category.
Group C Railway servants are put in altogether a different category for the purpose of issue of passes to them.
From the said facts, it becomes clear that the Assistant Audit Officers in the Railway Audit Department, who hold the posts on the pay scale of Rs. 2,0003,200, although designated as Group B Officers, are not treated on par with Railway servants of the Indian Railways in the category of Group B Officers, to wit, the Railway servants holding the posts of Assistant Accounts Officers and other Officers on the higher pay Scale of Rs 2,000 3,500.
Therefore, the obvious reason for denial of the privileges conferred upon Group B Railway Officers under the Railway Servants (Pass) Rules, 1986, to Assistant Audit Officers of the Railway Audit Department, was the latter holding posts of lower pay scale of Rs. 2,000 3,200.
It was contended by the learned counsel for the petitioners that the Assistant Audit Officers working in the Railway Audit Department could not have been treated differently from Group B Officers of the Indian Railways in the matter of issue of privilege Passes/P.T.0s.
to them when the latter No. E. (G) 58PS5 20/1 dated 14th April, 1960 issued by the Railway Board with the sanction of the President, clearly laid down the policy that scale of Passes/P.T.0s.
and the Rules governing their issue will be the same as applicable to Railway servants from time to time.
It was also contended by them that the Railway Servants (Pass) Rules, 1986 issued by the President of India, since exclude the Assistant Audit Officers from 'B ' category Officers, they would be violative of Article 14 of the Constitution.
Lastly, it was contended by them that the decision of the Indian Railways that the Assistant Audit Officers of the Railway Audit Department, who were given the Gazetted status between 1st March, 1984 and 31 st December, 1985, alone shall continue to enjoy the facilities of Passes/P.T.0s., Quarters etc. has since resulted in denial of such facilities to the Assistant Audit Officers who were given the Gazetted status after 31st December, 1985, the same (decision) is violative of Article 14 of the Constitution.
We are unable to find merit in any of the said contentions urged on behalf of the Assistant Audit Officers in support of their grievance, for the reasons which we shall presently state.
303 The Assistant Audit Officers although working in the Railway Audit Department, are the Officers who are appointed by the Comptroller and Auditor General of India and work under his.
control and supervision.
No doubt, the Railway Board, as seen from its letter dated 14th April, 1960 adverted to earlier, had decided to give to the staff and Officers working in the Railway Audit Department the facilities admissible to Railway servants of comparable status.
It is not for us to go into the question whether it was obligatory for the Railways to confer such facilities on the staff and Officers of the Railway Audit Department, who in reality belong to the Department of Comptroller and Auditor General of India, inasmuch as that question is not required to be decided by us.
When the said letter dated 14th April, 1960, containing the Railway Board 's policy of issuance of Passes/P.T.0s.
is seen, it shows that the staff of the Railway Audit Department is treated more generously than the Officers of the same Audit Department in the matter of issuance of Passes/P.T.0s.
to them (Officers), in that, the issuance of passes to the latter category is made subject to certain restrictions.
No doubt, when certain Section Officers were promoted as Assistant Audit Officers and conferred the status of 'Group B Gazetted ' by the Comptroller and Auditor General of India, such Officers were treated notwithstanding their lower pay scale, on par with 'B ' Group Officers in the Indian Railways as regards privileges/facilities obtainable by them from the Railways.
But, when the scale of pay of the Assistant Audit Officers of the Railway Audit Department was revised on the recommendations of the Fourth pay Commission, the scale of pay of the Assistant Audit Officers, who had been designated as Group 'B ' Officers, by the Comptroller and Auditor General of India, fell short of the scale of pay of the Railway servants of the Railway Department classified as Group 'B ' Officers by the President of India.
It cannot be overlooked that it is the President of India, who made the Railway Services (Revised Pay) Rules, 1986, on the basis of the pay revision of the Central Government Servants, as recommended by the Fourth Pay Commission and it is again the order of the President of India, which classified the Railway servants into Group A, Group B, Group C, and Group D according to the minimum and maximum scale of pay of the posts held by them.
Indeed, it was not disputed on behalf of the petitioners that the Assistant Audit Officers of the Railway Audit Department who are on the pay scale of Rs. 2,000 3,200 are treated on par with the Railway servants (Officers) who are on the pay scale of Rs. 2,000 3,200 in matters of giving the facilities or conferring of privileges.
What has happened is that the Railway Servants (Pass) Rules, 1986, when are made, certain extra privileges relating to issuance of Passes/P.T.0s.
are conferred on Railway servants, that is, Officers in Group 'A ' and Group 'B ' However, Group 'B ' Railway servants, according to classification made by the president of India, on revision of their pay scales are those whose pay scales are Rs.2,000 3,500.
What is contended for on behalf of the Assistant Audit Officers, is that the fact that their 304 scale of pay is lower then Rs. 2,000 3,500 as applicable to `B ' Group Gazetted Officers of the Railways should be ignored and the status that is conferred upon them by the Comptroller and Auditor General of India as Group B Gazetted ' alone should form the basis to give them facilities or confer privileges on par with 'B ' Group Gazetted Railway servants.
The submission made on behalf of the Railways, was to the contrary.
According to the submission, the fact that the Assistant Audit Officers in the Railway Audit Department, on the pay scale of Rs. 2,000 3,200, are designated by the Comptroller and Auditor General of India as 'Group B Gazetted ' is not sufficient to equate them with Group B Officers of the Indian Railways who hold higher posts with scale of pay of Rs. 2,000 3,500.
If the Railways give the facilities and privileges to the Assistant Audit officers, who are not Railway servants, treating them on par with Railway servants of Group 'B ' they could find no valid reason to deny such facilities and privileges to the Railway servants holding posts on the pay scale of Rs. 2,000 3,200.
If that has to be done, the Indian Railways would be required to extend similar facilities and privileges to all Railway servants who hold posts in the Indian Railways on the scale of pay of Rs. 2,000 3,200.
It means extending the benefits to thousands of Railway servants involving heavy financial burden on the Indian Railways.
We find that the contentions raised on behalf of the Assistant Audit Officers, are unacceptable in that, if accepted, they would lead to unjust results of the Indian Railways conferring special privileges and facilities upon persons belonging to foreign Department of Comptroller and Auditor General of India, while their own servants who hold equivalent posts on the same scale of pay will be denied such privileges and facilities.
Therefore, there is substance in the submissions made on behalf of the Indian Railways that the grievance sought to be made out on behalf of the Assistant Audit Officers lacks merit and calls to be rejected.
We, accordingly, reject the contention advanced on behalf of the Assistant Audit Officers that they should be treated by the Indian Railways on par with Railway servants classified in Group 'B "in matters relating to the conferring of privileges and giving of facilities.
Again, when the Railway Servants (Pass) Rules, 1986, made in consonance with the classification of Railway servants, rightly made by the President of Indian consequent upon the Railway services (Revised Pay) Rules, 1986 issued under the proviso to Article 309 of the Constitution, confer facilities or privileges according to the class to which Railway servants belong, they cannot be treated as Rules which are violative of Article 14 of the Constitution.
Nor can they be regarded as arbitrary.
Hence, the contentions raised on behalf of the Assistant Audit Officers on the unsustainability of the Railway Servants (Pass) Rules, 1986 based on Article 14 of the Constitution, wan ant rejection as those lack in merit.
305 Coming to the last contention, viz, that the privileges given to and facilities conferred on the Assistant Audit Officers, who had been given the status of `Group B Gazetted by the comptroller and Auditor General of India, between 1st March, 1984 and 31st December, 1985, are discriminatory, all that we would wish to say is that even if such discrimination is brought about by the Railways in regard to the officers of the same category, that is, Assistant Audit Officers, such discriminatory treatment accorded to a small number cannot be availed of by the petitioners to obtain the benefit of such wrongly conferred privileges and facilities.
However, we do not consider it appropriate to pronounce upon the correctness of the conferment of such privileges and facilities on a small number of Assistant Audit Officers in these petitions, when they are not impleaded by the petitioners as party respondents, in these petitions.
Hence, we reject the last contention, as well.
We, therefore, find no good reason to disagree with the order of the Tribunal impugned in these Special Leave Petitions.
In the result, we dismiss these Special Leave Petitions.
However,.in the facts and circumstances of the cases we make no order as to costs.
SLPs dismissed.
| Petitioners were in service, under Comptroller and Auditor General of India (C & AG for short), as Assistant Audit Officers (A.A.O. for short) Group B Gazetted, in pay scale Rs. 2000 3200, and were working in Railway Audit Department, after December 31,1985.
In 1960, Railway Board spelled out its policy, stating that scale of passes/P.T.0s.
and the rules governing their issue to staff of the Railway Audit Department will be the same as applicable to Railway servants.
However some distinctions were made as regards Indian Audit and Accounts Service Officers (IA & AS Officers) of Railway Audit Department, on recommendations of the C & AG., Central Government sanctioned higher scale of pay effective from March 1, 1984, for 80 per cent of Section officers in the Railway Audit Department to be designated as A.A.Os (Group B Gazetted).
Their pay scale was revised to Rs. 2000 3200 from January 1, 1986, on recommendation of Fourth Pay Commission.
They continued to have the privileges and facilities of Group B Officers of Indian Railway.
In 1987, consequent to the revision of pay scales of Railway posts, on recommendation by the Fourth pay Commission, the posts under Indian Railways were re classified.
Posts in scale of Rs. 2000 3200 were classified as Group 'C ' instead of Group B.
In 1989, the Railway Board, in view of restructuring of cadre of Indian Audit and Accounts Department, creation of posts of A.A.Os in scale of Rs. 2000 3200, classified as Group B Gazetted status, issued instructions that Audit Officers in Scale of Rs. 2000 3200 may 297 be given privileges and facilities viz Passes/P.T.0s.
Quarters etc, as admissible to Railway employees in identical scale.
Consequently they were not entitled to the privileges and facilities admissible to gazetted Railway Officers.
classified in Group B in scale of Rs. 2000 3500.
However, Assistant Audit Officers given Gazetted status between March 1, 1984, and December 31, 1985 were allowed to continue to enjoy the facilities of Passes/p.
T.Os quarters etc.
Petitioners filed application before the Central Administrative Tribunal, Principal Bench, claiming that Assistant Audit Officers, given Gazetted status Group B after December 31, 1985, were also entitled to the privileges and facilities admissible to Railway Officers, classified 'Group B '.
The application was rejected by the Tribunal and the Petitions filed Special Leave petition seeking redressal.
This Court dismissed the special leave petition and, HELD: That conferring special privileges and facilities, to Assistant Audit Officers, which are not provided to Railway servants in identical pay scale would lead to unjust results.
It would result in conferring special privileges and facilities, by the Indian Railways to persons belonging to foreign department of Controller and Auditor General of India, while their own servants, who hold equivalent posts on the same scale of pay will be denied such privileges and facilities.
The Railway Board 's letter dated April 14, 1960 also shows that the staff of the Railway Audit Department is treated more generously than the officers (if the same Audit Department in matters of issuance of Passes/P.T.0s.
The Assistant Audit Officers, who had been given status of gazetted Group B, by the comptroller and Audit General, cannot be treated, by the Indian Railways on par, with Railway servants, classified group B. In matters relating to conferring privileges and giving of facilities.
The Railway Servant (Pass) Rules, 1986, made in Consonance with classification of Railway servants, rightly made by the President of India, consequent upon the Railway services (Revised Pay) Rules, 1986, issued under the proviso to Article 309 of the Constitution, confer facilities and privileges according to class to which Railway servants belong, they can not be treated as Rules violative of Article 14 of the Constitution.
Nor can they be regarded as arbitrary.
(303 C, 304 G) That even if discrimination was brought about by the Railways in regard to officers of the same category, that is, Assist Ant Audit Officers, such discriminatory treatment accorded to a small number cannot be availed of by the Petitioners, to obtain she benefit of such wrongly conferred privileges and facilities.
However, this Court did not consider it appropriate to pronounce 298 upon the correctness of the conferment of such privileges and facilities to the Assistant Audit Officers, given status of Gazetted Group B between March 1, 1984 and December 31, 1985, when they had not been impleaded as party respondents.
(305 A C)
|
Appeal No. 25 of 1969.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated December 11, 1968 of the Patna High Court in Election Petition No. 4 of 1968.
D. Goburdhun, for the appellant.
Birendra Prasad Sinha, S.K. Bagga, Harder Singh and section Bagga, for respondent No. 1.
Harder Singh, for respondents Nos. 2 and 3.
840 The Judgment of the Court was delivered by Hegde, J.
The principal question raised in this appeal under section 116A of the Representation of People Act, 1951 (to be hereinafter referred to as the Act) is as to the scope of section 23(3) of the Representation of People Act, 1950 (to be hereinafter referred to as the 1950 Act).
A few subsidiary contentions have also been canvassed.
They will be considered at the appropriate stage.
The election petition from which this appeal arises relates to the Darbhanga Local Authorities Constituency of the Bihar Legislative Council.
The calendar for the election for that constituency was as follows: 1.
Last date for filing nomination papers 2 4 1968.
Date of scrutiny of nomination papers 4 4 1968.
Last date for withdrawal of candidatures 6 4 1968.
Date of Poll 28 4 1968.
Date of declaration of result 29 4 1968.
Originally five candidates submitted their nomination for the election in question.
On scrutiny all of them were held to have been validly nominated.
Two of them later withdrew their candidatures within the period prescribed leaving in the field Shri Baidyanath Panjiar, the appellant herein, Shri Raj Kumar Mahaseth, respondent No. 2 and Shri Gangadhar, respondent No. 3.
There were six polling stations in the constituency.
134 votes were polled out of which 33 votes were polled at Dalsingsarai polling station.
Counting of the votes showed that the appellant had secured 45, the second respondent 49 and the third respondent 40, first preference votes.
As none of them obtained an absolute majority of the votes cast, the third respondent was eliminated and his second preference votes were taken into.
consideration.
14 of his second preference votes went to the appellant and 5 to the second respondent.
Therefore the appellant was declared elected.
His election was later challenged by the 1st respondent herein.
The High Court has set aside the election and declared the 2nd respondent elected on the ground that on counting the validly cast votes, the second respondent has secured more votes than the appellant.
It held that some of the votes Cast were not valid votes.
The controversy relating to the validity of some of the votes polled arose under the following circumstances.
In the electoral roll as it stood on the last date of filing nomination papers, the registered voters were only 123; 16 of the registered voters were of the members of Dalsingsarai Notified Area Committee.
On April 13, 1968, as per a notification under section 389(c) of the Bihar 841 and Orissa Municipal Act, 1922, 40 members were nominated as members to the said Notified Area Committee in place of the old members.
Most of them were newly appointed members.
To be exact 35 of the 40 members nominated were new members.
Thereafter the electoral roll was amended on the 27th April, 1968, just a day prior to the polling.
As per the amended electoral roll, there were 39 electors in the Dalsingsarai polling station.
Only four of them stood registered in the electoral roll as it stood on April 2, 1968.
12 of those who were electors under the original roll were removed from the roll.
33 out of the 39 electors included in the electoral roll relating to.
Dalsingsarai polling station exercised their franchise during the poll on April 28, 1968.
The question for consideration is whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over.
Provisions relating to the preparation of electoral rolls for the Legislative Councils ' Constituencies are found in Part IV of the 1950 Act.
Section 27(2) of the Act prescribes the mode of preparation of the electoral rolls regarding the local authorities constituencies of a Legislative Council.
Clause (e) of that sub section stipulates that provisions of sections 15, 16, 18, 22 and 23 shall apply in relation to local authorities ' constituencies as they apply in relation to assembly constituencies.
Section 22 deals with correction of entries in the electoral rolls.
Section 23 deals with the inclusion of names in the electoral rolls.
Sub section
(3) of that section provides that: "No amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nomination for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election.
" The object behind sub section
(3) of section 23 of the 1950 Act would be clear if we examine the scheme of the Act and the principles underlying that scheme.
Part III of the 1950 Act provides for the preparation of the electoral rolls for assembly constituencies.
Section 15 provides that for every constituency, there shall be an electoral roll which shall be prepared in accordance with the provisions of that Act under the superintendence, direction and control of the Election Commission.
Section 16 enumerates what disqualifications will disentitle a person from being enrolled as a voter.
Section 18 provides that no person shall be entitled to be registered in the electoral roll for any constituency more than once.
842 Section 18 enunciates the principle "one person one vote".
Section 22 provides for correction of entries in the electoral rolls.
Section 23 (1 ) permits a person whose name is omitted from the rolls to apply for inclusion.
Sub section (2) of section 23 authorises the electoral registration officer to include the name of the applicant in the rolls if he is satisfied that he is entitled to be registered.
The ,object of the aforementioned provision is to.
see that to the extent possible, all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls all those who are not qualified to be registered.
(3 ) of section 23 is an important exception to the rules noted earlier.
It gives a mandate to the electoral registration officers not to amend, transpose or delete any entry in the electoral roll of a constituency after the last date for making nominations for election in that constituency and before the completion of that election.
If there was no such provision, there would have been room for considerable manipulations, particularly when there are only limited number of electors in a constituency.
But for that provision, it would have been possible before the concerned authorities to so.
manipulate the electoral rolls as to advance the prospects of a particular candidate.
This would be more so if either all or a section of the electors are persons nominated to local authorities.
The legislative mandate like the one embodied in section 23(3) must be considered as mandatory not merely because of the language employed in that sub section but also in view of the purpose behind the provision in question.
In our opinion, cl.
23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date for making the nominations for election in that constituency and before the completion of that election.
Section 23(3) does not deal with any mode or procedure in the matter of registering the voters.
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances.
It puts a stop to the power conferred on them.
Therefore it is not a question of irregular exercise of power but a lack of power.
It was next urged by Mr. Goburdhan, learned Counsel for the appellant that section 23(3) of the 1950 Act is subject to section 27(2) of the same Act and therefore in view of the direction issued by the electoral registration officer to include the names of the electors in question, it was not open to the election petitioner to take any objection to the same.
We see no substance in this contention.
There is no conflict between sub section
(2) of section 23 and sub section
(2) of section 27.
In fact, as noticed earlier, the provisions of section 23 have been incorporated into section 27(2) in view of section 27(2)(e).
A fair reading of the various clauses in section 27(2) will make it clear that 843 the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election.
It was next urged that in view of section 62 (1 ) of the Act no valid.
objection can be taken to the franchise exercised by the electors whose names were included in the electoral roll on April 27, 1968.
Section 62 (1 ) says that "no person who is not, except as expressly provided by this Act, every person who is,.
for the time being entered in the electoral roll of any constituency shall be.
entitled to vote.
in that constituency.
" That provision no doubt stipulates that every person who is for the time being registered in the electoral roll of any constituency except as expressly provided by the Act shall be entitled to vote in that constituency.
The question is which is the electoral roll referred to in that section ? Is it the electoral roll that was in force on the last date for making nominations for an election or is it the electoral roll as it stood on the date of the polling ? For answering that question we have to go ' ' back to section 23(3) of the 1950 Act.
In view of that provision the electoral roll referred to in section 62 ( 1 ) of the Act must be understood to be the electoral roll that was in force on the last day for making* the nominations for the election.
It was next urged that even if we hold that in including fresh electors in the electoral roll on April 27, 1968, the electoral registration officer contravened section 23(3) of the 1950 Act, the same cannot be made a ground for invalidating the election as the contravention in question does not come within the purview of subs.
(1) ors.
100 of the Act.
This contention again does not appear to be sound.
Clause (d)(iii) of sub section
(1) of section 100 of the Act provides that if the High Court is of the opinion that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, it shall declare the election void.
We have earlier come to.
the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27, 1968.
Therefore votes.
of the electors whose names were included in the roll on that date must be held to be void votes.
That conclusion satisfies one of the conditions prescribed in section 100(1)(d).
We have now to see whether the other conditions prescribed in that clause namely whether the High Court on the material before it could have been of the opinion that the result of the election in so far as it concerned the returned candidate has been materially affected ' because of the reception of the votes which are void.
The High Court elaborately considered that question.
It has examined each one of the disputed votes and has come to the conclusion that if 844 those votes had been excluded, the valid votes received by the contesting candidates in the first count would have been as follows: Appellant 32 Respondent No. 2 46 Respondent No. 3 23.
In the second count after the elimination of the third respondent and taking into consideration the second preferences give by the electors, who gave their first preference to him the following would have been the position: Appellant 43 votes and Respondent No. 2 57 votes.
No matter was placed before us to show that this conclusion was wrong.
There was some controversy about two votes but we do not think it necessary to go into the same as any decision as regards their validity will not affect the final conclusion.
Before leaving this case, it is necessary to mention that at one stage of the arguments, the learned Counsel for the appellant contended that the decision of this Court in B.M. Ramaswamy vs B.M. Krishnamurthy and Ors.(1) governs the facts of this case.
But after some discussion he gave up that contention.
The ratio of that decision has no relevance for our present purpose.
In that case, the High Court came to the conclusion that the corrections in the concerned electoral roll had been made before the last date prescribed for filing nominations to the election but it came to the conclusion that the electors newly added to the list were not qualified to be registered as electors This Court overruled that finding holding that every person whose name finds place in the electoral roll must be ' held to be qualified to be a candidate whether he was qualified to be registered as an elector or not.
In other words it upheld the finality of the electoral roll as it stood on the last date for filing nominations for the election.
For the reasons mentioned above this appeal fails and the same is dismissed with costs.
| The first respondent, an elector, challenged the election of the appellant to the Lok Sabha.
He alleged inter alia, in the election petition that: (1) only one counting agent of the defeated candidate was permitted at each table where three persons were counting simultaneously, and hence, it was impossible 'for the counting agent to detect the wrong acts of the counting staff who had adopted an attitude hostile to the defeated candidate; and (2) several votes of the defeated candidate were improperly rejected ignoring the protests of the election agent of that candidate, while invalid votes and votes of the defeated candidate were counted in favour of the appellant.
The Schedule to the petition gave some figures of such improper rejection and improper acceptance.
In the verification to the petition it was stated that the allegations were made on the basis of information 'received from the workers and the counting agents of the defeated candidate and that the election petitioner believed the information to be correct.
It was however not stated in the petition who the workers were and what was the basis of their information.
No written objection was flied during the counting, either to the acceptance or the rejection of any vote, nor was any such application made for a recount.
Before the trial of the election petition the election petitioner filed an application for permission to.
inspect the packets.
of ballot papers containing the accepted as well as rejected votes of the candidates.
In the affidavit in support of the petition he averred that on one of the days of counting.
he was the counting agent of the defeated candidate and had personal knowledge of Such improper rejection and acceptance.
No other affidavit of persons who could have had personal knowledge of the matter was flied.
The High Court allowed the application and permitted scrutiny solely on the basis of the allegations in the election petition and the affidavit in support of the application seeking scrutiny.
In appeal to this Court, HELD.
: In view of the importance of maintaining the secrecy of the ballot papers, scrutiny can only be ordered if the election petition contains an adequate statement of the material facts on which the petitioner relies, that is, the material facts disclosed must afford an adequate basis the allegations; and, the election tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
[855 G H; 856 A] In the present case, the High Court stated that it was so.
satisfied on the mere statement of 'some figures in the petition and affidavit.
It also did not give any reason in support of its satisfaction as to the need for inspection.
[857 G H] (1) The petitioner had not stated that any.
of the counting agents appointed by the defeated candidate or his election agent, in accordance 853 with the rules, had been refused admission to the place of counting.
Therefore, the allegation that enough number of counting agents were not permitted was not supported by any statement of material facts.
[857 B C] (2) Similarly, with regard to the rejection of the votes polled in favour of the defeated candidate, under the rules, before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper, and therefore, the serial numbers of the concerned ballot papers could have been noted.
The election petition, however, is silent as to the inspection and notes of the ballot papers and other material facts such as raising objections and asking for a 'recount.
[857 C E] Therefore, the scrutiny of the ballot papers was sought on the basis of mere assertions and allegations which were neither accompanied by a statement of material facts nor were they supported by any evidence; and hence, the High Court should have rejected the application for scrutiny.
[857 F] Ram Sewak Yadav vs Hussain Kamil Kidwai, [1964] 6 S.C.R. 238 and Dr. Jagjit Singh vs Giani Kartar Singh, A.I.R. 1966 S.C. 773, followed.
|
Appeal No, 145 of 1960.
Appeal by special leave from the judgment and order dated March 18, 1958, of the Kerala High Court in Tax Revision Case No. 12 of 1957.
V.A. Seyid Muhamad and Sardar Bahadur, for the appellant.
C.K. Daphtary, Solicitor General of India, Thomas Vellapally, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent.
December 15.
The Judgment of the Court was delivered by 286 KAPUR, J.
This is an appeal by special leave against the judgment and order of the High Court of Kerala in Tax Revision No. 12 of 1957.
The respondent who is the assessee owned an estate of 590 acres in South Malabar district, now in Kerala State.
Out of that area 85 acres were covered by Pepper, Arecanut, Paddy and Coconut cultivation while the rest i.e. 505 acres had rubber plantations upon it.
Of that area 235 acres were occupied by immature non bearing rubber trees and 270 ' acres had mature rubber trees.
The assessment relates to the year 1955 56, the accounting year being the year ending March 31, 1955.
The respondent claimed from out of the income expenses relating to the maintenance and upkeep of immature non bearing rubber trees.
The Agricultural Income tax Tribunal held that the expenses incurred on the whole area under rubber plantations were deductible expenses and remanded the case for ascertaining the expenses incurred in forking and manuring of the "non bearing and immature" rubber grown areas also.
The appellant then preferred a revision application to the High Court under section 54(1) of the Madras Plantations Agricultural Income Tax Act, 1955 (Mad.
V of 1955).
The High Court held that the amount spent on the upkeep and maintenance of immature rubber trees was a deductible expenditure under section 5(e) of that Act which provides: S.5 "Computation of agricultural income: The agricultural income of a person shall be computed after making the following deductions, namely:. . . . . :. . . (e) any expenditure incurred in the previous year (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of the plantation;".
The provisions of section 5(e) of the Madras Act, applicable to the present case, are the same as those of section 5(j) of the Travancore Cochin Agricultural Income Tax Act (Act XXII of 1950).
The only difference is in the last few words.
In place of "for the purpose of the plantation" in the former, the words "for the purpose of 287 deriving the agricultural income" are used in the latter.
If anything the words of the former Act are more favourable to the respondent.
In Travancore Rubber and Tea Company Ltd. vs Commissioner of Agricultural Income Tax, Kerala (1), which was an assessment under the Travancore Cochin Act, we have decided the question of deductibility of sums expended for purposes of forking, manuring etc.
of immature rubber trees.
That judg ment will govern this case also.
This appeal therefore fails and is dismissed with costs in this court and the High Court.
| The appellant used to invest his cash surplus in shares and securities and maintained an account book called Book No. 1 relating thereto.
During the period from 1930 to 1941 42 he purchased a large number of shares and securities which by the accounting year 1941 42 were of a value Rs. 1491 lacs.
He sold certain shares and securities of the value of several lacs and made certain amount of profit on those sales.
In 1940 the appellant borrowed a large amount of money from his brother, the Maharaja of Darbhanga and opened a new account named account No. 2 which contained all entries regarding shares purchased and sold out of the money borrowed from the Maharaja.
In the assessment year 1944 45 to 1948 49 the profits made by the (1) ; 288 appellant from purchase and sale of shares amounted to several lacs and the Income tax Officer held those to be liable to income tax as business profits.
The Appellate Assistant Commissioner upheld the assessments but excluded the profits for the years 1944 45.
On appeal by both the parties the Appellate Tribunal held on the evidence that the appellant was to be regarded as a dealer in shares and securities and therefore the profits were assessable to income tax.
The High Court stated the following two questions under section 66(2) of the Income tax Act and answered them in the affirmative: "(1) Whether in the circumstances of the case, there is material to support the finding of the Appellate Tribunal that the assessee was a dealer in shares and securities with respect to each of the account and, therefore, liable to be taxed? (2)Whether having regard to the finding of the Appellate Tribunal in respect of 1941 42 assessment, it was open to the Appellate Tribunal in the present case to hold that the profits and transactions of sale and purchase of shares and securities amounted to profits of business and so liable to be taxed?" On appeal by special leave the appellant contended inter alia, that being a Zamindar the buying and selling of shares was not his normal activity and he did not carry on any such business but his purchases and sales were in the nature of investments of his surplus monies and therefore the excess amounts received by sales were capital receipts being merely surplus and not profits.
Held, that on the materials produced and on the facts proved the appellant must be held to have been rightly assessed.
The principle applicable to such transactions is that when an owner of an ordinary investment chooses to realise it and obtains a higher price for it than the original price paid by him, the enhanced price is not a profit assessable to income tax, but where as in the present case what is done is not merely a realisation or a change of investment but an act done in what is truly the carrying on of a business the amount recovered as appreciation will be assessable.
G.Venkataswami Naidu & Co. vs The Commissioner of Income tax, [1959] Supp. 1 S.C.R. 464, Oriental Investment Company Ltd. vs The Commissioner of Income tax, ; , Raja Bahadur Kamakshya Narain Singh vs Commissioner of Income tax, Bihar and Orissa, (1943) L.R. 70 I.A. 180, discussed.
The substantial nature of the transactions, the manner in which the books were maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and sales and the holding justified tile Tribunal to come to the conclusion that the appellant was dealing in shares as business.
The High Court could not interfere with those findings and it rightly answered the questions in the affirmative.
There is no such thing as res judicata in income tax matters 289 and it was quite open to the Appellate Tribunal to give the finding that it did.
|
ivil Appeal No. 5 19521 of 1975.
From the Judgment and Order dated 9.5.1974 of the Punjab and Haryana High Court in I.T. Reference Nos. 30 to 32 of 1973.
G.C. Sharma, Ms. A. Subhashini and K.C. Dua for the Appellant.
Dr. Y.S. Chitale, R.K. Jain, Rakesh Khanna and Ms. Abha Jain for the Respondent.
The Judgment of the Court was delivered by PATHAK, CJ.
These appeals by special leave are directed against a judgment of the High Court of Punjab and Haryana disposing of an Income tax Reference in favour of the re spondent assessee.
The assessee manufactures strawboard.
For the assessment years 1965 66, 1966 67 and 1967 68 (the relevant previous years being the respective calendar years 1964, 1965 and 1966), the assessee claimed concessional rates of income tax, development rebate at higher rate and deduction under section 80 E of the Income Tax Act, 1961 on the 774 ground that the manufacture of strawboard was a priority industry.
For the assessment year 1965 66 the total income assessed was Rs. 17,71,334 and against the basic rate of 80 per cent the assessee claimed rebate at the rate of 35 per cent up to Rs. 10,00,000 and on the balance at 26 per cent.
The Income Tax Officer allowed the rebate at 30 per cent up to Rs. 10,00,000 and at 20 per cent on the balance.
For the assessment year 1966 67 the assessee claimed development rebate under section 33 of the Income Tax Act at the rate of 25 per cent on the value of the machinery installed after 1 April, 1965 worth Rs.34,287, but rebate was allowed at 20 per 'cent only.
The assessee also claimed benefit under section 80 E (inserted by the Finance Act, 1966 with effect from 1 April, 1966) to the extent of the income determined by the Income Tax Officer at Rs.8, 17,485 received from the manu facture of strawboard.
This industry is mentioned at item No. 16 in the Fifth Schedule to the Income Tax Act as sub stituted by the Finance Act, 1965.
The claim of the assessee was.
rejected by the Income Tax Officer.
For the assessment year 1967 68 the total income of the assessee was determined at Rs. 11,00,885.
The assessee claimed relief under section 80 E to the extent of Rs.7,50,316 received as income from the manufacture of strawboard.
This claim was similarly rejected by the Income Tax Officer on the ground that the assessee could not be described as a priority industry.
The Income Tax Officer took the view that the manufacture of Strawboard was not covered by the words 'paper and pulp ' in the rele vant Schedules pertaining to the assessment 1966 67 and 1967 68.
The assessee appeared to the Appellate Assistant Commis sioner of Income Tax in respect of the three assessments, but the appeals were dismissed.
In second appeals filed in all the three cases, the assessee 's plea that the manufac ture of strawboard was a priority industry was accepted and the Appellate Tribunal held that the assessee was entitled to the statutory rebates claimed by it.
At the instance of the Revenue, the Tribunal referred the following questions to the High Court for its opinion: "Assessment year 1965 66 Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that 'strawboard ' is covered by the term 'paper and pulp ' appearing in paragraph F of Part I read with Part III of the First Schedule to the Finance Act, 1965 (Act No. X of 1965)? 775 Assessment years 1966 67 and 1967 68 Whether on the facts and in the circumstances of the case, the Appellate Tribunal was fight in law in holding that 'strawboard ' is covered by the term 'paper and pulp ' appearing at item 16 of the Fifth Schedule to the Income Tax Act, 1961 and in allowing the assessee 's claim under section 80 E of the Act?" The High Court has held that the strawboard industry is covered within the expression 'paper and pulp ' appearing in the relevant Schedules of the Income Tax Act and has, there fore, answered the questions referred to it in the affirma tive, in favour of the assessee and against the Revenue.
The sole question before us is whether strawboard can be said to fall within the expression 'paper and pulp ' men tioned in the Schedules relevant to the respective assess ment years.
To resolve the question it is necessary, first to examine the significance and scope of the Schedules.
The provision for rebate has been made for the purpose of en couraging the setting up of new industries, and the indus tries are those described in the relevant Schedules.
It seems to us clear that when the Schedules refer to 'paper and pulp ' they in fact intend to refer to the paper and pulp industry.
That being so, the next question is whether the strawboard industry can be described as forming part of the paper and pulp industry.
We have no doubt in our mind that it does.
The expression has been used comprehensively.
It is necessary to remember that when a provision is made in the context of a law providing for concessional rates of tax for the purpose of encouraging an industrial activity a liberal construction should be put upon the language of the statute.
From the material before us, which we have carefully consid ered, that is the only reasonable conclusion to be reached in.
these case.
The High Court has referred to the licence dated 31 May, 1954 issued to the assessee that the undertak ing of the assessee was registered in terms of section 10 of the Industries (Development and Regulation) Act, 195 1, and the details given in the licence declare that it relates to a Schedule industry which includes newsprint, paperboard and strawboard.
The High Court has also referred to the circum stances that the process of manufacturing strawboard is identical with that of manufacturing paper.
The expression 'paper and pulp ' in the Industries (Development and Regula tion) Act includes paperboard; and strawboard.
Our attention has been drawn to the Entry relevant to the assessment year 1964 65 which speaks of 'paper and pulp including 776 paper products ' and, it is said, strawboard is evidently not within the natural meaning of the word 'paper '.
We do not think that the submission merits serious consideration.
Newsprint, paperboard and strawboard have been specifically mentioned in the entry in order to make it clear that they are included within the meaning of the word 'paper '.
In our judgment, the High Court is fight in taking the view which it has, and therefore, the appeals must be dis missed.
The appeals are dismissed with costs.
N.P.V. Appeals dismissed.
| The appellant was charged with the murder of a girl Baisakhi.
On information given by Aghani, younger sister of the deceased, the headless body of the deceased was re covered.
The appellant absconded but was found in another village and was brought back by the village volunteer force.
On interrogation by the Mukhia, Sarpanch and a panch of the Gram Panchayat the appellant made an extrajudicial confession.
A blood stained cutting weapon was recovered from a room of the appellant.
At his instance some strands of hair were recovered from a place at a short distance 1337 from the place where the dead body had been recovered, which were stained with human blood and appeared to be scalp hair of a human female.
The appellant was convicted and sentenced to death and the High Court upheld the conviction and sentence.
The Courts took into consideration the statements made by Aghani to her mother and to other persons that the deceased was last seen in the company of the appellant.
Aghani, however, died before her statement could be recorded in a judicial proceeding.
It was contended by the appellant that the statements of Aghani were inadmissible, that the extra judicial confession was not relevant and that the circumstantial evidence was not sufficient to establish the guilt of the appellant.
Held, that the statements of Aghani were not admissible either under section 32 or section 33 Of the Evidence Act.
Section 33 had no application as her statement was not made in any judicial proceeding or before any person authorised by law to record the same.
The statements did not relate to the cause of her death or to any circumstances relating to her death but related to the death of her sister and did not fall under cl. 1 of section 32 which was the only clause which could have any bearing on the question.
Held, further, that though having regard to the Bihar Panchayat Raj Act, the Mukhia, Sarpanch and panch of the Gram Panchayat to whom the extra judicial confession was made were persons in authority within the meaning Of section 24 Evidence Act, no threat, promise or inducement for making the confession was proved.
The facts that the appellant was brought back to the Village by the village volunteer force and that it took two or three hours before he made the confession do not indicate that the confession was not voluntary.
There was nothing to show that the confession contained any untrue or inaccurate statement.
The circumstantial evidence may not be sufficient by itself to prove the guilt of the appellant, but it afforded sufficient corroboration to the confession and the corroboration was of such a nature as to connect the appellant with the murder.
|
Civil Appeal No. 8690 of 1983.
Appeal by Special Leave from the Judgment and order dated the 3rd day of May, 1982 of the Delhi High Court in C.M. No. 650 of 1980.
M.B. Lal for the Appellant.
Dalveer Bhandari, R.N. Poddar and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by special leave is filed against the order of the High Court of Delhi dated May 3, 1982.
in C. M. No. 525 of 1981 (in C.M. (Pauper) No. 650 of 1980) by which the High Court refused permission to the appellant to prosecute an appeal which he had presented earlier as an indigent person after 277 paying the court fee within such time as may be fixed by the Court as provided in Rule 2 of order 44 of the Code of Civil Procedure, 1908.
The facts of the case are these: The appellant filed a suit questioning the validity of an order dismissing him from the post of Senior Rakshak/Head Constable, Railway Protection Force, Delhi in the court of the Sub Judge Ist Class, Delhi as an indigent person.
That suit was dismissed after contest.
Against the decree passed in the suit, he filed an appeal before the High Court of Delhi in C.M. (Pauper) No. 650 of 1980 along with an application under Rule 1 of order 44 of the Code of Civil Procedure requesting that he may be allowed to appeal as on indigent person.
That application was dismissed by the learned Single Judge of the High Court by a one word order stating 'Dismissed ' on May 14, 1981.
The appellant thereupon made an application No. C. M. 525 of 1981 praying for permission to pay the requisite court fee and to prosecute the appeal.
That application was also dismissed by the same learned Judge by the order dated May 3, 1982 in which he inter alia observed thus: "The application for leave to appeal as an indigent person was dismissed on merits, and not on the ground that the applicant was not indigent person.
I could not have dismissed it on the latter ground without holding an inquiry as to the of the applicant.
Since that application was dismissed on merits, there was no question of granting time to the applicant to pay court fee".
This appeal is directed against the above order.
A reading of the aforesaid order shows that the learned Judge was of the view that he had dismissed the appeal itself on merits on May 14, 1981 when he dismissed the application for leave to appeal as an indigent person.
The question which now arises for consideration is whether such an order can be passed at the stage at which it was passed after the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) which came into force with effect from February 1, 1977.
Prior to the abovesaid amendment, order 44 of the Code of Civil Procedure contained two Rules.
Rule 1 of order 44 of the Code of Civil Procedure which is material for purposes of this case read as follows: "1.
(1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of 278 appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable.
(2) The Appellate Court, after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust".
It is seen from the above provision (as it stood prior to its amendment) that an appellant who wished to file an appeal without payment of the requisite court fee had to file an application accompanied by the memorandum of appeal praying for permission to prosecute the appeal as an indigent person.
On the presentation of such an application, the appellate court after fixing a day for hearing the application or his pleader and hearing him accordingly if he appears on that day and upon a perusal of the application and of the judgment and decree appealed from was obliged to reject the application unless it saw reason to think that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust.
Under Rule 2 of Order 44 of the Code of Civil Procedure as it stood prior to its amendment the inquiry into the pauperism of the applicant could be made either by the appellate court of under the orders of the appellate court by the court from whose decision the appeal had been preferred.
No further inquiry on this question was, however, necessary if the applicant had been allowed to sue or appeal as a pauper in the court from whose decree the appeal was preferred, unless the appellate court saw cause to direct such inquiry.
It is thus seen that under the law in force prior to the amendment by Act No. 104 of 1976.
it was necessary for a person who wanted to file an appeal in forma pauperis, as it used to be called then, to establish not merely that he had no means to pay the requisite court fee but also that the decree appealed against was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust and that the dismissal of an application to file an appeal in forma pauperis could be either on the ground that the applicant was not a pauper, or on the ground that the decree was not contrary to law or to some usage having the force 279 of law or was otherwise erroneous or unjust, or both.
It was, therefore, necessary for the Court to examine the case in merits also though for the limited purpose of sub rule (2) of Rule 1 of order 44 of the Code of Civil Procedure before either granting or rejecting an application to file an appeal in forma pauperis.
After the amendment of order 44 of the Code of Civil Procedure by Act 104 of 1976, there are three Rules in it.
Rules.
1 and 2 thereof now read as follows: "1.
(1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent person, in so far as those provisions are applicable.
Where an application is rejected under rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite court fee, within such time as may be fixed by the Court or extended by it from time to time and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
" It is not necessary to set out Rule 3 which is only an improved version of the former Rule 2 here as it merely deals with the mode of holding an inquiry into the capacity of the applicant to pay the court fee.
By the above said amendment made in the year 1976 sub rule (2) of Rule 1 of order 44 of the Code of Civil Procedure is deleted.
The result is that when an application made under Rule 1 of order 44 of Civil Procedure Code comes up for hearing, the only question which has now to be considered is whether the applicant is an indigent person or not.
Any question relating to the merits of the case does not arise for consideration at that stage.
If the application is granted, then the memorandum of appeal would have to be registered as an appeal and disposed of in accordance with law.
When the appeal is posted for admission the appellant has to satisfy the Court 280 that the appeal merits admission.
At that stage the appellant may draw the attention of the Court not merely to the judgment and decree appealed from but also to all the relevant records in the case to substantiate his claim that the appeal deserves to be admitted.
Rule 2 of order 44 as it now stands requires that where an application is rejected under Rule 1 thereof the Court may while rejecting the application, allow the applicant to pay the requisite court fee within such time as may be fixed by the Court or extended by it from time to time and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
If the requisite court fee is paid the appeal has to be registered and posted for admission.
From the foregoing it appears that the High Court lost sight of the effect of the amendment of Rule 1 of order 44 of the Code of Civil Procedure by the omission of the former sub rule (2) of Rule 1.
A rejection of the application made under Rule 1 of order 44 now can only mean that the Court is not satisfied about the claim of the applicant that he is an indigent person and nothing more.
It does not, however, amount to a finding that the appeal is not a fit one for admission on merits.
Otherwise Rule 2 of order 44 which permits payment of court fee after the application under Rule 1 is rejected, would become meaningless.
It is no doubt true that the learned Judge of the High Court states that he had dismissed the appeal on merits when he said 'dismissed ' on May 14, 1981, but the appellant contends that could not be the meaning to be attached to that order having regard to the law now in force.
It is likely that having regard to the true legal position the appellant may not have placed at the time when the application came up for consideration before the High Court all his submissions which he would have made if the appeal had been posted for admission.
In this situation the possibility of the occasioning of failure of justice cannot be ruled out.
Since what was rejected was the application under Rule 1 of order 44 of the Code of Civil Procedure the High Court should have made an order as required by Rule 2 thereof granting time to the appellant to pay the requisite court fee and permitting him to prosecute the appeal.
The High Court failed to do so even when an application was made for that purpose.
The order of the High Court is clearly unsustainable.
281 We, therefore, set aside the order of the High Court passed on May 3, 1982 in C. M. No. 525 of 1981 and remand the case to it to pass an order granting time to the appellant to pay the court fee as required by Rule 2 of Order 44 of the Code of Civil Procedure and to dispose of the case in accordance with law without being influenced by the circumstance that it had been rejected earlier on merits as observed by the learned Single Judge.
Before concluding this judgment we wish to draw the attention of the High Court to the description of the applications filed before it under Order 44 of the Code of Civil Procedure.
Action may be taken to delete the word 'pauper ' from their description in view of the amendments made in 1976.
The appeal is accordingly allowed.
No order as to costs.
N.V.K. Appeal allowed.
| The petitioner who was detained by an order passed under sec.
3 (3) of the challenged the validity of his detention on the ground that there had been inordinate delay on the part of the detaining authority in forwarding the petitioner 's representation to the State Government and that there had been violation of the mandatory provisions of sec.
10 of the Act which enjoins the State Government to take steps to see that the case of the detenu is considered by the Advisory Board within three weeks from the date of detention.
Dismissing the writ petition, HELD: The question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case; if on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the authority concerned, but due to unavoidable circumstance or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.
[344 C F] The instant case falls under the latter category inasmuch as the court is satisfied on its perusal of the original file pertaining to this case maintained in the office of the District Magistrate and the averments contained in the counter affidavit filed on behalf of the respondents that the petitioner 's representation has been dealt with all the promptness that was reasonably possible 341 under the circumstances then obtaining and that there was no avoidable delay on the part of the District Magistrate in forwarding the petitioner 's representation.
[344 B; G] Under sec.
10 of the Act a duty is cast on the appropriate Government to "place before '; the Advisory Board constituted under sec.
9 within three weeks from the date of detention the grounds on which the order of detention has been made and the representation, if any, made by the person affected by the order.
It is wholly wrong to interpret the words "place before" as meaning anything more than 'forward to ' cr submit before ' the Advisory Board the relevant papers relating to the detention of the detenu.
It is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under sec.
11 of the Act which has specified a time limit of seven weeks from the date of detention for the submission of the Board 's report to the appropriate Government.
[345 G H; 346 A B] In the present case the Advisory Board had disposed of the petitioner 's case well within the period of seven weeks specified in sub sec.
(1) of sec.
11, of the Act.
[346 C]
|
l Appeal No. 166/1963.
Appeal from the judgment and decree dated April 28, 1961 of the Bombay High Court in First Appeal No. 135 of 1958.
section T. Desai, section Singhvi, J. B. Dadachanji, 0.
C. Mathur and Ravinder Narain, for the appellant.
Purushottam Trikamdas, M. H. Chhatrapati and I. N. Shroff, for the respondent.
March 18, 1964.
The judgment of RAGHUBAR DAYAL and AYYANGAR, JJ. was delivered by RAGHUBAR DAYAL J. MUDHOLKAR J. delivered a dissenting Opinion.
RAGHUBAR DAYAL, J.
This appeal, on a certificate granted by the Bombay High Court, arises out of a petition praying for the annulment of the petitioner appellant 's marriage with the respondent, under section 12 of the (Act XXV of 1955), hereinafter called the Act, on the ground that the respondent was, at the time of marriage, pregnant by some person other than the petitioner.
The facts leading to the proceedings are that the appellant and the respondent were betrothed sometime in JuneJuly 1945 and were married on March 10, 1947.
The appellant went abroad about the end of April 1947.
A daughter was born to the respondent on August 27, 1947.
The appellant returned to India some time in November 1947, but the parties did not live together thereafter.
The appellant instituted a suit, No. 34 of 1947 48, in the Court of the State of Baroda, at Baroda, for the declaration of nullity of the marriage.
The suit was, however, dismissed on September 30, 1949 as the appellant failed to establish that he had his domicile in that State.
The Act came into force on May 18, 1955.
The appellant took advantage of its provisions and on April 18, 1956 filed the petition for annulment of his marriage with the respondent.
The appellant alleged in his petition that on learning of the birth of the child on August 27, 1947, five months and seventeen days after the marriage, he felt surprised and suspected that the child had been conceived long prior to the marriage through someone else, that the respondent was, at the time of their marriage pregnant by someone other than himself, that this fact was concealed from him and that ever since he had learnt of the birth of the child he had not lived or cohabited with the respondent nor had any relations with her whatsoever.
The respondent, in her written statement, raised various defences.
She admitted therein to have conceived the baby prior to the marriage, but alleged that she had conceived as a result of sex relations with the petitioner after their betrothal, 271 on being assured by him that that was permissible in their community.
She further stated that her relations in law, viz., her father in law, mother in law and sister in law knew about such relations between the parties and about her having conceived prior to the marriage.
She further alleged that she ' flatly refused to carry out abortion and that therefore, at the instance of the appellant, the marriage was performed in Bombay and not at her parents ' place.
She denied that the child born to her was by any person other than the appellant.
Due to her allegation about pre marital sexual relations with the appellant and to her having conceived from such relations, she was required to furnish particulars about the time when, and the place or places where, the parties had sexual relations which she alleged to have led to her preg nancy.
According to the particulars furnished by her, such sexual relations took place about or after Christmas, 1946, and again after about the middle of January 1947.
On the pleadings of the parties, six issues were framed,.
but those relevant for our purpose were: 1.
Whether the respondent was at the time of them marriage pregnant by someone other than the ' petitioner as alleged in para 9 of the petition? 2.
Whether at the time of the marriage the petitioner was ignorant of the aforesaid fact? 3.
Whether the petitioner is entitled to have the marriage declared null and void? The petitioner examined himself and his father.
The respondent examined herself and one other witness.
The documentary evidence adduced by the parties consisted mostly of ' letters written by the petitioner to the respondent and the respondent to the petitioner, since their betrothal, and letters written by other relations of the family to one another.
The trial Court did not accept the allegation of the res pondent about the pre marital sex relations with her husband and held that it was not established that she was pregnant by ' the petitioner.
It also held that she was pregnant at the time of the marriage by some other person, that the petitioner did not know about her pregnancy at the time of the marriage and that he did not cohabit with her after knowing of her being pregnant by someone else at the time of marriage.
On these findings, the petition for annulment of the marriage was allowed.
The respondent preferred an appeal to the High Court. ' The High Court agreed with the trial Court in its finding that the respondent had failed to establish that she was pregnant ' by the petitioner at the time of the marriage, as also regarding 672 he petitioner knowing of her pregnancy at that time.
The learned Judges however held that the petitioner had not proved to their satisfaction that the respondent was pregnant by someone other than the petitioner at the time of the marriage and that the petitioner was not the father of the child which was born and, considering that the trial Court had not framed an issue about there being no marital intercourse between the parties after the petitioner 's knowing that the respondent had been pregnant at the time of the marriage, framed two issues and remitted them to the trial Court for recording findings.
The two issues framed by the High Court were: 1.
Is it proved that the respondent was pregnant at the time of the marriage? 2.
Is it proved that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree? Thereafter, the trial Court recorded further evidence.
The petitioner, besides examining himself, examined Dr. Champak al, husband of his sister, Madhuben, who was a midwife at the Prantij Municipal Dispensary, Maternity Ward, in 1947 and who attended at the respondent 's confinement and two doctors, Dr. Ajinkya and Dr. Udani as experts.
The respondent, for her part, examined Dr. Mehta as an expert witness,Kachrabai who was a compounder at the Pantij Municipal Dispensary in 1947, Khodidas a Doctor, and herself.
Khodidas did not state anything material to the case.
The trial Court, after considering the fresh evidence recorded by it, found that it was not proved that the respondent was pregnant at the time of marriage.
This was on the first issue framed by the High Court.
On the other issue it recorded a finding that it was proved that no sexual intercourse with the consent of the petitioner took place since the discovery by the petitioner of the existence of the grounds for a decree.
These findings were then submitted to the High Court.
In the High Court, objections were filed by the parties to these findings.
Patel and Gokhale JJ., heard the appeal and delivered separate judgments.
They agreed with the trial Court that it was not proved that the respondent was pregnant at the time of marriage.
Patel J., further held that it was proved that the petitioner had marital intercourse with the respondent subsequent to his discovery of the existence of the grounds for the decree.
Gokhale J., expressed the view that the finding of the trial Court, on this point, appeared to be correct.
In the result, the High Court allowed the respondent 's appeal and dismissed the petition.
It is against this judgment and decree of the High Court that the petitioner has 273 preferred this appeal on a certificate granted by the High Court, under article 133(1)(c) of the Constitution, as already mentioned.
Before dealing in detail with the contentions of the par , ties, we may set down the relevant provisions of the Act, quoting the various sections: 12.
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (b) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub section (1), no petition for annulling a marriage (b) on the ground specified in clause (d) of sub section (1) shall be entertained unless the court is satisfied (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercouse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree." "20. (1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage.
(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence." 74 "21.
Subject to the other provisions contained in this.
Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (V of 1908)." "23(1) In any proceeding under this Act, whether, defended or not, if the Court is satisfied that (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (c) the petition is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly." "28.
All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force; Provided that there shall be no appeal on the subject of costs only.
" It is to be seen that, according to the provisions set out above, statements contained in any petition could be referred to as evidence, the provisions of the Code of Civil Procedure apply to the proceedings under the Act and a Court has to pass a decree in the proceedings only when it is satisfied about certain matters specified in section 23.
Two questions of law raised at the hearing of this appeal may now be disposed of as their determination will govern the consideration of the other matter on record with respect to the revelant points to be decided in the case.
These are: (i) whether the High Court was right in remitting the two issues for a finding to the trial Court and (ii) what is the standard of proof required for the satisfaction of the Court before it can pass a decree in these proceedings.
The High Court had to remit the second issue for a finding as it was necessary for the determination of the case and 275 the trial Court had not framed a specific issue in regard to it.
In the absence of such an issue, the parties could not be expected to have produced evidence directed to that point and therefore the High Court rightly remitted that issue for a finding.
The High Court remitted the first issue as it was of opinion that it was for the petitioner to prove to their satisfac tion, beyond reasonable doubt, which he had failed to do, that the respondent was pregnant at the time of marriage.
He had also to establish that the child could not possibly be born as a result of the petitioner 's marital intercourse with the respondent after the marriage, the learned Judges holding that in these proceedings the Court could not base its decision on the mere admission of parties.
The High Court is certainly right in stating that the peti tioner had, in order to succeed, to prove beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage.
It is, however, not correct in law in holding that the Court, in these proceedings, could in no circumstances base its decision on an admission of the parties.
On the facts of the present case, however, the decision did not rest on the admissions of the parties alone.
In White vs White(1) this Court construed the expression ,satisfied on the evidence ' in section 14 of the Divorce Act and said at p. 1420: "The important words requiring consideration are satisfied on the evidence '.
These words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition if not so satisfied. and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy . the guarded discretion of a reasonable and just man.
" It approved of the observations in Preston Jones vs Preston Jones(2) to the effect that it would be quite out of keeping with the anxious nature of the provisions to hold that the Court might be 'satisfied ' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.
The Court further observed at p. 1421: "In a suit based on a matrimonial offence it is not necessary and it is indeed rarely possible to prove the issue by any direct evidence for in very few cases can such proof be obtainable." (1) ; (2) , 417.
276 It follows that what the Court has to see in these proceed ings is whether the petitioner has proved beyond reasonable doubt that the respondent was pregnant by some one else at the time of marriage.
The petitioner has to establish such facts and circumstances which would lead the Court either to believe that the respondent was pregnant at the time of marriage by someone else or to hold that a prudent man would, on those facts and circumstances, be completely satisfied that it was so.
It is true that in divorce cases under the Divorce Act of 1869, the Court usually does not decide merely on the basis of the admissions of the parties.
This is a rule of prudence and not a requirement of law.
That is because parties might make collusive statements admitting allegations against each other in order to gain the common object that both desire, for personal reasons.
A decision on such admissions would be against public policy and is bound to affect not only the parties to the proceedings but also their issues, if any, and the general interest of the society.
Where, however, there is no room for supposing that parties are colluding, there is no reason why admissions of parties should not be treated as evidence just as they are treated in other civil proceedings.
The provisions of the Evidence Act and the Code of Civil Procedure provide for Courts accepting the admissions made by parties and requiring no further proof in support of the facts admitted.
Section 58 of the Evidence Act inter alia provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which by any rule of pleading in force at the time they are deemed to have admitted by their pleading.
Rule 5 of O. VIII, C.P.C., provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability.
Both these provisions, however, vest discretion in the Court to require any fact so admitted to be proved otherwise than by such admission.
Rule 6 of O. XII of the Code allows a party to apply to the Court at any stage of a suit for such judgment or order as upon the admissions of fact made either on the pleadings or otherwise he may be entitled to, and em powers the Court to make such order or give such judgment on the application as it may think just.
There is therefore no good reason for the view that the Court cannot act upon the admissions of the parties in proceedings under the Act.
277 Section 23 of the Act requires the Court to be satisfied on certain matters before it is to pass a decree.
The satisfaction of the Court is to be on the matter on record as it is on that matter that it has to conclude whether a certain fact has been proved or not.
The satisfaction can be based on the ' admissions of the parties.
It can be based on the evidence, oral or documentary, led in the case.
The evidence may be direct or circumstantial.
In Arnold vs Arnold(1) Woodroffe J., said: "In the present case admissions have been proved.
Doubtless, caution is required in cases of divorce to see that there is no collusion and an admission must be examined from this point of view.
But if, as here, there is no reason to suspect collusion an admission may be as cogent evidence i n these as in any other cases.
In Robinson vs Robinson (1859 1 Sw. & Tr. 362), Sir Alexander Cockburnsays: The Divorce Court is at liberty to act and is bound to act on any evidence legally admissible by which the fact of adultery is established.
If, therefore, there is evidence not open to exception of admissions of adultery by the principal respondent, it would be the duty of the Court to act on these admissions although there might be a total absence of all other evidence to support them.
The admission of a party charged with a criminal or wrongful act, has at all times and in all systems of jurisprudence been considered as most cogent and conclusive proof; and if all doubt of its genuineness and sincerity be removed, we see no reason why such a confession should not, as against the party making it, have full effect given to it.
" Reference may also be made to Over vs Over(2).
It was a suit for dissolution of marriage.
The respondent did not appear throughout the proceedings.
The evidence originally consisted of affidavits by the petitioner and his son to prove the letters the respondent had written to the petitioner.
Later, their statements were also recorded.
The letters were held to be sufficient evidence of her having committed adultery.
Sir Lallubhai Shah, Ag.
C. J., observed at p. 255: "I have dealt with this case at some length in view of the difficulty which we have felt on account of there being no other corroborative evidence of the admissions of the wife.
But, having regard to the (1)I.L.R. , 912.
(2)27 B.L.R. 251.
278 circumstances, as disclosed in the evidence, I see no reason to doubt the genuineness of the admission made by the wife, and in the words of Cockburn C. J., it is our duty to act upon such admissions, although there might be a total absence of all other evidence to support them." Marten J., said at p. 261 : "As already stated, I think that such a confession is admissible in evidence, and I agree that there is no rule of law which absolutely precludes the Court from acting upon it.
But as a rule of prudence the practice of the Divorce Courts has been in general not to act upon such confessions, unless corroborated.
The aforesaid rule of prudence loses its importance when certain provisions of the Act enjoin upon the Court to be satisfied with respect to certain matters which would enable the Court to avoid passing a decree on collusive admissions.
Section 12(2)(b) provides that no petition for the annulment of the marriage shall be entertained unless the Court be satisfied that the petitioner was at the time of marriage ignorant of the facts alleged and that no marital intercourse with the consent of the petitioner had taken place since his discovering the existence of the grounds for the decree.
Such a finding necessarily implies that before reaching it the Court has satisfied itself that there had been no connivance of the petitioner in the coming into existence of the ground on which he seeks annulment of the marriage.
Besides, section 23 also provides that the Court can pass a decree only if it is satisfied that any of the grounds for granting relief exists, that the petition is not presented or prosecuted in collusion with the respondent and that there was no legal ground on which the relief claimed could not be granted.
In these circumstances, it would be placing undue restriction on the Court 's power to determine the facts in issue on any particular type of evidence alone, specially when there be no such provision in the Act which would directly prohibit the Court from taking into account the admissions made by the parties in the proceedings.
We are of opinion that in proceedings under the Act the Court can arrive at the satisfaction contemplated by section 23 on the basis of legal evidence in accordance with the provisions of the Evidence Act and that it is quite competent for the Court to arrive at the necessary satisfaction even on the basis of the admissions of the parties alone.
Admissions are to be ignored on grounds of prudence only when the Court, in the circumstances of a case, is of opinion that the admissions of the parties may be collusive.
If there be no ground for such a view, it would be proper for the Court to act on those admissions without forcing the parties to lead other evidence to 279 establish the facts admitted, unless of course the admissions are contradicted by the facts proved or a doubt is created by the proved facts as regards the correctness of the facts admitted.
s The trial Court had recorded a finding on the basis of the statements of the respondent in the written statement, , statements which were supported by her on oath when examined as a witness.
Support for these statements was found from certain circumstances which the Court held established on the basis of the correspondence between the parties and certain oral evidence.
The respondent 's case that the child born to her on August 27, 1947 was begotten by the petitioner as they had intercourse at the relevant time sometime in December 1946 or January 1947, left no room for the Court to consider the new case that that child was conceived sometime after the marriage of the parties on March 10, 1947.
In these circumstances, it was not really right for the High Court to remit an issue to the trial Court for recording a finding on the basis of such further evidence including expert evidence as be led by the parties on the question.
In this connection, the remarks of Lord Simonds in Preston Jones ' case(1) at p. 402, are very pertinent: "Your Lordships would, I think, regard it as undesirable that the burden should be imposed upon litigants in this class of case of adducing evidence of the character which in Gaskill vs Gaskill Lord Birkenhead thought it expedient for the Attorney General to ask for the assistance of the court.
That may be unavoidable where medical evidence in regard to the period is called by the respondent; there is nothing to prevent a case becoming the battle ground of experts.
But I am dealing with such a case as that out of which this appeal arises, in which the substantial issue between the parties was whether the husband had at what was considered the relevant times any opportunity of intercourse with his wife and no question of an abnormal period of gestation had been raised until the trial and then only by the commissioner himself.
" However, as evidence has been led by both the parties and the Courts below have considered it, we do not propose to decide the case on the basis of the evidence originally recorded and would content ourselves by simply stating our view that the High Court might well have decided the case on that basis without remitting the first issue to the trial Court.
We may now deal with some general aspects of the case.
The petitioner has been consistent throughout.
He took the (1) 280 position that he was not the father of the child born to the respondent in August 1947 as the period of gestation between the date of marriage and the date of birth was too short for a mature child to be born.
This does not mean that his case was as has been considered by the Court below that the child born was a fully mature child in the sense that it was born after the normal period of gestation of about 280 days.
He could not have stated so positively as that could not be known to him.
Even the doctors are probably not in a position to state that the child was born after a full period of gestation i.e., after 280 days.
The petitioner 's case was that the child born was not a child whose period of gestation was 171 days from the date of conception or who could be said to be a premature child, but was a child born after almost the full period of gestation.
He steadily stuck to this position.
His conduct and the conduct of his relations from the time they learnt of the respondent 's giving birth to the child had been consistent with this view.
The petitioner had no correspondence or connection with the respondent since he was informed of the birth of the child.
His parents too did not enter into any correspondence with the respondent 's parents.
The peti tioner 's sister Sharda, however, appears to have written just one letter in acknowledgment of the respondent 's sister 's letter conveying the news of the birth of the child.
She has not been examined as a witness.
She appears to have written that letter when she was emotionally happy on the receipt of the news and had not given any thought to the matter.
In 1948, the petitioner instituted a suit for the annulment of the marriage in the Court at Baroda and there too pleaded what he pleaded in the petition giving rise to this appeal.
The respondent, however, put up a different case there.
Any way, that suit was dismissed on the preliminary ground that the petitioner did not have the necessary domicile to institute a suit in that Court.
The respondent, on the other hand, has not been consistent.
In her written statement filed in the Baroda Court she stated that she had become pregnant as a result of the sexual intercourse she had with the petitioner after marriage.
The same line was not adopted in her written statement in this case, in which she admitted that she was pregnant at the time of the marriage, but stated that this was due to sexual intercourse with the petitioner prior to her marriage.
She supported this statement vigorously on oath.
Later, after the close of the petitioner 's evidence, and practically of her statement in examination in chief, she wanted to change her case by an amendment of the written statement to what had been said in the Baroda Court.
This was not allowed by the trial Court.
The High Court too did not allow this formally, but in effect had that point tried by remitting an issue.
281 No good motive was suggested for the petitioner and his parents taking the view so firmly held by them about the child, being not of the petitioner from the very moment they learnt of the birth of the child on August 27, 1947.
Their attitude was not an attitude of mere suspicion in connection with which enquiries and observations could be made.
The attitude was firm from the very beginning.
They did not respond to letters from either the respondent or her father.
What could be the motive for them to take such an attitude? The respondent stated in her written statement: "The petitioner 's father has stayed in Europe for a very long time and holds very advanced views so also the petitioner but this entirely false litigation has been put forward at the instance of the petitioner 's mother who wants to sacrifice the respondent knowing full well the part played by her son the petitioner and the other members of the family.
" Nothing like this was said in her written statement filed in the Court at Baroda.
In her deposition before the findings were called for on the issues, she stated that the relations between herself and her mother in law were not very cordial.
She said in her deposition, after the remission of the issues, that "The parents of the petitioner were not on good term& with my parents as at the time of pheramani the petitioner 's parents were not satisfied with the presents given by my parents.
" This cause for bad relations has not been indicated in any of the letters by the respondent or by the petitioner.
It was not stated in the written statement.
We cannot take this to be a correct statement.
In her letter dated June 11, 1947 she merely stated: ". the nature of my mother in law had become peevish on account of ill health and that I should not take anything to my heart.
Respected papa used to advise me well and had also feelings for me .
She (mother in law) would sometimes become peevish, only and then she herself would feel sorry.
Mamma would speak very highly of me before our neighbours.
" The ordinary usual expressions of disapproval between mothers in law and daughters in law would not lead the rela tions in law to make such accusations against their daughterin law lightly, both on account of notions of family honour and on account of the natural love grand parents would feel towards their grand child.
282 The respondent 's letters prior to the marriage and subse quent thereto indicate her affection for the petitioner and her feeling of being bound by her husband 's desires.
But, in one respect at least, and for no good reasons, she ignored those desires.
We refer to the direction by the petitioner in his letter dated June 22, 1947 asking her to destroy that particular letter and the letters received earlier.
She did not do so.
Why? She has not given any explanation for keeping those letters with her in spite of the directions of the husband to the contrary.
It can be said, in the circumstances of the case, that she was retaining the letters for using them if possible in her defence when any accusation of her having gone wrong prior to the marriage be made against her.
It has been considered by the Court below that the res pondent 's letters to Sharda and her father 's letters to Dr. Champaklal in July 1947 had been suppressed.
It did not believe the statements of Dr. Champaklal that these letters could not be traced.
These persons had no reason to retain those letters.
Two letters of Sushila to Sharda have been produced and their production has been relied upon in sup port of the view that other letters had been deliberately suppressed.
We do not agree with this view.
There was reason to retain these two letters which were sent after the birth of the child and which must have been taken to be letters of some importance as written at a time when it had been realised that the respondent 's relations in law felt that the child born was not of the petitioner.
The main question for determination in this case is whether the child born to the respondent on August 27, 1947 could be the child of the petitioner, who, on the finding of the Courts below which was accepted by learned counsel for the respondent before us, did not cohabit with the respondent earlier than March 10, 1947.
Counting both the days, i.e., March 10 and August 27, the total period between those dates comes to 171 days.
The child born to the respondent is said to have weighed 4 pounds, the delivery being said to be nor mal.
The child survived and is said to be even now alive.
It is not disputed that the usual period of gestation from the date of the first coitus is between 265 and 270 days and that delivery is expected in about 280 days from the first day of the mensturation period prior to a woman conceiving a child.
We shall later be examining the point urged before us by learned counsel for the respondent, as regards the possibility of a living child being delivered after a gestation of this duration, but it is sufficient at this stage to point out that, if the delivery was normal, the child born also normal and alive, it was not suggested that it was possible in the course of nature for such a child being born unless the conception took place long before March 10, 1947.
283 In this connection, reference may again be made to what was said by Lord Simonds in Preston Jones ' case(1) at p. 402, when considering the question whether a normal child born 360 days after the last intercourse of a man and a woman "as the child of that man or not.
He said: "It would, I think, appear a fantastic suggestion to any ordinary man or woman that a normal child born 360 days after the last intercourse of a man and a woman was the child of that man and it is to me repugnant that a court of justice should be so little in accord with the common notions of mankind that it should require evidence to displace fantastic suggestions.
" Of similar effect is the observation of Lord Normand at p. 407, it being: "I have felt great doubt whether the House ought not to say that, though it is not possible to draw the line at an actual number of days, 360 days is too long a period, unless evidence of medical knowledge is adduced by the respondent to show the contrary.
" Lord Morton of Henryton also said, at p. 413: "If a husband proves that a child has been born 360 days after he last had an op portunity of intercourse with his wife, and that the birth was a normal one, and if no expert evidence is called by either side, I am of opinion that the husband has proved his case beyond reasonable doubt." In W. vs W. (No. 4) (2) a similar observation was made by Cairns, J. in proceedings on an application for ordering the wife and child to undergo blood tests in order to furnish evidence that the child was not the petitioner 'section The child was born 195 days after the marriage.
He said: "The marriage was on October 7, 1961.
The child was born on April 19, 1962.
It is, therefore, obvious that the wife was pregnant at the time of the marriage.
" We have then to see whether the evidence on the record is such which would justify the Court 's holding against what it should normally hold on proof of the fact that the child was born after 171 days of the first coitus between the parties.
We shall consider the statements of the doctors relating to different matters when dealing with them.
As doctors Ajinkia and Mehta do not agree on several points we have (2) (1) 284 to decide whose statement should be ordinarily preferred.
We however consider that the Court should not leave the questions undecided merely because the two doctors differ, as has been done, practically, by the learned Judges of the High Court.
Dr. Ajinkia is undoubtedly an expert in the subject of obstetrics and gynaecology.
He took a Master 's degree in midwifery in London in 1937 and passed the F.R.C.S. exami nation in Edinburgh in 1939 in midwifery and gynaecology.
He holds a diploma in child health of London University.
He is a member of the Royal College of Obstetricians and Gynae cologists.
He returned to India in 1939.
He was attached to the Nair Hospital as a specialist.
He was Professer of the Medical College at Agra and was in charge of the Department of Midwifery and Gynaecology from 1942 to 1944.
Since 1949 he was attached to the J. J. Hospital as an Honorary Doctor for Midwifery and Gynaecology and later at the Wadia Maternity Hospital.
He has three maternity homes with 60 beds in all.
He can therefore be rightly called a specialist in midwifery and gynaecology, with an experience of over 20 years.
Dr. Mehta states that he has been practising as a Gynae cologist and Obstetrician since 1926.
His qualifications, however, are much less than those of Dr. Ajinkia and his experience too, as an obstetrician and gynaecologist, is much less.
He has passed the F.R.C.S. Examination in 1906 at Edinburgh.
He was a Police Surgeon for about 10 years during which period he had no special means to acquire knowledge in midwifery, gynaecology or obstetrics.
He was a doctor in the Army for 13 years from 1907 to 1920 and could not possibly have such experience during that period.
He was an Associate Professor in Midwifery at Grant Medical College during 1928 to 1937.
He states that as a professor he was concerned both with giving lectures to students and doing practical work of attending to cases and labour operations.
During this period he was in charge of 6 beds at Motlibai Hospital.
At the time of his deposition he was attached to the Parsee General Hospital and Parsee Lying in Hospital for Women.
He carried on private practice and had three consulting rooms.
He states that most of his cases were gynaecology and midwifery.
Where Dr. Ajinkia and Dr. Mehta differ, we would prefer to rely on Dr. Ajinkia due to his superior qualifications and experience.
We do not consider it material that there exists some slight difference of opinion in matters, not of great significance, between what the doctors state and what is stated in certain well recognized books on the subject, as the statements are on the basis of the theoretical knowledge as modified by 285 their actual experience and what is stated in books is based on conclusions derived from various reports by various doctors working in the field.
Certain facts were urged before the High Court in support of the petitioner 's case.
Mr. Desai, learned counsel for the petitioner, has again submitted them for our consideration.
They are: 1.
The child was born 171 days after marriage and has lived.
It was confirmed by about April 2, 1947, that the respondent was pregnant.
The appearance of the respondent 's belly.
The symptoms of toxemia from which the respondent suffered.
Normal delivery.
Condition and weight of the child.
We shall first deal with points Nos. 2 to 4 which relate to, the respondent 's pregnancy and symptoms of its development at various periods.
The relevant facts are to be determined mainly from the contents of the letters between the parties and between them and some other persons.
Some letters make mention of the health of the respondent and the relevant letters in this respect are of the period April to August 1947.
The parties were, as already stated, married on March 10, 1947.
The respondent remained at the house of her relations in law till about March 27, when she returned to her father 's place at village Prantij.
The first letter from the petitioner to the respondent is dated March 31, 1947 and expresses the hope that she had reached her place hale and hearty.
The next letter from him is dated April 5.
It refers to a letter received from the respondent and indicates that her letter had conveyed the news of her getting some fever and that she had gone to consult a doctor.
Her letter might have also given some indication of her possibly being pregnant as the petitioner asked her to inform him about the opinion of the doctor.
There is nothing in this letter to show that the respondent had informed the petitioner about her suffering from nausea.
The petitioner 's letter dated April 8, 1947 refers to the receipt of a letter from the respondent which probably intimated that she was definitely pregnant, according to the opinion of the doctor, as the letter contains an expression 'knowing that you are pregnant ' and indicates the petitioner 's desire that the child be removed.
286 The respondent 's letter dated April 13, 1947 states: "I am not keeping good health at present, I am still getting fever.
I get vomits also .
But fever does, not leave me and I am not allowed to take food also.
I am bed ridden at present .
Well and good if the child survives and it will be still better if it does not.
" The petitioner 's letter dated April 15 has nothing parti cular in this connection.
On April 17, the parties wrote to each other.
The petitioner 's letter said: "I have been feeling very much anxious as your health is not remaining well.
Write about your health.
If you are not keeping good health and if you are not feeling disposed to come then you remain at your place.
I won 't take it ill at all.
" The respondent 's letter acknowledged the receipt of two, letters of the petitioner, probably of April 8 and April 15, and said: "I am keeping well now.
I have no fever for the last two days.
I am allowed to take light food.
I get two or three vomits in a day.
But I am better than, before.
So, please do not worry.
I will start on the 22nd and reach (there) on the 23rd.
" Her letter of April 20, just intimates about her leaving for Bombay on April 22.
She reached Bombay on April 23 ' and stayed there till the petitioner left for America on April ' 27.
According to the contents of these letters, the respondent suffered from morning sickness of a severe type.
She had fever and several vomits in the day.
In her deposition she stated: "Before I left for Prantij for the first time after my, marriage, I had nausea and vomiting.
When I left for Prantij my health was ordinarily good.
At Prantij I started vomiting.
I consulted a lady doctor at Himatnagar.
After I consulted the doctor at Himatnagar, I came to know that I was preg nant.
" In cross examination she stated: "I had a vomit on the day on which I left for Prantij from Bombay about 17 or 18 days after marriage.
At the time when I had a vomit, I did not suspect or imagine that I was carrying.
I consulted the lady doctor at Himatnagar within two or three days after I reached Prantij.
I told the lady 287 doctor at Himatnagar that I was feeling uneasiness.
I was vomiting and I had no appetite.
The lady doctor examined my body including my abdomen.
As a result of the opinion given by the lady doctor at Himatnagar I intimated to the petitioner that I was pregnant.
" It is contended for the petitioner that such a condition of the respondent could not be on account of pregnancy taking place on or after March 10, 1947.
Morning sickness of such type does not ordinarily take place soon after conception and a doctor cannot, without a biological examination, definitely state that she was pregnant.
Re: morning sickness, Dr. Ajinkia stated that it occurred in the first and second month and expressed agreement with Modi 's statement in his text book on Medical Jurisprudence that nausea or vomiting commences about the beginning of the second month and lasts generally till the end of the fourth month.
It follows that the commencement of the morning sickness at the end of March or the beginning of April 1947 may be possible from the respondent 's conceiving after marriage, but that the severe type of morning sickness, viz., fever and vomiting several times a day should have also developed so early after the conception is rather unlikely in view of what authorities state.
Williams in his 'Obstetrics ' states at p. 275, 12th Edition: "The so called morning sickness of pregnancy, as the name implies, usually comes on in the earlier part of the day and passes off in a few hours, although it occasionally persists longer or may occur at other times.
It usually appears about the end of the first month and disappears spontaneously six or eight weeks later, although some patients suffer from it for a longer period.
" At p. 706 he states: "Nausea and vomiting of mild degree constitute the most common disorder of the first trimester of pregnancy.
About one half of pregnant women complain of some degree of nausea at this time, and, of these, perhaps one third experience some degree of vomiting.
In the present era, however, it is uncommon for nausea and vomiting to progress to a serious extent, that is, to a stage in which systemic effects such as acetonuria and substantial weight loss are produced.
. and the condition is called hyperemesis gravidarum.
" 288 He states at pp.
708 and 709: "The disease varies in degree of severity from nausea and morning sickness to the severe or pernicious type of vomiting which may have a fatal outcome, Usually the condition begins about the sixth week of gestation and abates around the twelfth week." "A small number of these patients develop persistent vomiting, lasting four to eight weeks or longer and resulting in a loss of body weight of 10 to 20 pounds or more.
These patients vomit two, three, or more times a day and may be unable to retain any nourishment by mouth." "In the later stages of the disease rarely seen today a low grade fever frequently develops.
This seldom exceeds 101 degree F but may persist despite adequate hydration." Dugald Baird states at p. 323 of the 7th Edition of the Combined Text Book on Obstetrics and Gynaecology: "Morning sickness occurs in about 50 per cent of women during the early weeks of pregnancy.
In many cases there is only a feeling of nausea, with perhaps the ejection of a mouthful of fluid.
In, others, some partly digested food may be expelled.
In graver cases vomiting may persist throughout the day, and apparently all the ingested food is.
returned.
This latter type is a very serious condition and is described as hyperemesis gravidarum.
It is extremely difficult to draw any hard and fast line between the mor e severe form of morning sickness and a condition which should be labelled as hyperemesis.
As soon as a patient suffering from morning sickness feels nauseated and is sick later in the day, she must be regarded as a mild case of hyperemesis and treated accordingly.
" The respondent does not state about fever and about several vomits in a day in her deposition, but such a condition was expressed in her letters.
The respondent stated in cross examination that when she went to Gamdevi, she continued to, have vomiting, no appetite and uneasiness.
None of the letters written subsequent to April 17 by either party make any mention of this condition continuing.
Champaklal was not questioned about such a condition of hers at Gamdevi.
The petitioner was not questioned and the res pondent does not state that she had nausea and vomiting when at Bombay between April 23 and 27.
She did not have vomit or nausea so long as she was at Bombay in March, though she happened to state in examination in chief that 289 she had a vomit on the day she left.
The petitioner was not questioned about it.
It appears: to be too good to be true, that she suffered from morning sickness of such a type only for a short period of a little over two weeks.
These can be two, possibilities.
Either she did not suffer from any such sickness during that period and just mentioned about it to build up her case regarding the development of pregnancy or that her ' pregnancy was of a longer period at first she may have had ordinary morning sickness which usually consists of a feeling of nausea without any actual vomiting and could therefore be not known to others and that the serious type of actual vomiting and fever developed later in the third or fourth month of pregnancy which would indicate that in April the pregnancy was about four months old and not one month.
We may refer to her first statement in Court.
She then stated : "The petitioner 's father and his sister might be suspicious prior to the marriage that I was pregnant because I was not keeping good health." This may refer to her suffering from morning sickness prior to marriage.
Re: confirmation of pregnancy, Dr. Ajinkia deposed that it was not possible to confirm pregnancy by April 3, 1947 if a woman married on March 10, 1947 had conception subsequent to the wedding, except by performing some special biological test.
Similar is the opinion of Dr. Mehta examined for the respondent.
The Court below attached no importance to the doctor 's telling the respondent that she was pregnant about 3 weeks after she was married, by saying that what was conveyed to the respondent was not a definite diagnosis of pregnancy but only a suspicion about pregnancy as anybody would suspect after a woman 's missing of the monthly course and suffering from morning sickness.
It is not justified in so construing what the respondent stated in Court and what she appeared to have conveyed to the petitioner.
The doctor 's informing her definitely after examination of the body that she was preg nant again points to the fact that her pregnancy noticed in the first few days of April was of a longer duration than that of about 4 weeks.
From Bombay, the respondent went to Gamdevi where the petitioner 's sister Sharda lived and spent a few weeks there.
Letters written in May are not of any importance.
Her letter dated May 12, 1947 to the petitioner is on record.
She L/P(D)ISCI 10 290 expressed her intention to go to Bombay within a few days and to stay there for two months and stated: "Then, when my fifth month (of pregnancy) will be about to be over I will go to Prantij. " There is nothing particular in this letter.
She, however, did not stay at Bombay for two months but left for Prantij before June 4, 1947 for some reason which was possibly not true.
The petitioner wrote letters to her on May 2, 6 and 14.
In his letter of May 2, he says that she must have told about her pregnancy to Sharda and that he, himself had not told anyone about it.
In his letter of May 6 he said: "You tell Sharda that you are pregnant so that Mama can know it.
Consult Sharda about food and reading who will also guide you.
So you should not become anxious at all.
Convey to Champaklal through Sharda so that he may prescribe medicine for you, hence you may not have any trouble ahead.
" In his letter of May 14, he said: "You must be taking good food and I think you must have consulted Champaklal." In his letter dated May 31, he, for the first time, acknow ledges receiving a letter from her.
It must be the letter of May 12, as therein he refers to her intention to go to Bombay from Gamdevi.
There is nothing particular in this letter either.
The petitioner 's first letter to the respondent in June is dated June 3, 1947.
It refers to the receipt of her air mail letter from Bombay after a long time.
It appears that letters of May 12 and May 24 were not sent by air mail.
Her sending a letter by air mail 'on or about May 30 from Bombay indicates that she felt the urgency of communicating something to the petitioner.
The contents of his letter dated June 3 indicate that she had mentioned what she had been suffering from and wanted to leave Bombay for her paternal home.
The letter does not disclose what sort of sufferings there were.
Probably they were due to domestic affairs, as it appears that the relations between the mother in law and the daughter inlaw were not good.
He writes: "If you tell me that I may write a letter to revered mother and father or write a letter to your father to call you at Prantij." Why this urgency? The conditions of living at Bombay could not have been intolerable.
Parents in law would have taken good care of her troubles due to pregnancy.
The urgency of her returning to Prantij could have been due to her feeling 291 that it would be difficult to keep her unduly advanced state of pregnancy a secret for any more appreciable time at Bom bay.
The next letter of June 4 was written by the petitioner, on receipt of the respondent 's letter dated May 24.
This letter too must have been from Bombay, as she appeared to have informed him about the adjoining neighbours talking about them.
Again, it is not clear what was the talk.
The talk might have had reference to their marital relations with particular reference to her pregnant condition, as it is said in the letter: "Let people talk about me and you, but as long as we each have complete confidence over one another which is there to fear for us.
" On June 11, the respondent wrote to the petitioner.
It appears that she returned to Prantij from Bombay on or about June 4, as she said: "A week has passed since I came to Prantij".
She states that she told her mother in law that she wanted to go back to her paternal house, as she was not keeping good health.
There is no reference in this letter to what type of bad health she was keeping.
She makes a significant statement in this letter.
It is: "She (namely the mother) asks me to take away the ornaments, take care of my health and to return in the 7th Month .
I said I did not want to take ornaments because I would have to take care of them on my way." Another statement of hers which is of some significance is: "My health has improved very much.
Blood in my body has very much increased.
" It appears that her excuse to her mother in law for going to her parents ' house was not a true one.
Her reference to im proved health and increase of blood in the body seems to indicate that she was feeling the enlargement of her abdomen.
The contents of this letter were interpreted in some such way by the petitioner who, in his letter dated June 22, wrote in the very second paragraph: "I am asking you what is the month of your pregnancy".
Such a question indicates that lie probably felt surprised at this condition of her abdomen and having studied sex litera ture, as appears from his letters to her, he had his doubts how within such a short period of the marriage the respondent could have such an enlarged abdomen.
This letter contains some very intimate details.
The petitioner asked her to destroy it after she had read it and also to destroy his previous letters.
L/P(D)ISCI 10(a) . 292 Such a suspicion expressed in his letter makes the respondent write a very curt letter on July 2, 1947.
In that letter she said: "How are you to know how many months I have advanced in pregnancy.
I am really so very angry with you today that I cannot understand what I should do with such a man.
Do you not yourself know that you ask me how many months I have advanced in pregnancy.
Calculate (months) in your own mind only.
" In between, the petitioner had written another letter to her on June 27, on receipt of her letter dated June 17.
This letter also contains some significant statements: "Now belly appears big and I feel what kind of baby would be born .
At present I appear very fat.
I do not understand from where so much blood has come. .
This letter was acknowledged by the petitioner by his letter dated June 27.
In this letter again the petitioner wrote: "Please write how many months of pregnancy you have passed".
The letter was comparatively a very formal letter.
On June 28, 1947 the respondent writes to the petitioner in her letter: "I am keeping good health etc .
Now I have to pass only five months .
The belly gives the appearance of a big water pot and one becomes nervous to see it .
A nurse comes to examine me every Sunday.
I had once told her that something was moving in my belly and had asked her as to after how many mont hs these movements must be starting.
She said that my baby to be born would be very healthy because a child would make movements after the fourth month only if it was healthy.
I am very much worried.
If the child would be strong I myself would die.
How then would it be born? .
I go for a walk daily.
I walk two miles one mile while going and one while coming back".
It is clear from this correspondence which passed between the parties in the month of June that the respondent noticed her belly to have enlarged sufficiently between June 11 and June 17, i.e., between the 107th and 114th day, counting from March 10 and adding 14 days to the total, that she had felt the quickening of the foetus sometime before June 28 and that the petitioner had some doubts about her condition being compatible with conception having taken place on or after 293 March 10, 1947.
Patel J., made an error in ignoring the letter of June 17, 1947 and in calculating the days upto June 28 to be 155 instead of 124.
The respondent thus noticed the .enlarged abdomen at the end of the 4th lunar month of pregnancy.
She appears to have felt it before June 16 as she had .spoken about it to the nurse on a Sunday.
The Sundays previous, fell on June 23 and June 16.
It appears that she did not speak on the 23rd as she did not say so in her letter of June 28 and said there: 'I had once told her '.
She must have told the nurse latest on Sunday, June 16.
Two other statements in her letters also tend to indicate that her condition in the beginning of June had been such as probably gave rise to suspicions in the minds of persons about her pregnancy.
These are her statement in the letter dated June 11 that her mother in law asked her to take away all ornaments.
Ordinarily a mother in law would not have liked her daughter in law to take away all her ornaments when she be going to her maternal place for a few months.
Such a request might have been on account of her suspecting that she was in a much more advanced stage of pregnancy, than would 'have been expected in a case of pregnancy subsequent to marriage.
The other statement is in the petitioner 's letter of June 4 referring to her letter of May 24 stating that adjoining neighbours talked about it.
Why should neighbours talk about the petitioner and the respondent prior to May 24, 1947? The talk must have been in connection with her pregnancy and its stage.
The relations between the husband and wife are of no concern to the other people, except when they provide matter for scandal.
This means that her abdomen had enlarged noticeably by May 24 and therefore could indicate to people that her pregnancy was of a duration much larger than of about 74 days, which, on addition of 14 days, would be deemed to be pregnancy of 88 days, i.e., about 3 lunar months.
None of the doctors examined in the case deposes that the enlargement of the abdomen would be of such an extent in 3 calendar months of pregnancy, the period being counted from the first day of the last menstruation previous to the conception.
Dr. Ajinkia states that there cannot be perceptible abdo minal enlargement within 3 months and 7 days of pregnancy in ordinary cases and that such perceptible abdominal enlarge ment would be after the 4th month.
He further states that when a woman is pregnant for the first time, the enlargement might not be visible as late as 5 months, and that a huge abdominal enlargement might occur within 3 months and 18 days of pregnancy in certain complications which, we may mention, do not appear to have occurred in the case of the respondent.
On the other hand, Dr. Mehta states that the enlargement of the abdomen is manifest from the 4th month 294 and in any event will be manifest in the 5th month, even if ' the pregnancy is for the first time.
He did not agree with what Alan Brews states in his 'Manual of Obstetrics ', 1957 Edition, p. 84: ". . enlargement of the abdomen usually does not become manifest to the patient until the uterus rises well above the pubes, and therefore seldom attracts attention until the close of the first half of pregnancy.
A multigravida owing to the laxity of the abdominal wall, usually notices abdominal enlargement earlier than a primigaravida.
" We prefer to rely on Dr. Ajinkia 's statement in this respect.
The respondent felt the quickening of the foetus before June 16, i.e., before the 112th day, or before the end of the fourth lunar month from the first day of the menstrual period prior to conception.
That is too short a period.
Dr. Ajinkia stated that the perceptible foetal movement in a woman pregnant for, the first time does not take place before the 20th week from the date 'of her conception and that the expectant mother begins to feel the movement of the child after the 20th week or end of the 7th month of pregnancy.
He further stated that he would not consider it possible for a woman pregnant for the first time to have a marked perception of foetal movement by the 15th week of conception.
When referred to a statement in Modi 's Medical Jurisprudence to the effect that the first perception of the foetal movement occurred at any time between the 14th and 18th week, Dr. Ajinkia expressed his disagreement and referred to statements in the text book of 'Obstetrics & Gynaecology ' by Dugald Baird, and in Eden & Holland 's 'Manual of ' Obstetrics '.
In the former it is stated: "These are generally first felt about mid term .
The movements are often not felt by primigravidae till the end of the twentieth week while multiparae may recognize them as early as the end of the 16th week.
" In the latter it is stated: "Definite history can be obtained.
Quickening is usually found to occur between the 18th and 20th weeks.
Multiparae from former experience, notice the movements earlier than women pregnant for the first time.
" We are therefore of opinion that the statements by the, respondent in her letters to the petitioner about the enlargement of her abdomen and the quickening of the foetus fits, 295 in with her pregnancy being of a longer duration than one starting on or after March 10, 1947, or notionally starting 14 days earlier.
The only thing said against the pregnancy really having been of a greater duration is that the respondent had her body examined by Dr. Champaklal, husband of Sharda, sister of the petitioner, sometime in May 1947, when she was at Gamdevi.
She states that she had some bleeding and therefore consulted Dr. Champaklal who examined her body including the abdomen.
Dr. Champaklal denies having done so.
The High Court has preferred the statement of the respondent to that Dr. Champaklal, as the petitioner himself had advised the respondent in his letters to consult Champaklal.
There is nothing in the letters of the petitioner which he wrote to the respondent from USA in May 1947 which would indicate that she was to show her body to Champaklal.
He simply advised her to consult him so that she may not have any trouble later on.
This was a general advice and in view of her having suffered from morning sickness in the month of April.
In none of the letters by her or by the petitioner in reply is any reference to her bleeding at Gamdevi and to her showing the body to Dr. Champaklal.
Unless absolutely necessary, Dr. Champaklal would not have examined her abdomen and there is nothing on the record to establish anything so unusual in the condition of the respondent as to persuade Champaklal to examine the body of a close relation of his.
We are not prepared to prefer her statement to that of Champaklal in this respect.
It is true that Dr. Cham paklal does not depose to have noticed anything unusual about her condition.
But that does not mean that her preg nancy was not more advanced than what it would have been if the conception had taken place on March 10, or later.
A male relation is not expected to notice such a condition.
We do not therefore consider any non observation by Champak lal of any such enlargement of the respondent 's abdomen as would indicate her pregnancy to be from a date anterior to March 10, to affect adversely the inferences to be drawn from her own statements in her letters referred to above.
In her letter of January 8, 1948, to Sharda, written long after her delivery, for the first time the respondent mentioned that her body was examined by Dr. Champaklal and that if there had been any deceit in her heart she could not have shown her body to him.
There is no mention of bleeding in this letter which was written over four months after the delivery of the child.
The respondent stated about her bleeding and being ,examined by Dr. Champaklal for the first time in her letter to the petitioner dated February 16, 1948, months after she 296 was delivered of the child and the petitioner had in a way severed his connection with her.
This belated statement is, not sufficient to discredit Champaklal.
The respondent suffered from symptoms of toxemia.
She had blood pressure, passed albumen in urine and had swellings on the body.
According to Dr. Ajinkia, there are two types of toxemia, one appearing in the early months, i.e.,, between the 2nd and 3rd month of pregnancy, and the other from the 7th month onwards, and that in the first case there is severe vomiting, dehydration and jaundice which may result in death due to liver necrosis, while in the latter case there is swelling of the tissues due to water retention.
(oedema), rise of blood pressure, passage of albumen in the urine, headache, disturbance of vision, sometimes culminating in fits.
He further stated that oedema, high blood pressure and passing of albumen in urine may take place in the 4th month of pregnancy in a case of chronic kidney disease suffered by a women previously, but not in other cases.
There is no evidence in the present case that the respondent had suffered from any chronic kidney disease.
Dr. Ajinkia stated that he would call it a severe type of toxemia, if a pregnant woman suffering from oedema all over the body, passing albumen in the urine and having high blood pressure does not respond to treatment.
In cross examination he states that the first type of toxemia does not occur again and again during the period of pregnancy and that it does not appear after the third month, and that if the second type of toxemia appears in the early stage of pregnancy it can be concluded that the woman is suffering from chronic nephritis.
Dr. Mehta states in examination in chief that passage of albumen in urine and oedema usually occur at the second period of pregnancy which he described to be after the 3rd month and before the 7th month of pregnancy, but in cross examination states that these can occur at any time and that it is not the case that these occur only in the last two or three months of pregnancy.
When referred to a passage in Williams on 'Obstetrics ', which contained the statement.
"It is a disease of the last two or three months of ' gestation for the most part and rarely occurs prior to the twenty fourth week.
It is most often seen in young primigravidae.
Pre eclampsia is the fore runner of prodromal stage of eclampsia.
In other words, unless the pre eclamptic process is checked by treatment or by delivery, it is more or less likely that eclampsia (convulsions and coma) will ensue." he said that he agreed with what was stated there.
He argeed with the statement in "Progress in Clinical Obstetrics and 297 Gynaecology" by Lews to the effect that the condition ,appears in between 3 and 10 per cent of pregnancies, gen erally later than the thirty second week.
He also agreed with the statement in British Obstetric and Gynaecological Practice by Holland, 11 Edition, P. 256: "In the majority of cases of pre eclampsia signs of the disease do not appear until after mid term and in the majority not until after the thirtieth week of pregnancy." He agreed with what was stated in Dugald Baird 's Combined Text Book of Obstetrics & Gynaecology, 6th Edition, to Ike effect: "Sometime about the thirtieth week of pregnancy the patient, most commonly a primigravida, will be found to have some elevation of blood pressure and she may have noticed some puffiness of her ankles and hands.
After the lapse of days or a week or two, the blood pressure may rise further and albumen, often not more than a trace, can be demonstrated in the urine.
There may be a progressive rise in the blood pressure and oedema becomes more marked.
In severe cases the face, abdominal wall and libia are effected.
" It is thus clear that this type of severe toxemia which results in increased blood pressure, passing of ablumen in urine and swelling of the body appears in the later stages of pregnancy and not usually before the end of the 6th month, i.e., not during the period of 168 days of pregnancy, that is to say, not to take place before August 10, 1947 in the case of the respondent who was married on March 10, even if for the purpose of duration 14 days are added to the period following March 10.
The respondent stated in the examination in chief that when she went to Prantij from Bombay, which was about the 4th of June 1947, she had swelling on her feet, hands and face.
In cross examination she further stated that she had swelling over these parts and also high blood pressure in June and that the passing of albumen and swelling of hands and feet continued till delivery but there was no high bloodpressure at the time of delivery.
The Court below did not act on the statement of the respondent about her having the symptoms of toxemia in the month of June as none of the letters on record written in June makes reference to such a condition of hers.
This is true, but that does not necessarily mean that she did not have such symptoms in the month of June.
They might not have been very severe that month and the severity appeared in the month of July.
Letters on record amply make out that she was suffering from a severe type 298 of toxemia in July.
It has been urged for the respondent in connection with her alleged toxemic condition in the month of June that her statement in her letter dated June 28 about her walking 2 miles a day is not compatible with her state ment in Court and the suggestion for the petitioner that she was suffering from toxemia in the month of June.
The statements of the respondent in her letters can be used against her as her admissions, but cannot be used in her favour accepting them to be correct statements.
If she was pregnant at the time of marriage she must take such steps up to the time of delivery as to allay the suspicion that she had been really pregnant at the time of marriage.
She may therefore be inclined to make wrong statements in her letters to prepare for any plausible explanation when the delivery took place before the expected time on the basis of her conception after marriage.
There is therefore no reason not to believe her statement that she did have such trouble of a milder kind in the month of June.
Severe trouble does not usually come at once.
It develops from a mild stage.
By June 4, 1947, the duration of pregnancy, if.
due to coitus on or after March 10, can be at most 100 days, a little over 3 1/8 lunar months, and according to the medical opinion, toxemia in the form of blood pressure, oedema and passing of albumen in urine does not occur after such a short period of pregnancy.
It is to be concluded that by the end of May the duration of her pregnancy was of about 6 months.
This fits in with the petitioner 's contention that she was pregnant on March 10, when the marriage took place.
A brief reference to the correspondence which shows that she was suffering from toxemia from the month of June 1947 may be made now.
The first letter in this connection is dated July 12, 1947.
It is Champaklal 's letter to Kodarlal, father of the respondent, and was written on receipt of the respondent 's letter addressed to Sharda.
The respondent must have written that letter on or about July 10.
Champaklal expresses worry on having the news about her health.
He states: "It is not a good sign if she has oedema on the legs and abdomen in passing the urine, and hence you keep Sushilabehn immediately under the treatment of a doctor either in Ahmedabad or at Bombay.
Dr. Pandya at Ahmedabad is also a good doctor. continue the medicine as long as she advises.
You can consult her and then inform us immediately.
" Sharda had herself written to the respondent on July 13, 1947 suggesting that she should go to Bombay for consultation about her health.
Champaklal again wrote to 299 Koderlal on July 20, after receipt of letter from him and stated : "The medicine prescribed by Dr. Pandya is proper and I am sure that there will be complete cure.
Follow her advice as regards medicine and food directions.
If she has given advice for her not.
taking salt do follow it and if advised to live entirely on fruits and milk do follow the same because if proper care is not taken for this disease there will be epileptic fits at the time of child birth and the case will be serious.
Your doctor has warned you from now by examining the urine and it is good that you have taken a warning and you have taken good precautions from now and hence I am sure that she will definitely improve.
" Champaklal 's letter dated July 28, again on receipt of a letter from the respondent 's father, asks the latter to in form him as to how the respondent 's oedema stands.
On July 24, the respondent 's father wrote to the peti tioner 's father stating therein: "My daughter Sushilaben was got examined by Miss Pandya and her opinion is that she is passing albumen in her urine and that she is suffering from blood pressure.
Her health is good.
This is all.
" Manilal, the petitioner 's father replies to this letter on July 27 and writes: "Very pleased to learn that Sushilabai has been 'shown ' to the doctor and the medicine has been continued and that she is keeping good health.
Very pleased to learn that you and the members of your family are keeping well.
Here we all of us are keeping well, so much".
With affection of Manilal 's Jai Gopal.
" The letter in a way, is a cold one.
He has not stated what would have been both an expression of his feeling at the time and would also have been very polite in the circum stances.
He expressed no concern and did not write that he be informed about the respondent 's condition from time to time just as Champaklal happened to write in each of his letters.
It is to be noted, however, that both Kodarlal and Manilal use language which could not have been correct factually.
Kodarlal says her health is good ' and Manilal expresses his pleasure on receipt of the letter.
300 The respondent 's letter dated July 2, 1947 was the only letter written to the petitioner in the month of July.
No other letter is on the record and the petitioner states in his letter dated July 27 that he had not received any letter from her for a long time and was therefore very much worried.
The petitioner wrote to the respondent on August 6, 1947 stating that he was awaiting her letter and that Champaklal and Sharda had informed him that her health was very bad and she was not in a position to write a letter.
He asks for further news of her health by wire.
It is his letter dated August 12, 1947 which makes a reference to the respondent 's letter dated August 4 which he thought was received after about a month of her previous letter.
Thus it is clear that for about a month between July 2 and August 4, 1947, the respondent 's condition was such that she was not even able to write a letter.
It was when her condition had become very bad that news of her ill health was conveyed to Sharda by letter on or about July 10.
The last letter which the respondent writes to the peti tioner is dated August 13.
In this letter she writes: "As my health was very bad, a letter was sent to Shardaben and my father also wrote a letter to Champaklal.
At that time he had written that Dr. (Miss) Pandya would be called in and treatment by her would be started; so we are taking her the treatment by her accordingly.
We did not write to you for the simple reason that that would have caused you anxiety.
The treatment is still continued.
But there is no change.
There are swellings all over my body and I am feeling extremely weak.
Consequently, I have not even the strength to write a letter.
We had consulted Miss Pandya and Dr. De Monte and Doctor Anklesaria at Ahmedabad.
So according to them poison is passing in the urine and along with it there is also the blood pressure and so it is likely that the case may be serious case of delivery and I might get convulsions at that time.
That is why, right from now they have altogether stopped me from taking salt and they have also stopped me taking food, so as to avoid the rise of blood pressure.
I am on the diet of mere milk and fruit.
Also my medicines are continued.
My dear, the exertions of writing even this much are causing a severe giddiness in my head and so I now stop.
" 301 As a post script to this letter she had further written: "They are attending all right on me here.
Possibly, they are going to take me to Ahmedabad or.
Bombay, for the delivery, because in a village ' like this, there is not sufficient equipment available.
" The petitioner 's letter dated August 25, 1947 makes reference to the letter from the respondent 's sister dated August 17.
The respondent 's letter dated August 13 is a very good synopsis of her condition and of the reasons for not inform ing the petitioner of her ill health.
It is clear from this letter that Shardaben was informed in about the first week of July only when her health had deteriorated to a large extent as she said in the letter that a letter was sent to Shardaben as her health was very bad.
Kodarlal informed Manilal even later,.
on July 24.
There is therefore no reason not to accept the respondent 's statement on oath that she had suffered from blood pressure, swellings and passing of albumen in the urine in the month of June and that she had oedema on her legs, ankle and feet when she left Bombay for Prantij on or about June 4, 1947.
The doctors who examined her and whose names are given in her letter dated August 13, have not been examined.
No explanation has been given for not examining Dr. De Monte and Dr. Anklesaria.
It is said that Miss Pandya refused to appear as a witness as she had not kept notes about the respondent 's condition, remembered nothing about it and would not be able to depose anything in Court.
We do not consider this to be a good explanation for not calling a relevant witness.
Under the stress of oath and cross exami nation Dr. Pandya might have recollected things which could have a bearing on the case.
Madhuben, the nurse examined for the petitioner, deposed about the respondent 's condition and that is not much different from what the respondent her self stated in Court and in her letters.
Madhuben states in this connection: "About two months before the date of the delivery of the respondent I was called at the house of Sushilabai.
At that time I had examined Sushilabai.
At that time I noticed that there was swelling over the hands and feet of Sushilabai.
I also noticed that Sushilabai was weak in her health and she had trouble about the passing of the urine.
Her urine was examined.
It was noticed that she was passing albumen in urine.
At the 302 time when I examined Sushilabai at her house, she had the 7th month.
She was not taking proper food.
" As the delivery took place on August 27, Madhuben was describing the respondent 's condition in about the last week of June.
She has been disbelieved for remembering this con dition of the respondent as she was not expected to remember this after such a lapse of time.
We see no reason to disbe lieve her when the respondent herself admits her suffering from these symptoms of toxemia.
If Madhuben concluded from these symptoms that the respondent was in the 7th month of her pregnancy, there is nothing to be surprised at that, as, according to the medical opinion already discussed, such symptoms do not appear before the 7th month.
Madhuben deposes that she used to visit the respondent at intervals of 8 or 10 days during those two months.
The respondent denies that Madhuben ever attended on her except at the time of her delivery.
According to her, a lady doctor of Himat nagar used to look her up every Sunday.
This lady doctor has not been examined.
It is alleged that she had left the place and her address could not be known.
The respondent said in her letter to the petitioner, dated June 28, 1947: "A nurse comes to examine (me) every Sunday".
There is some dispute about the word 'nurse '.
The original word in Gujarati was 'bai '.
The correctness of the official translation of that word does not appear to be questioned before the trial Court or in the grounds of appeal to the High Court.
We see no reason to disbelieve Madhuben 's statement which, so far as the condition of the respondent goes, finds support from what the respondent herself states and also from the medical opinion about the stage of preg nancy when the symptoms observed by her occur.
The respondent 's letter dated August 13, 1947 indicates the extreme severity of the toxemic condition she was in at that time.
Doctors were contemplating the possibility of the respondent 's suffering from convulsions at the time of de livery and therefore of moving her to Ahmedabad or Bombay where there was sufficient equipment to deal with a compli cated case of delivery.
Now, we may consider the expected condition of the child, born after 171 days of conception, as a result of the respondent 's suffering from mild toxemia for about a month and thereafter from severe toxemia for about 8 weeks prior to delivery.
With respect to the effects of toxemia from which a mother suffers, on the expected baby, Dr. Ajinkia states that if toxemia starts at the end of the 4th month of pregnancy 303 and in spite of the treatment there is no change in toxemia for a period of 7 weeks thereafter, the condition of the child delivered 169 days after the marriage would most probably be a still birth.
Dr. Mehta states that the effect of toxemia in the mother, speaking generally, is that the baby will be under sized and feeble, though if toxemia be 'of a short duration, the baby may not be affected.
He, however, states that toxemia starting at the end of the 4th month of pregnancy and showing no change in spite of treatment for a period of 7 weeks thereafter, would result either in the child 's dying in the womb or in being delivered of on a premature date.
The respondent 's suffering from toxemia for about 2 1/2 months at least prior to the delivery and from a very severe type of toxemia for about 7 weeks before the delivery, according to the medical opinion, would be an important factor in reducing the weight of the child born.
There was nothing in the progress of the pregnancy of the respondent which could be conducive to the increase in weight of the foetus which would result from conception on or after March 10.
A child born of a mother, who had so suffered from toxemia, after the full period of gestation can be 4 lbs.
but a child born of such a mother after a period of 171 or 185 days of gestation cannot be 4 lbs.
and will be less than 2 lbs.
In fact, according to the medical opinion, the child born in such circumstances, should have been either dead already, or one which would die soon after delivery.
The High Court relied on the statement of Dr. Mehta that though Such is the normal expectation, certain children may survive on account of their ' inherent vitality.
We do not think that an extremely premature baby born of a mother who had suffered from severe toxemia has any chance of having such inherent vitality.
The delivery took place at the Prantij Municipal Dispensary, Maternity Ward.
Madhuben, witness No. 2 for the petitioner.
was working as a mid wife at the hospital and had attended to the delivery of the respondent.
She states that she had weighed the child and it weighed 4 or 4 1/2 pounds, that it was a mature child which was born after the expiry of the full period of gestation and that the child was a normal one.
Her statement finds support from Exhibit K, one of the in door case papers relating to the respondent at the hospital.
Madhuben states that Kachrabhai, the compounder, made entries in this paper under her instructions.
Exhibit K, as printed, shows that the portion of the column under 'disease ' was torn.
We have seen the original and could clearly read the word 'normal ' and the other word may be 304 either 'labour ', as stated by Madhuben, or 'delivery '.
It records. 'Female child, weight 4 pounds '.
The details noted about the interval between the starting of the labour pains and the delivery do not indicate that there was anything abnormal.
Kacherabai, the compounder, was examined by the respondent as witness No. 2.
According to him, a white paper known as 'the maternity card ' is also prepared along with the brown paper, which Exhibit K is, and that the white paper which must have accompanied Exhibit K was missing from the record.
A photo copy of the pro forma white paper was taken on record.
It requires entries about previous obstetric history and various other matters observed at the time of admission of a maternity case.
There is no reason to suppose that the relevant white paper was removed from the records by the petitioner or by someone at his instance and that it contained matters which would show the entries in Exhibit K to be wrong or the statement of Madhuben to be inaccurate.
Kachrabai states that all the records at the hospital remain in the custody of the Doctor, that they are kept under lock and key, that the key remains with the doctor or with him and that they were the only two responsible persons in the dispensary.
he has also stated that in the file there were some other brown papers also for which there were no corresponding white papers and that he did not charge the petitioner with the removal of any white paper from this file and that it was no fault of the petitioner if any white paper was not on the file.
He has also proved the entry with respect to the respondent 's delivery in the Maternity Admission Register.
The entry is Exhibit 15.
It also mentions the weight of the child to be 4 lbs.
It has a 'dash ' in the column for 'conditions of the child '.
Kacherabai states that this 'dash ' meant that the condition was good.
A 'dash ' which is found in the column 'still born, miscarriage, abortion ' cannot mean 'good '.
'Dash ' in the column of 'condition of child ' may mean 'good ' as deposed to by Kacherabai.
Any way, it must mean that there was nothing particular to note about the condition of the baby.
Gokhale J., accepted Mahuben 's statement about the weight of the baby and its condition but did not accept the statement that the baby was born after a full period of gestation.
He considered the delivery to be premature.
Patel J., considered Madhuben to be unreliable, assumed the weight of the baby to be 4 lbs.
and accepted the res pondent 's statement about the condition of the baby and its being born premature.
Patel J. remarked, in meeting the submission for the peti tioner that Madhuben was living at Vrindaban and was leading a pious life and had no reason to make untrue statements 305 that sometimes such persons might be bigoted and narrow minded.
He did not believe her statement that the child was kept on glucose for two days in accordance with the practice ' followed in the Prantij Hospital, as normally mother 's milk is available only after two days after the birth of the child.
The statement is said to be contrary to those of most of the standard books referred to by the experts on behalf of the parties.
Madhuben was not questioned about it and we have not been referred to any statement to the contrary in any book on the subject.
He did not rely on the entry about the condition of the child as the various entries in Exhibit 17 showed that the condition of children weighing 3 lbs.
or 4 lbs.
or 6 lbs.
was similarly noted.
The description of the condition of a child as good, need not have a necessary relation with the weight of the child born.
It is to be noted that, according to the entries in the Maternity Admission Register, Exhibit 17, most of the children born in the Prantij Hospital weighed 4 lbs.
or less.
The condition of all the children could not have been such as to require special mention.
It may, however, be pointed out that no entry in Exhibit 17 shows the weight of the child to be 6 lbs.
Patel J., suspected the genuineness of the entries in the hospital records as he mis read Kacherabai 's statement and so erroneously thought that the hurry with which the papers were produced by the Doctor raised some suspicion.
Kacherabai, the compounder, examined for the respondent on May 7, 1950, stated: "Doctor has returned to Prantij yesterday.
He had gone to attend some marriage about 3 or 4 days ago." Patel J., however, happened to mis read this statement and observed, in dealing with the question of normal delivery, "Keshavbhai (Kacherabai?), the witness of the respondent, the compounder, said that the doctor left only a day before his giving evidence, i.e. he, left on the 6th.
The hurry with which the papers were produced by the doctor may raise some suspicion.
" The fact is that Dr. Modi who was attached to the Prantij Municipal Dispensary in May 1959 was present in Court on May 2, 1959 to produce the documents summoned from him.
He was not in a position to be present in Court between 3rd and 6th May on account of a marriage which was to take place on May 4.
He, therefore, filed an affidavit that day stating the facts and requesting the Court to excuse his absence from Monday, May 4, 1959, till the morning of Thurs 306 day, May 7, and expressing his readiness to leave the records in the custody of the Court or such other person as the Court directed.
The order sheet of the trial Court dated May 2, 1959shows that the petitioner 's counsel requested the Court to take the papers in its custody as the Doctor had come with the relevant papers.
Counsel for the respondent had no objec tion.
The records came in the custody of the Court in this.
Patel J., says: "The white paper in respect of the respondent is missing.
The petitioner and his advisers had the first glimpse of the hospital record in connection with this case if any one had it and it is a mystery that the white paper should disappear.
" The order sheet of May 2, 1959 shows that counsel for the; petitioner had tendered in Court Entry No. 63 for the year 1947, i.e., Exhibit J. and indoor case papers of the respondent, Exhibit K.
It adds: "Shri Mehta says that Dr. Modi (the doctor at the Prantij Municipal Dispensary who produced Exs. J & K) does not know of his personal (knowledge) and he is producing the records (maintained) in the ordinary course of business.
Mr. Shah (counsel for the respondent) has no objection.
" It appears that Dr. Modi did not file in Court any white paper.
There is no evidence that the petitioner had the first glimpse of the hospital record and this is clear from the learned Judges using the expression 'if anyone had it '.
The petitioner is not to blame for the missing of the white paper.
When the learned Judge suspected the bonafides of Dr. Modi and the petitioner in connection with the missing of the white paper relating to the respondent 's delivery and was to base a finding on such a suspicion, he should have summoned Dr. Modi and examined him in that connection and should not have left the matter by a mere observation: 'The doctor who produced it could not be cross examined, as he produced the papers in a hurry '.
We should, however, point out that what transpired when Exhibits J & K were produced gave no room for the comment made by the learned Judge.
Patel J., was further of opinion that it was not expected of Madhuben to remember the condition of the child after so many years of the event and because the respondent herself described the condition of the child very much differently and the latter could be expected to have better reasons for remembering its condition than the mid wife.
We may quote the statements of the respondent and Madhuben about the condition of the child.
The respondent said: "The child born to me was a very weak one.
It was a very.
small one.
She was not in a position to cry at 307 the time of her birth.
She did not cry for two days after her birth.
Her eyes were closed.
There were, no hair on her head.
She had no nails on her fingers and toes.
She was not able to suck my milk.
She was reddish in colour.
As the baby was unable to suck my milk, milk was pumped out.
That, milk was thrown away.
The baby was given glucose and brandy.
12 or 13 days after delivery the baby was able to feed from the breast.
" Madhuben said: "After the delivery Sushilabai appeared to be weak but the child was normal.
It was crying.
The movement of the limbs was normal.
The eyes of the child were open and the child was taking glucose.
The cries of the child indicated that the child was a healthy one." "At the time of the delivery of Sushilabai, Dr. Chimanlal was not present.
No other doctor or nurse was called at the time of Sushilabai 's delivery.
I alone attended to the delivery of Sushilabai.
" Madhuben was not cross examined regarding her statement about the condition of the child and the respondent 's version about the condition of the child was not put to her.
The only explanation suggested for this omission has been that the respondent herself was not present in Court that day and therefore could not have instructed the counsel in that regard.
The explanation is feeble.
The respondent was in Bombay on the day Madhuben was examined.
She must have known that Madhuben had been summoned for evidence on that particular day and if she did not attend the Court that day it must have been with a purpose.
A party has to give instructions to his counsel in good time and has not to put that off till the actual date of hearing.
Madhuben was questioned as to how she remembered these facts and stated that during the proceedings of the case at Baroda, somebody had made enquiries from her and therefore she was reminded of the respondent 's delivery.
This too must have happened in 1.948.
It appears to us that the reason for her remembering the details of the respondent 's delivery could be the very fact which is the matter in issue in this case.
The respondent belonged to a respectable family of the place which is not a large one.
The date or at least the month of the marriage would be known in the locality.
The delivery took place within an unusually short period of the marriage.
It appears that people of the locality talked about it.
In these circumstances, Madhuben could have recollected of this particular delivery when questioned about it.
308 It is very difficult for a witness to state on oath why he remembers a certain fact which took place long ago and the witness therefore makes his best to answer it at the spur of the moment.
We do not consider the long period lapsing between the delivery and Madhuben 's statement in Court sufficient to justify ignoring her statement or consider her to be an unreliable witness when there is no reason for her to depose falsely, nor the fact that she stayed at the place of Manilal, fattier of the petitioner, in Bombay when she came to give evidence sufficient to discredit her.
She went to Bombay from Vrindaban where she had been residing after she gave up service and bad been living the life of a devotee.
It is true that a mother is not likely to forget the condition of the child born to her, but the value of the respondent 's statement depends on her veracity.
Both the trial Court and the High Court in their judgements held her to be an unreliable witness.
Patel J., relies on her statement only so far as it is about the condition of the child.
We do not consider her statement about the condition of the child born to her to be worth reliance.
She describes this condition to be practically exactly what ought to be the condition of a child after a period of gestation amounting to 171 days.
The description given by her exactly fits in with the details of the descriptions found in text books on obstetrics.
She was examined after the doctors examined for the petitioner and for her had made their statements.
Apart from this, she could know from other sources what condition a baby born after that period of gestation should have and could therefore mould her statement accordingly.
Before the remand of the issues by the High Court, it was not her case that the child was born prematurely or that its condition was such as would have been the condition of a child born after that period of gestation.
If the condition described now was the real condition of the child born, there could have been no reason for her to think that her true story of having conceived by her husband after the marriage might not be accepted by the Court.
She could have doubts about it only when the condition of the child did not fit in with the expected condition of a child born after that period of gestation.
If the condition of the child was such as described by her, there was no reason why Madhuben would not have given instructions about the condition to the compounder, for noting in the Hospital records.
That was not the normal condition of the child born, be it after the full expiry of the usual period of gestation or after almost the full period of gestation.
There is no difference in the statements of the doctors examined in the case with respect to the care and attention necessary to be given to a baby born after such a period of gestation.
The respondent was in the hospital till September 8, 309 1947.
She states that great care was taken of the child, but if that extreme care was taken, there would have been some note about it in the hospital records and that itself would have been a very good reason for Madhuben to remember about the. , child 's condition.
We see no reason why Madhuben be not believed when the available hospital records support her.
She has no reason to depose falsely.
In these circumstances, we are of opinion that Patel J., was in error in preferring the statement of the respondent to that of Madhuben.
The weight of a child born, is again a factor which tends to support the statement of Madhuben about the condition of the child and goes against the statement of the respondent.
The child weighed 4 lbs.
Again, there is no difference in the opinion of the doctors examined for the parties that the weight of a child born at about the 6th month of pregnancy would be about 2 pounds.
Such a statement is borne out from what is noted in the various books on that subject.
We see no reason to doubt the statement of Madhuben about the weight of that child.
The entries in Exhibits K and 15 support it.
We do not see any reason to disbelieve the statement of Madhuben that the child was a mature child.
The normal weight of a child born after the full period of gestation is, said to be 6 to 7 pounds, according to Dr. Ajinkia and 5 to 7 pounds, according to Dr. Mehta, but the weight of a normal child depends upon various circumstances.
In this connection, it is worth noticing that Exhibit 17 contains entries about 35 cases of births at the Prantij Hospital between December, 1942 and August 1952, about which Kacherabai was questioned by the respondent 's counsel in the examination inchief.
Out of these the majority of children weighed less than 4 lbs.
Only one weighed 5 lbs.
, one 4 lbs.
and 8 ounces, and twelve weighed 4 lbs.
Only one out of them appears to have died.
It can be taken that the normal weight of the children born at this hospital is about 4 lbs.
It is too much to expect that all these were cases of premature deliveries.
It should not therefore be a matter for surprise and for disbelieving Madhuben when she states that the child born to the respondent was a mature child born after the expiry of the full period of gestation.
Of course, her statement cannot be taken to be literally correct.
What it amounts to is that the child was born after practically the full period of gestation and was definitely not a child born in the 6th or 7th month of pregnancy.
There had been some difference of opinion between Dr. Ajinkia and Dr. Mehta examined for the petitioner and the respondent respectively, about the definition of 'normal labour ' or 'normal delivery '.
Both are agreed with what the 310 expression 'labour ' means.
Dr. Ajinkia states that normal labour would mean a series of processes by which the mature or almost mature products of conception are expelled from the mother 's body and referred to, in this connection, the definition of 'labour ' in Williams ' 'Obstetrics ', 10th Edition, p. 324.
Dr. Mehta agrees with the definition but would not associate maturity or almost maturity of the child with the expression 'normal labour ' and would restrict that expression to mean labour during which no artificial means are used.
He had to admit later that labour has connection with maturity.
When questioned whether normal labour could be compatible with premature birth, Dr. Mehta stated in examination inchief : "It may be termed as a normal labour, but one specifies the term that it was a. premature one.
" We are inclined to prefer Dr. Ajinkia 's view on this point.
However, nothing, much turns on it in view of, our opinion about the weight of the child born and the weight being consistent with the weight of a child born after almost a full period of gestation, as would be discussed later.
We, therefore, accept as true the statement of Madhuben and hold that the child born to the respondent on August 27, 1947 was after normal labour and weighed 4 lbs.
We also believe her statement that it was a mature child and had been born after almost a full period of gestation for reasons we now state.
We now deal with the question whether the child born after 171 days of marriage could survive and live for years, and if so, whether the respondent 's child was born premature or after almost the full period of gestation and refer to what Dr. Ajinkia and Dr. Mehta had said in this connection Dr. Ajinkia states that if special care is taken at the time of delivery and also in the treatment of a child prematurely born at the 28th week of conception, then it may survive.
The special care he refers to is not just giving more attention to the baby by the relations, but of a particular type.
He has described the special care to be taken in the process of delivery and the care required after the delivery.
During the delivery the special care required is in regard to the following matters: 1.
The labour should not be allowed to be prolonged.
As soon as the baby is delivered, its temperature should be maintained.
Oxygen should be given to the child, by special incubators.
Some respiratory and circulatory stimulants will also be required.
Baby will be required to be handled very gently.
Since its resistance to fight infection is low, all the care is taken to prevent infection.
The care required after delivery is in these respects: 1.
Maintenance of warmth.
Maintenance of proper nourishment.
Prevention of cyanotic attacks by giving oxygen.
Prevention of infection as stated before.
The respondent remained in the hospital for about 12 days till September 8.
Madhuben does not state of any such care being taken either during the delivery or afterwards.
In fact.
the hospital did not have the requisite equipment.
Madhuben has stated that abnormal cases of delivery were not attended to at the hospital.
Dr. Ajinkia further deposed that in his opinion even with the skilled care, a child born within the 7th calendar month cannot survive, and in this he is not fully supported by what Taylor states at p. 32 in his 'Principles & Practice of Medical Jurisprudence ', 11th Edn., Vol.
II: "In the absence of any skilled care Hunter 's dictum on the unlikelihood of survival when born before the 7th calendar month remains as true as it was.
" There cannot be any positive definite statement in these matters by any one including a doctor and especially when there have been exceptional cases of whatever veracity men tioned in medical books.
Possibly there had been no such case in the personal experience of Dr. Ajinkia where a child born before the 7th calendar month survived in spite of the care given to the child presumably at the hospital.
Dr. Mehta states that lie had not applied his mind to the question whether a child born after 169 or 171 days after conception would be born alive, but had applied his mind on the footing of 184 days counted from the first day of the last menstruation.
He was not, therefore, in a position to challenge the statement of Dr. Ajinkia that a child born after 169 days from the date of conception would be born dead.
Williams, in his book on Obstetrics, states at p. 186 that at the end of the 6th month, the foetus weighs about 600 grains and a foetus born at this period would attempt to breath, but almost always perishes within a short time.
He further states that in the 7th month the foetus attains a weight of about 1,000 grams and that a foetus born at this time moves its feet quite energetically and cries with a weak voice and as.
312 a rule it cannot be reared, but occasionally expert care is rewarded by a, successful outcome.
Williams, however, states that generally speaking the length affords a more accurate criterion of the age of the focus than its weight.
The weight of the child, however, is a good index of the period of gestation, though it is not as good and accurate as the length of the child born.
The baby 's weight of 4 lbs.
at birth is not consistent with its being born after a gestation period of 185 days.
It is, therefore, reasonable to conclude that the child born to the respondent and weighing 4 lbs.
was not a child born on the 6th or 7th month of pregnancy.
This supports Dr. Ajinkia 's statement.
Madhuben does not state that the child was weak.
The respondent states so.
We do not believe her.
Reference to certain letters may be made in this connection.
Tile respondent 's sister sent a letter to Sharda on August 27 or 28 to which Sharda replied on August 3 1.
It appears from Sharda 's letter that the respondent 's sister 's letter had said that the health of the respondent as well as of the baby was good.
The sister 's letter does not, in any way, convey the information that the baby was very weak and of such a condition as is now described by the respondent.
On August 30, the respondent 's father sent a telegram to the petitioner and said that both the respondent and the baby were well.
On September 3, seven days after the birth of the child, Koderlal sends a letter to the petitioner.
It is in this letter that he states: "After I had been to Marwar, our daughter Sushila has given birth to a daughter prematurely on 27th August 1947, at 'about 10 A.M. in the morning . . and the health of both is very well Intimation has been given to your father by wire and through letter but there is no reply from him." This letter was written after the petitioner 's parents had not responded in any way except by showing extreme indifference to the news of the birth of a grandchild.
That, along with local gossip, must have put Koderlal on guard and even then he does not write anything with respect to the extremely weak condition of the child and simply states that the delivery was premature.
Sushila also writes to Sharda, on the same day, i.e., September 3.
She was still in the hospital and ordinarily the mother of a baby 6 or 7 days old would not have written a letter to anyone.
She writes in this letter: "The health of myself, and my baby is all right.
The baby is very weak Two letters and a telegram about the birth of the baby were sent to the respected Mamma, but there is no reply at all from the respected Pappa.
Hence, all here are 313 very much worried as to why there is no reply from the 'Vevai ' (in laws) even to the telegram.
And as I did not keep good health, the baby was born prematurely before the full period which of course is a matter over which the Almighty has dispensation.
I do not know what idea he (PappaVevai) must be entertaining about me.
To whom, but to you, can I write?. .
A telegram was sent to London to your brother, informing him about the birth of the baby but God knows why there is no reply from him.
" The contents of this letter tend to confirm what we have said in connection with the letter of the respondent 's father to the petitioner.
The respondent and her people had a definite feeling that the petitioner and his people were not responding to the communications probably on account of the idea that the child born was not the petitioner 's child.
The respondent indirectly gave expression to such a feeling by saying that she did not know what idea her father in law was entertaining about her.
Any way, her letter does not state in what respect the baby was very weak.
The expression that the baby was weak in no way conveys the idea that the baby 's condition was such as has been now described by the respondent.
For a baby of mature period, the respondent 's child was certainly weak, but for a baby born after a period of about 6 months ' gestation, the baby born was not weak at all.
The respondent sends a letter to the petitioner on December 22.
She expresses her grievance at not being informed first of the petitioner 's return to the country, and states, "No one can be a match for nature; God alone stands for truth.
Please forgive my mistakes if any.
" These expressions also make out that she was fully conscious by this time that the indifference of her husband towards her was on account of the feeling that the child born was not his.
Still in this letter she does not give a full picture of the condition of the child born to her in order to impress the correctness of her implied statement that the child was really of the petitioner.
That was the time when she and her people, could have placed facts and evidence in the form of either statements from the doctors or references to the doctors to whom the petitioner could refer for such information which could have supported the respondent 's assertion.
When no reply was received to this letter, it was then that the respondent wrote a letter to Sharda on January 8, 1948 and over a month later to the petitioner on February 16, 1948.
314 Reference has been made to these letters earlier in connection with the allegation that Champaklal had examined the respondent 's body in May 1947.
In her letter to Sharda, she is more explicit than what she was in her letter to the petitioner on December 27.
She said: "Hence I open out my heart to you this very day (and say) that I am absolutely innocent.
I was in M.C. about ten days before the marriage It did not occur to me, even in my dream, that an accusation of such a roguery would be brought against me .
To throw such an infamy on a person coming of a respectable family would indeed be the limit; Behen: You are kind and please think full well over this matter and bring it to end.
As to whether it is your child or not, well, you may see it and satisfy yourself as to whether or not its appearance and features tally (with yours).
" It is clear now, from this letter that she was fully con scious of the accusation against her, conveyed through silence if not through letters.
Yet, in this letter, except for asserting her innocence, she does not come out with the facts about the condition of the baby and the extreme care taken by her.
She wrote in similar strain to tier husband on February 16, and stated in that letter: "I was keeping weak health and was suffering from blood pressure and only on account of that the delivery has taken place earlier It is, therefore only the feeling of revenge entertained by the persons who have poisoned your ears towards me and the members of my family.
Further, if I were at fault and if I wanted to hide something from you then I would not have taken proper care of the child who was and is still weak due to its premature birth and consequently it would have died and I would have told (you) that there was some thing like miscarriage.
But as my conscience was clear and as I had trust in you I took proper care of it and brought about improvement in its health.
It may well be that as you have not known me fully that you have got suspicious.
But if you live with me you will be convinced that out of jealousy and revenge an absolutely false charge has been put on an innocent woman.
" It is for the first time in this letter that something is said of taking proper care of the child who was weak.
Even in this letter she had not given a description of the condition of the 315 child at the time of its birth a condition which would have sufficed to convey the idea that the child born was really am, child of about 6 months ' pregnancy.
The letters of the respondent and her relations subsequent to the birth of the child do not bear out the respondent 's statement about the condition of the child at the time of its birth and.
therefore, do not in any way discredit the statement of Madhuben about the condition of the child born and its weight.
True that there had been instances of children born after a comparatively short period of gestation and that they had survived a few for some years too.
But such cases are few and it may be open to doubt whether the period of gestation reported was absolutely correct.
In this connection we may refer to Table No. 2 at p. 560 of 'British Obstetric & Gynaecological Practice ' by Holland & Bourne, 11 Edn., which relates to Total Consecutive Births, Male, Classified by Birth Weight & Gestation Time.
It also mentions still births and neo natal deaths among them.
It appears from this table that out of 7,037 cases of births, there were 3 births i.e., .043 per cent with a gestation period between about 155 and 175 days, that all those three were cases of still births or neo natal deaths and that the weight of each child was 1 lb.
or so.
There were 4 births i.e. 057 per cent with a gestation period between 170 and 185 days.
All the four of them, were cases of still births and neo natal deaths.
Only one of them weighed 6 lbs.
Two weighed 2 lbs.
each and one weighed 1 lb. 13 i.e., .19 per cent were births with a period of gestation between 185 and 200 days.
12 of them were cases of still births and neo natal deaths.
Only two weighed 5 lbs.
each, one of them surviving; one weighed 4 lbs.
Three weighed 3 lbs.
Six weighed 2 lbs.
each and one weighed 1 lb.
Dr. Mehta states that a baby born 169 days after conception would weigh between 1 1/2 and 2 lbs.
A child whose weight at birth is 4 lbs.
might in rare cases be a full term baby, but ordinarily it was taken to be a premature baby, according to him.
and a 4 lbs.
full term baby was a rare occurrence.
The learned Judges considered the delivery premature on account of the respondent suffering from toxemia.
We do not agree.
Dr. Ajinkia states that a premature delivery is one which takes place between the 28th week and the 40th week from the date of conception and that miscarriage means the expulsion of the product of conception before the 28th week of con ception.
He has also stated that the shorter the period of gestation, the more feeble would be the child and fewer would be the hours of its survival, while a child born out of miscarriage could not survive even with special care because it 316 was not a viable child.
By viable he meant that the child has been sufficiently developed to continue separate existence from the mother.
He is emphatic that a child could not be viable even before the 28th week, say 25th or 26th week.
Dr. Mehta, on the other hand, states that a child is sup posed to be normally viable about the 28th week, that there can be exceptions and a child might be viable before the 28th week and could be born alive and could survive.
He said that he made this statement on the basis of knowledge which he had acquired from the standard books and referred to three cases mentioned in De Lee 's Book.
Dr. Mehta has further stated with respect to premature deliveries that premature delivery could be before the 28th week.
At first he stated that he could not say how long before such a delivery could be, but when pressed in cross examination he stated that a 20 weeks ' foetus, if ejected alive or dead from the body of a woman it would be a premature birth.
He admitted that abortion was different from premature delivery and also stated that if the delivery took place before the 28th week it was termed either miscarriage or abortion, but added that if the child born was a viable child, then such a delivery would be called a premature delivery.
He could not contradict Dr. Ajinkia 's statement that a child born after 169 days from the date of conception would be born dead.
We may refer to what is stated about premature termination of pregnancy in British Obstetric Practice by Holland, at pp.
559 561, 2nd Edition: "Premature termination of pregnancy may be defined as termination of the pregnancy after the twentyeighth week (accepted date of viability of the foetus) and before the fortieth week, counting from the first day of the last menstrual period.
On the other hand, most writers on the subject of prematurity tend to define the condition in terms of the weight of the baby rather than in terms of the maturity of the pregnancy.
It was first laid down by the American Academy of Pediatrics in 1935 that a premature infant is one that weighs 5 1/2 lb.
(2,500 gm) or less, regardless of the period of gestation.
This definition was accepted by the International Medical Committee of the League of Nations and has gained universal acceptance, in spite of its scientific inaccuracy.
Most obstetricians have seen babies of less than 5 1/2 lb.
born after a gestation period of more than 280 days.
Indeed, birth weight and duration of pregnancy are far from perfectly correlated.
Infants weighing less than 5 1/2 lb.
at birth may even be post mature.
This 317 is well shown in Table 2 constructed by Kane and Penrose from 7,037 live births from University College Hospital records.
It is seen that 470 babies weighed less than 5 1/2 lb., but that III (23.6 per cent) of these under weight babies were born at term or later, according to the ordinary method of calculation.
The term immaturity has been suggested as an alternative in view of these discrepancies, but it has not received universal acceptance.
There is, however, more than academic significance in the difference because maturity as such, irrespective of weight, is of the greatest importance in relation to foetal survival.
A baby whose birth weight is 4 lb., if born at thirty eight weeks stands a far better chance of survival, and is more likely to develop into a healthy child, both mentally and physically, than one of the same weight born a month earlier.
" What has been said above about the viability of a child or its premature birth is with respect to a child born of a mother whose pregnancy progressed normally.
The chances of survival of a baby born, of a mother who had suffered from severe toxemia for about two months prior to the delivery, are bound to be much less and would be further less if no special care is taken during delivery and thereafter.
The weight of the respondent 's baby, its condition at birth and its having lived as a mature child born after full period of gestation does, together with the other circumstances connected with the progress of the pregnancy, amply support the petitioner 's case that the child born to the respondent could not be of the petitioner.
We have been referred to several cases in which the question about a child being conceived from the husband or not arose.
Suffice it to say that cases fall into two categories.
One where delivery takes place much more than 280 days after the husband had last opportunity to cohabit with his wife and the other where it takes place much earlier than 280 days from the first day of menstruation prior to conception.
The first type of cases, to which reference need not be made, involve the determination of the question as to the period it took for a sperm to fertilize the ovum.
Nothing precise about the period was known when cases prior to the decision of Preston Jones ' case(1) came up for consideration.
It was considered to vary much and so children born so long as 349 days after the known period of cohabitation were held to be legitimate, as not proved to be the results of adultery.
No such question however arises in the other type of cases as the decision is to be given on the assumption that there had been fertilisation on the first day possible for the coitus between the husband and wife.
The question to determine in such cases is (1)(1951) A.C. 391.
318 whether the short period of gestation would justify the con clusion that the child was born of conception from that coitus or was born as a result of some other sexual relations between the woman and someone prior to that coitus between the husband and wife.
One such case was Clark vs Clark(1) on which much reliance has been placed by the Court below.
In this divorce case, on the petition of the husband there was no evidence of misconduct on the part of the wife and the only evidence of adultery was the fact of the birth of a child the period of gestation of which, assuming the husband to be the father, could not have exceeded 174 days.
The child lived, and,.
at tile date of the hearing was about 3 years old.
The medical evidence was to the effect that a child of so short a period of foetal life would not survive for more than day or two.
In view of tile fact that the date of conception could be fixed very rarely, it was considered that the periods of gestation generally spoken of were notional periods and that therefore where the (late of conception could be fixed and thus the actual period of gestation be ascertained, such period was comparable to the longer notional period and consequently a six months ' child might be comparable to what was called a 7 months ' child.
The facts of that case were very much different from the present case and must have naturally influenced the view that a six months ' child be comparable to a 7 months ' child.
The Court considered the allegation of the husband who lived quite close to where the wife lived for about a year after the delivery, that the child when born was a fully developed 9 months ' child, grotesque.
The Court believed the evidence of the nurse with 30 years ' experience that the child born was one of the two most extreme cases of premature births she had seen.
The wife 's mother deposed about the condition of the child which corresponded to a child born after 174 days of the conception.
The Court believed the statement of the mother of the child.
The lower limbs of the child were in irons even about 3 year& after its birth.
Tile delivery was hastened on account of an accident.
The mother of the child had fallen a day earlier.
The weight of the child, though noted as 3 1/2 lbs.
was not more.
than 2 1/2 lbs., as the former weight included the weight of the towel.
The notional period of pregnancy is calculated from the first day of the menstruation preceding the conception and it is on this account that 14 days are added to the period of pregnancy from the actual date of conception.
On the basis of notional calculation, the fully mature child is born after 280 days.
On the basis of the date of conception, the child is born (1) [1939] 2 All E.P. 59.
319 between 265 and 2 '70 days.
The development of the foetus undoubtedly depends on its age as counted from the date of conception and it is for this reason that the books on Obstetrics mostly deal with the development of the foetus on the basis of, days or weeks after conception, for a period of about 2 months and thereafter they begin to note its development with respect, to the end of the 3rd and consecutive months.
This must be due to the fact that by that time a difference of about a fortnight in the period of gestation does not bring about a substantial difference in tile description of the development of the foetus.
After all, the entire knowledge with respect to the development of the foetus with respect to the period of gestation is based on a consideration of a large number of cases and then arriving at some generalized conclusion about the develop ment of the foetus corresponding to its age from the date of conception.
It would not therefore be very correct to add 1 lunar month to the ascertained period of gestation in cases of a known date of conception merely on the ground that when books speak of a foetus of a certain number of months that foetus might be due to a conception taking place on any day of the lunar month corresponding to the menstruation prior to the conception and the miss period after conception.
In the present case, however, it is known that the earliest ,date for conception can be March 10, 1947.
It is the statement of the respondent herself that about 10 days prior to the marriage she had her monthly course.
It is clear therefore that the notional period of pregnancy in the present case cannot execeed the period from March 10 by more than 10 days.
This means that the notional period of gestation of the respondent 's child cannot be more than 181 days.
We have, however, considered the case on the footing of 185 days which is equal to the period between March 10 and August 27 (both days inclusive) plus 14 days.
There can therefore be no justification in the present case to consider that the respondent 's child, though of 171 days ' gestation after conception, if it be taken to be conceived on March 10, could be notionally equivalent to an age of 171 days plus 28 days, i.e., 199 days.
We are therefore of opinion that Clark 's case(1) cannot be a good guide, both on facts and law, for the determination of the question before us about the legitimacy of the respon dent 's child.
It may be mentioned that Clark 's case(1) was distinguished in Guardianship of Infants Act, 1886 & 1925.
In re.
and In re. section B. an Infant.(2)B. vs B. where it was held that a period of 188 days is too short to be accepted in law as a period of :gestation on the ground that in Clark 's case(3) the child was (1) (2) 1949(1) Ch.
320 not held to be a fully developed nine months ' child but was held, in view of the evidence of the experienced mid wife, to be an extreme case of premature birth.
It was said at P. 110: "There is, as I have said, no such evidence of prematurity here, and it would be straining the facts to assume that the birth was the result of intercourse that took place only 188 days previously.
" It is true that no allegation of any kind has been made about the respondent 's general immorality or about her mis conducting with someone at the time when the child born to her could be conceived.
The mere fact that her character in general is not challenged does not suffice to rebut the conclusion arrived at from the various circumstances already discussed.
The only question before us is whether on the evidence led it is possible for the petitioner to be the father of the child.
The facts and matters we have set out earlier clearly establish that the conception to produce a child of the type delivered must have taken place before March, 10, 1947, and if, as is now the case, the petitioner 's first sexual contact with the respondent was on March 10, 1947, it follows that the respondent was pregnant by someone other than the petitioner at the time of her marriage.
The respondent, in her letter dated February 16, 1948 to her husband said: "Further, you know that one has to insult wicked persons in order to remain chaste.
Therefore those wicked persons who have been insulted are ready to take revenge.
Hence it is only out of jealousy that they poison your ears.
" If this statement is correct, it shows that persons in her village had evil eyes on her and that she had to reject their advances.
We may also now mention certain other circumstances on which the respondent relied to show that however unusual it might be, the child born to her was by the petitioner 's marital intercourse with her after their wedding.
They are: 1.
Reluctance of the respondent to meet even the petitioner before the marriage though the engagement continued for a period of two years and she loved him.
Suggestion to break off the engagement as late as January and February.
Reluctance to abort the child.
Symptoms of vomiting and nausea immediately after the miss of period.
321 5.
The fact that Champaklal, the brother in law of the petitioner did not notice the pregnancy of the respondent which would be sure to have far advanced if the allegation were true, though she lived with him,, and was examined by him.
She stayed up to the end of May at Vile Parle in the house of the petitioner 's father and yet the pregnancy was not noticed.
The progress of pregnancy from the beginning which was consistent only with pregnancy by marriage.
The child being very weak and under weight.
Sudden delivery.
The first circumstance can only indicate that she was moral and did not want to have any irregular connection with the petitioner prior to the marriage.
The petitioner has not challenged her character.
A good general character does not necessarily mean that nobody could have had sexual inter course with her even by force, a possibility indicated by her letter just quoted.
The second circumstance urged is that if she had become pregnant, she could have accepted the suggestion of breaking off the engagement when the petitioner had been expressing his dissatisfaction at his engagement with her.
She could not have been very independent about it.
The engagement was brought about by the parents of the parties though, possibly, with the implied or express consent of theirs.
Breaking off the engagement might have led to scandals.
She wrote to the petitioner in her letter dated May, 15, 1946 that people asked her as to why marriage was not taking place.
A betrothal period of about 2 years is ordinarily a long period, when the parties were of marriageable age.
So this circumstance, again, is of no force.
The third circumstance about her reluctance to abort the child, again, is not of any value.
Abortion, as suggested by the petitioner in his letters of April 5 and 8, too would have led to complications and scandal and it could not have been certain that the abortion would not disclose the longer age of the foetus than what it ought to have been if it was of a connection after the marriage.
We have already dealt with the symptoms of nausea and vomiting appearing immediately after the first miss of the period and ceasing suddenly about the middle of April and held that they appeared to be more consistent with the peti tioner 's case than with the respondent 'section L/P(D) ISCI 11 322 We have also dealt with the possibility of Champaklal 'section observing the stage of her pregnancy when she was at Gamdevi in the month of May and have held that he could not possibly have noticed it.
It is true that there is no evidence that her parents in law noticed during her stay at Bombay, from about the middle of May to June 4, that she was in an unduly advanced stage of pregnancy.
Reference has already been made to the implica tion of the statement in her letter that her mother in law asked her to take all the ornaments with her when she was leaving, for her paternal place on or about June 4.
We have also referred to a letter of her father in law ex pressing no surprise and showing coldness on his part on learning of her condition in the last week of July 1947 and to persons talking about her and the petitioner by May 24, 1947.
It is therefore not possible to say that the advanced stage of pregnancy wits not noticed when she was at Bombay in the month of May.
We have already dealt with the progress of the pregnancy and.
need not say anything more in that connection.
It is not established that the child was very weak and was under weight.
The last circumstance urged on behalf of the respondent.
is the fact of sudden delivery.
The only circumstance alleged in this regard is that her father was not at Prantij on August 27.
Koderlal stated in his letter to the petitioner on September 3 that after lie had been to Marwar their daughter Sushila had given birth to a daughter.
If this statement, as translated, is correct, it shows that Koderlal had returned from his visit to Marwar and not that the delivery took place when he was away from Prantij.
The respondent 's bare statement that her father was not in the village that day, therefore, does not suffice to lead to the conclusion that the delivery was sudden and that no arrangements had.
been made for the delivery and that the delivery did take place after six months of pregnancy.
Further, a sudden delivery need not be a delivery of the six months ' child.
It may be a delivery sometime before the ex pected date.
Even in such a case, no particular arrangements for the confinement might be made by the relations.
We have already referred to the respondent 's statement in her letter dated August 13, 1947 that the doctors were contemplating arrangements for the respondent 's confinement in view of expected delivery, be it on account of the normally expected time of delivery approaching or of expecting an early delivery on account of the toxemic condition of the respondent.
She said in that letter that they were going to take her to Ahmedabad or Bombay for the delivery since in a village like hers there was not sufficient equipment available.
It cannot therefore be said that the delivery was so sudden as to bear out the.
323 respondent 's case that the delivery took place when she bad just completed 6 months of pregnancy.
On the basis of the evidence discussed above and the pro babilities of the case, we are of opinion that the child born to,, the respondent on August 27, 1947 was practically a mature child and weighed 4 lbs in weight and that therefore it could not have been the result of a conception taking place on or after March 10, 1947.
It follows that it was conceived prior .to
March 10 and that therefore the respondent was pregnant at the time of marriage.
Lastly, we may refer to sections 112 and 114 of the Evidence Act.
Section 114 provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to facts of the particular case.
The conclusion we have arrived at about the child born to the respondent being not the child of the appellant, fits in with the presumption to be drawn in accordance with the provisions of this section.
People in general consider that the child born, being of a gestation period of 185 days, cannot be a fairly mature baby and cannot survive like a normal child.
Medical opinion, as it exists today and as is disclosed by text books on Obstetrics and Gynaecology, however, refer to some rare exceptions of livebirths even with a gestation period of a few days less than 180 days.
But we have not found it possible to accept the respondent 's case of the conception having taken place from and after March 10, 1947 for several reasons which we have explained in detail at the relevant place.
We should observe that in the case before us the earliest date on which conception through the husband could have taken place is fixed with certainty, a matter which could not be said of the freak cases referred to in medical literature, for in them the earliest date of conception was a matter of guess or inference.
Besides, we have the feature in the present case, of evidence regarding the various phenomena and bodily changes attending on pregnancy at different stages of its course, and the combined effect of these does preclude any argument of a conception on or after March 10, 1947.
Lastly, we have definite evidence, oral and documentary, of the condition of the child at birth which is wholly inconsistent with a gestation of less than six months ' duration, assuming that a live birth and the child healthy enough to survive is possible with such short duration of pregnancy.
In passing, we might add that we consider it probable that it was because the physical condition of the child at birth approximated to a normal mature child, that the respondent originally put forward a case of pre marital intercourse with the husband a story she could not sustain and which she ultimately abandoned.
1/P(D)ISCI 11 324 Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
The question of the legitimacy of the child born to the res pondent does not directly arise in this case, though the conclusion we have reached is certain to affect the legitimacy of the respondent 's daughter.
However, the fact that she was born during the continuance of the valid marriage between the parties cannot be taken to be conclusive proof of her being a legitimate daughter of the appellant, as the various circumstances dealt with by us above, establish that she must have begotten sometime earlier than March 10, 1947, and as it has been found by the Courts below, and the finding has not been questioned here before us.
that the appellant had no access to the respondent at the relevant time.
It has been found by the Courts below that the petitioner had no sexual intercourse with the respondent prior to mar riage on March 10.
This finding has not been challenged be fore us and appears to us to be well founded.
The only con clusion is that the respondent was pregnant at the time of marriage by someone other than the petitioner.
The next question to determine is whether the petitioner had marital intercourse with the respondent after he had dis covered that she was pregnant at the time of marriage by someone other than himself.
The trial Court found that the petitioner did not have such intercourse after he had discovered about the respondent being pregnant at the time of marriage.
Patel J., did not agree with that finding.
Gokhale J., considered the view of the trial Court to be correct.
The petitioner states that he discovered the respondent being pregnant at the time of marriage by another person when he learnt of her delivering the child on August 27, 1.947 and when be felt that could not be his child.
He has further stated that since his return from abroad he had no intercourse with her and that is not disputed.
The respondent admits it.
There is no evidence to the contrary either.
The last marital intercourse the petitioner bad with his wife was at Bombay, before he left for abroad.
That was between April 23 and 27.
The question then is whether he could have known during those days about the respondent 's being pregnant at the time of marriage.
The respondent does not state at that time she had such ostensible symptoms which could have led the petitioner discover that she bad been pregnant at the time of marriage.
The opinion of the experts on 325 this point is not very decisive.
Dr. Ajinkia has stated in crossexamination that ordinarily the petitioner should have been aware about the respondent 's condition who was in advanced pregnancy when he had coitus with her on April 26 when the foetus would have been 157 days old on the assumption ' that it had started its life i.e., the ovum had fertilised on ember 20, 1946.
He however added that it would not be possible for the petitioner to detect that the respondent was pregnant if the coitus took place in darkness.
He further stated that the woman who is pregnant for the first time has her abdominal tissues so tense that a non medical.
person coming into contact by act of coitus might not be able to detect the enlargement of the abdomen.
A husband, without having medical knowledge, can feel abdominal enlargement without any difficulty during coitus only when the pregnancy is advanced above 6 months.
Dr. Mehta, stated in examination in chief that a man having Coitus with his wife 157 days after pregnancy begins, would immediately know about her being in a fairly advanced stage of pregnancy and added in answer to the Court 's question that he would not know that she had been pregnant for 157 days but only know that she was merely pregnant.
When asked by the respondent 's counsel whether the, husband would or would not have noticed the difference between 1 1/2 months ' pregnancy and pregnancy of 5 months and 17 days he replied that the husband would not notice a pregnancy of 1 1/2 months ' but would certainly notice 5 1/2 months ' pregnancy.
We consider these statements to be of no help in coming to a finding on the point whether the petitioner could discover on April 26 that his wife was not only pregnant but was pregnant from some day much earlier than the tenth day of March 1947 when they were married.
Neither of the two doc tors was questioned as to whether the petitioner could have known that his wife 's pregnancy was of more than 1 1/2 months ' duration, and, unless the petitioner knew that, he could not be said to have discovered on April 26 that the respondent had been pregnant by someone else at the time of marriage, irrespective of the fact whether the coitus that night took place in darkness or in light.
In this connection, we may again refer to what Williams says in his 'Obstetrics ', 12th Edition, at p. 270 : "It should also be borne in mind, that the abdomen changes its shape materially according as the woman is in the upright or horizontal position, being much less prominent when she is lying down.
" We may also say that the mere fact that the petitioner alleges that the respondent gave birth to the child after a full 326 period of gestation, does not actually mean that the child was born after such a period.
The petitioner could not have known when the child was conceived.
By that statement he simply expresses his view, based on the fact that a fairly mature child was born on August 27, 1947 though the marriage had taken place on March 10.
The fact that the child born to the respondent was a mature baby does not mean that it was conceived on November 20, 1946.
We have already indicated that the weight of the child and the surrounding circumstances could only indicate that the child was born after almost the usual period of gestation, though it could not be said that it must have been conceived 280 days earlier.
We therefore hold that the petitioner did not have marital intercourse with the respondent after he had discovered that she had been pregnant by someone else at the time of marriage.
We have already said that there is no collusion between the parties.
The petitioner filed the petition within time.
There is no legal ground which would justify refusing the petitioner a decree for declaring the marriage between the parties to be null and void.
We therefore allow the appeal, set aside the decree of the Court below and annul the marriage between the parties by a decree of nullity.
We direct the parties to bear their own costs throughout.
MUDHOLKAR, J I regret my inability to agree with the judgment proposed by my brother, Raghubar Dayal, J.
The appeal arises out of a petition for divorce instituted by the appellant on April 18, 1956 in the City Civil Court of Bombay against his wife, the respondent under s.12(1) (d) of the .
The petition was decreed by the City Civil Court, but on appeal, the High Court dismissed it.
Certain broad facts which are not in dispute are briefly these: The appellant is a resident of Bombay, while the res pondent 's father was a resident of Prantij in the former State of Baroda.
They were betrothed to each other in June or July, 1945, and their marriage was celebrated at Bombay according to Hindu rites on March 10, 1947.
Thereafter, the couple lived together as husband and wife for a short while, and the respondent then went to her parents ' house at Prantij where she stayed till the third week of April, 1947.
During her stay there she wrote to her husband informing him that she was in the family way.
The appellant was to leave for the United States in connection with the family business, and, therefore, the respondent returned to Bombay towards the end of April of 327 that year.
The husband and wife admittedly had martial relations during this visit of the respondent to Bombay.
After them appellant 's departure.
for the United States, the respondent stayed with the appellant 's father for a few days, and thereafter at Gamdevi in the hous of the appellant 's sister, Sharda and her husband.
She stayed there for about four weeks, and then again returned to her father in law 's house at Vile Parle.
From the correspondence between the parties, it appears that the respondent and her mother in law were not getting on well, and the appellant, therefore, advised her to arrange for her return to her father 's house as early as she could manage it.
In pursuance of this, the respondent returned to her father 's house along with some one who had been sent by her father to fetch her.
There was considerable correspondence between the parties subsequent to this until August 27, 1947, on which date the respondent gave birth to a female child at Prantij.
Information about this was communicated telegraphically as well as by a letter to the appellant 's father and also to the appellant himself.
According to the appellant, he was shocked when he learnt that the child was born to the respondent only 5 months and 17 days after their marriage, and he suspected that this child had been conceived before the marriage through some one else.
After his return to India in November, 1947 he instituted a suit in a Baroda Court for the annulment of the marriage under the Baroda State Divorce Act, but that suit, which was defended on merits by the respondent, was dismissed by the Baroda Court on the ground of want of jurisdiction.
The came into force on May 18, 1955.
Under this Act, it was competent to a person, though married prior to the commencement of the Act, to apply for divorce upon certain grounds including those set out in s.12((1)(d) within one year of the commencement of the Act.
Availing himself of this provision, the appellant preferred a petition, out of which this appeal arises.
In the petition the appellant made allegations against the respondent to the effect that the child born to her was conceived by her through a person other than himself, and that she was actually in the family way before the marriage, of which fact he was not aware at that time.
In her written statement the respondent denied these allegations.
She stated that after their betrothal she succumbed to the entreaties and representations made by the appellant and permitted him to have sex relations with her, and that as a result of this, she had conceived from him.
She further averred that the appellant, his sister and her husband were all aware of this before the marriage, and thus no fraud had been practised upon the appellant and the members of his family by her.
It may be mentioned that such a plea was not taken by the respondent in the written 328 statement which she had filed in the proceedings, which bad been instituted in the Baroda Court.
In her evidence, however, she has confined her averment only to having had sex relations with the appellant before the marriage, and stated that she was not aware at the time of the marriage that she was pregnant.
She added that she came to know of her pregnancy only when she started vomiting, which was after her return to Prantij subsequent to the marriage.
She has not repeated in her evidence the allegations that the appellant or any members of the family were aware of the fact of her pregnancy before the marriage.
Upon the pleadings of the parties, the City Civil Court raised the following six issues: "(1) Whether the Respondent at the time of the marriage was pregnant by some one other than the Petitioner as alleged in para 9 of the Petition '? (2) Whether at the time of the marriage the petitioner was ignorant of the aforesaid fact? (3) Whether the petition is not maintainable for the reasons alleged in para 2 of written statement? (4) Whether the Petitioner 's claim in the petition is barred by the Law of Limitation for the reasons alleged in paras 3 and 4 of the written statement? (5) Whether the Petitioner is entitled to have the marriage declared null and void? (6) To what relief the petitioner is entitled?" The Court answered issues (1), (2) and (5) in the affirma tive, and issues 3 and 4 in negative, and granted a decree to the appellant in terms of the prayer in the plaint.
When the matter went up in appeal before the High Court, the two learned Judges.
Gokhale and Patel, JJ.
who heard it did not feel satisfied that the appellant had proved that the respondent was pregnant by some one other than the appel lant, and that the appellant was not the father of the child which was born to the respondent.
In his judgment, Patel, J. observed : "The question then is whether we should dismiss the petition on this ground.
As mentioned before the evidence is not decisive of the pregnancy of the respondent before her marriage.
The effect of a decree of nullity might be very serious to the child who is living and who is now 10 years old as also to the respondents.
" Gokhale, J. expressed his agreement generally with the view taken by Patel, J, and after pointing out the necessity of obtaining on record expert evidence, said that the case should be sent down to the trial Court to record a finding as to whether 329 it was proved that the respondent was pregnant at the time of marriage.
Accordingly, the following two issues were framed by the High Court and the case was remitted to the City Civil Court for recording a finding: 1.
Is it proved that the respondent was pregnant at the time of the marriage? 2.
Is it proved that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree ?".
It may be mentioned that Mr. Amin, who appeared for the present appellant, contended that a great injustice would be done to him if these issues were required to be determined now.
His objection was, however, overruled by the Court.
Patel, J. pointing out that it would be the respondent who would be in greater difficulty, as her father was dead, and the Munim who was attending to the affairs of the family was dead, and the doctor, who attended on her during her pregnancy, was also dead.
After the matter went back to the trial Court, five additional witnesses were examined by the appellant, including his brother in law, who is a doctor and a Gynaecologist, Dr. Ajinkya and a pediatrician Dr. Udani.
The respondent examined herself as well as Dr. Mehta, a Gynaecologist and two other witnesses.
Upon a consideration of the additional evidence, the High Court allowed the appeal.
Before us, the first point urged by Mr. section T. Desai appear ing for the appellant is that the High Court was in error in ordering the recording of fresh evidence.
It is indeed surprising that the High Court which has correctly stated the legal position obtaining in divorce petitions, should have, upon its considered view that the evidence already adduced by the appellant was not sufficient to justify a passing of decree for annulment of marriage, sent down, despite the opposition of Mr. Amin on behalf of the appellant, two issues for recording fresh findings by the City Court after permitting the parties to adduce additional evidence.
It may be mentioned that the High Court thought that it was doing so to afford to the respondent, whose whole life was at stake, as observed by Patel, J., an opportunity to defend her honour and chastity.
This question, however, did not really arise, if, in fact, the High Court felt that the appellant had not discharged the burden which the law had placed upon him to satisfy the Court beyond doubt that the respondent was pregnant by a person other than himself before the marriage, and that he was not aware of it.
The two issues sent down for retrial by the High Court would seem to suggest that these essential points had been missed by the trial Court.
I have quoted in extenso the 330.
issues framed by the trial Court, and issues (1), (2) and (5) seem to cover both.
the additional issues settled by the High Court.
No doubt, the first issue reads thus: "Whether the respondent at the time of the marriage was pregnant by some one other than the petitioner as alleged in para 9 of the Petition?".
This itself consists of two parts, the first being whether the respondent was pregnant at the time of the marriage, and the second being whether she was pregnant through a person other than the appellant.
The fifth issue is undoubtedly couched in general terms, but it certainly includes the content of the second additional issue.
The High Court was itself cognisant of this because after reproducing (see judgment of Patel, J.) the terms of s.23(1) it has set out what, according to it, would be the issues which would arise.
Section 23(1) so far as relevant reads as follows: "In any proceeding under this Act, whether defended or not, if the court is satisfied that (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, (b) the petition is not presented or prosecuted in collusion with the respondent, (c) there has not been any unnecessary or improper delay in instituting the proceedings, and (d) there is no other legal ground why relief should not be granted, then and in such a case, but not otherwise, the Court shall decree such relief accordingly.
" The issues which would arise, therefore, would be, as pointed out by Patel, J. the following: "(1) Whether the respondent was pregnant at the date of marriage.
(2) If she was whether she was pregnant by some one other than the petitioner.
(3) Whether the petitioner was at the time of marriage ignorant of the facts alleged.
(4) Whether marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
" That the trial Court was itself aware of this, would be clear from paragraph 43 of its judgment.
It has dealt with the argument of Mr. Shah on behalf of the respondent that the 331 condition precedent laid down in s.12(2)(b)(iii) was not complied with by the appellant.
1, therefore, agree with Mr. Desai that the remission of the issues was wholly unjustified and should not have been allowed.
The effect of this, however, would be that the entire evidence adduced thereafter including the evidence upon which Mr. Desai has placed such strong reliance before us will have to be completely left out of consideration.
No doubt, an appellate Court has the power under section 107 of the Civil Procedure Code to remand a case or to frame issues and refer them for trial, or to take additional evidence or require such evidence to be taken.
But the exercise of these powers is regulated by the provisions of 0.41, rr.
23 to 25 and 27.
Under r.23, an appellate Court has the power to remand a case where the suit has been disposed of by the trial Court upon a preliminary point and its decision is reversed by the appellate Court.
Rule 24 provides that where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, it may do so and may proceed wholly upon the ground other than that on which the appellate Court proceeds.
For this purpose it can also re settle the issues if it finds it necessary so to do.
A power to frame additional issues is conferred by r.25, which reads as follows: "Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issue and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor.
" Rule 27 deals with production of additional evidence in the appellate Court and prescribes the conditions upon which additional evidence can be allowed to be adduced in the appellate Court.
Rule 25 circumscribes the powers of the appellate Court to frame an issue and refer the same for trial to the Court below, if need be by taking additional evidence, and permits it to adopt this course only if (a) the trial Court had omitted to frame an issue, (b) try an issue or (c) to determine any question of fact which appears to the appellate Court essential to the right decision of the suit upon the merits.
In this case, the High Court his purported to exercise its powers 332 upon the ground that proper issues were not framed by the trial Court.
I have already indicated above that the content of the two additional issues framed by the High Court is to be found in three of the issues raised by the City Civil Court.
Therefore, there was no scope for the exercise of the High Court of its power under r. 25.
No doubt, the High Court has made no reference to r. 25 when it framed the additional issues and sent them down for a finding; but its action must be referable to r. 25, because that is the provision of law which deals with the question of remitting issues for trial to the trial Court.
I may add that in view of the express provisions of this rule the High Court could not have had recourse to inherent powers, because it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code.
Upon this view it would, therefore, follow that this appeal must be decided only on the basis of the evidence which was before the City Civil Court prior to the interlocutory judgement of the Hight Court remitting to it two issues for findings, leaving altogether out of consideration the evidence subsequently brought on record by the parties.
Before I deal with that evidence, it would be desirable to set out in brief the requirements of the law in a petition of this kind.
The appellant had sought annulment of his marriage with the respondent upon the ground that she was pregnant by a person other than himself before the marriage, and that he was not aware of this fact.
The law of divorce in India, is broadly speaking, modelled on the law of England.
It will, therefore, be useful to refer to the decisions of the Courts in England.
In Ginesi vs Ginesi(1), it was said that in matrimonial cases the same strict proof of adultery is required as in criminal cases, and that the matrimonial offence must be proved beyond all reasonable doubt to the satisfaction of the tribunal of fact.
This decision was criticised in Gower vs Gower(2).
Ginesi vs Ginesi(l) was actually followed in Fairman vs Fairman (3), where it was observed that when a witness gives evidence in matrimonial proceedings that he or she has committed adultery with a party to those proceedings that evidence must be treated with the same circumspection as the evidence of an accomplice in a criminal case.
The view taken in Ginesi 's case(1) has also been accepted in Preston Jones vs Preston Jones(4) and Galler vs Galler(5).
In the first of these two cases, which is a decision of the House of Lords, it was established by evidence that during the period between 186 and 360 days before the birth of the child (1)(1948) (2) (3)L.R. (4) (5) 333 to the wife the husband had been continuously absent abroad and that there had been no opportunity for intercourse bet ween them.
The child was normally delivered, and appeared a normal, healthy and full time child.
It was contended on behalf of the husband that in these circumstances the child must be deemed to have been born of adulterous intercourse by the wife with some one else.
With the exception of Lord Oaksey, the view of the House of Lords was that the onus of proof on the husband in a case of this kind did not extend to establishing the scientific impossibility of his being the father of the child.
Lord Simonds.
Lord Oaksey and Lord Mac Dermott were of the view that in the case of an interval of 360 days between intercourse with her husband and the birth of a child the court cannot, in the absence of further evidence, regard adultery by the wife as established.
Lord Normand was dubitante, and Lord Morton of Henryton dissented from this view.
In the course of his speech, Lord Simonds observed; "The result of a finding of adultery in such a case as this is in effect to bastardize the child.
That is a matter in which from time out of mind strict proof has been required.
But that does not mean that a degree of proof is demanded such as in a scientific enquiry would justify the conclusion that such and such an event is impossible.
In this context at least no higher proof of a fact is demanded than that it is established beyond all reasonable doubt; see Head vs Head(1).
The utmost that a court of law can demand is that it should be established beyond all reasonable doubt that a child conceived so many days after a particular coitus cannot be the result of that coitus." He then added that since writing his opinion he had had the advantage of reading that of Lord MacDermott and he concurred in what Lord MacDermott bad to say.
It would be convenient now to refer to the observations of Lord MacDermott.
At page 417 of the Report are his relevant observations: "The evidence must, no doubt, be clear and satisfactory, beyond a mere balance of probabilities, and conclusive in the sense that it will satisfy what Lord Stowell, when Sir William Scott, described in Loveden vs Loveden(2) as 'the guarded discretion of a reasonable and just man '; but these desiderata appear to me entirely consistent with the acceptance of proof beyond reasonable doubt as the standard required. .
I am unable to subscribe to the view which, though not propounded here, has its adherents, namely, that on (1)Sim and section 150.
(2) (1810) 2 Hag.
Con., 13.
334 its true construction the word 'satisfied ' is capable of connoting something less than proof beyond 'reasonable doubt '.
The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry.
The terms of the statute recognize this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be 'satisfied ', in respect of a ground for dissolution, with something less than proof beyond reasonable doubt." After saying that he did not base his conclusion as to the appropriate standard of proof on any analogy drawn from criminal law since the two jurisdictions are distinct, he observed The true reason, as it seems to me, why both accept the same general standard proof beyond reasonable doubt lies not in any analogy, but in the gravity and public importance of the issues with which each is concerned." Lord Oaksey, after pointing out that the only thing sug gested against the wife was that her child was born 360 days, after her husband had access to her, observed: " In such circumstances the law, as I understand it, has always been that the onus upon the husband in a divorce petition for adultery is as heavy as the onus which rests upon the prosecution in criminal cases.
That onus is generally described as being a duty to prove guilt beyond reasonable doubt but what is reasonable doubt is always difficult to decide and varies in practice according to the nature of the case and the punishment which may be awarded.
The principle upon which this rule of proof depends is that it is better that many criminals should be acquitted than that one innocent person should be convicted.
But the onus in such a case as the present, is not founded solely upon such considerations but upon the interest of the child and the interest of the State in matters of legitimacy, since the decision involves not only the wife 's chastity and status but in effect the legitimacy of her child.
" One of the decisions relied upon before the House of Lords was Gaskill vs Gaskill(1), in which the birth of the child had taken place after an interval of 331 days between it and 335 the coitus with the husband Lord Birkenhead, L.C., who tried the case sitting as a judge of first instance, said, in regard to the wife: "I can only find her guilty if I come to the conclusion that it is impossible, having regard to the present state of medical knowledge and belief, that the petitioner can be the father of the child.
The expert evidence renders it manifest that there is no such impossibility. 'In these circumstances I accept the evidence of.
the respondent, and find that she has not committed adultery, and accordingly I dismiss the petition." Referring to this decision, Lord Morton of Henryton observed in Preston Jones vs Preston Jones(1): "My Lords, in the case of Gaskill vs Gaskill(2) the birth was far from being a normal one, but I think that Lord Birkenhead placed too heavy a burden of proof upon the husband.
It is not the law to day, in my view, and with all respect to Lord Birkenhead I do not think it was the law in 1921, that a husband is bound to prove that he cannot possibly be the father of the child and I do not think that the case of Morris vs Davis(3), cited by Lord Birkenhead, established the strict rule which he laid down." He then referred to Wood vs Wood(4), in which the interval was 346 days and Hadlum vs Hadlum(5), where the interval was 349 days, and observed: "But I think that the cases of Gaskill(2), Wood(4) and Hadlum(5) put an unwarranted and increasing burden upon a husband who seeks to prove his wife 's adultery.
" On the other hand, he expressed his agreement with the view of Ormerod, J., in M T vs M T(6), where the interval was 340 days, and acting upon the medical evidence to the effect that the husband could not have been the father of the child, the learned Judge without saying anything about the burden of proof granted a decree to the husband.
In Galler vs Galler(7), Hodson L.J. has observed at p. 540: "I have used the language which I have, because, since Fairman vs Fairman(8) was decided, the much debated question whether the standard of proof in a divorce suit, which is a kind of civil action, is the same as that ina criminal case, and whether the (1) (2)(1921) P. 425.
(3)5 Cl. & F. 163.
(4) (5)(1949) P. (7)(1954) 1 All E.R. 536.(8)L.R, (1949) P. 341.
336 case rules apply, has been considered by the House of Lords in Preston Jones vs Preston Jones(1)." and has quoted with approval the opinions expressed by Lord Simonds and Lord MacDermott.
He then observed: "It might appear from the passages which I have read from the judgment in Fairman vs Fairman(2) that the anology of criminal law was the ratio of that decision, but I think the result is the same by whichever road one travels.
In divorce, as in crime, the court has to be satisfied beyond reasonable doubt.
" A similar view has been expressed by Sir Lallubhai Shah in John Over vs Murial A.I. Over(3).
The learned Judge has said: "I desire to make it clear that in divorce cases, great care and caution are necessary in dealing with the admissions of parties and it is only the exceptional circumstances of a given case that could justify the Court in acting upon the admissions of party as to adultery without any corroboration.
Generally speaking as a matter of prudence it is desirable to insist upon evidence corroborative of the admissions.
" Martin, J., has observed in the same case at p. 259: "No doubt section 15 provides that subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure.
But that provision, in my opinion, does not override the express directions in sections 7, 12, 13 and 14 to which I have already alluded." (The provisions referred to are those of the ).
Indeed, in White vs White(4), which was a case under the , this Court has held that the words "satisfied on the evidence" in s.14 of the Act implied that it is the duty of the Court to pronounce a decree only when it is satisfied that the case has been proved beyond rea sonable doubt as to the commission of a matrimonial offence.
After pointing out that the evidence must be clear and satisfactory beyond the mere balance of probabilities, this Court had said that the rule laid down in Preston Jones vs PrestonJones(1) should be followed by the Courts while dealing with cases under section 7 of the , Section 23(1) of the which deals with the powers of the Court in a proceeding under the Act also provides that the Court shall decree the relief claimed by the petitioner, whether the petition is defended or not, if the Court is (1) (2)L.R. (3) (4)1958 [S.C.R.] 1410.
337 satisfied that any of the grounds for granting relief exists and certain other conditions are satisfied.
Thus, under the as well as under , the condition for the grant of a relief is the satisfaction of the Court as to the existence of the grounds for granting the particular relief.
The satisfaction must necessarily be founded upon material which is relevant for the consideration of the Court, and this would include the evidence adduced in the case.
Therefore, though in the former Act the words used are "satisfied oil the evidence" and the legislature has said in the latter Act "if the court is satisfied", the meaning is the same.
In my judgment, what the Court has said in White 's case(1) about the applicability of the rule in Preston Jones vs Preston Jones(2) must also apply to a case under the .
Now, let us consider the evidence which was originally tendered at the trial of the proceedings before the City Civil Court.
In support of his case, the appellant examined himself and his father.
The gist of his evidence, when he was examined in chief, is that he did not see the respondent between the date of the betrothal and his marriage either at Bombay or at any other place, i.e., between November 1, 1946 and March 10, 1947, that he did not know at the date of the marriage that the respondent was pregnant, that he and the respondent lived together for 10 or 12 days at Vile Parle after the marriage, that during this period she did not disclose to him that she had been pregnant prior to the marriage, that he left for U.S.A. in the last week of April, 1947, that the respondent who had gone to Prantij in the meanwhile returned to Bombay only a day prior to his departure, that he was aware before he left for U.S.A. that the respondent had become pregnant, and that he did not disclose this fact to any one, because he was not sure whether she was pregnant or not.
lie further stated that he returned to India towards the end of the year 1947 and that he only learnt IO to 15 days prior to his departure to India and while he was in London, of the birth of a child to the respondent.
and that he was shocked at the news and began to suspect her.
He denied having made any demand upon the res pondent for having pre marital sex relations or had said to her that betrothal was as good as marriage and that the marriage ceremony was merely a legal formality for "legalising children".
In his cross examination, he admitted that he had seen the respondent before the marriage on three occasions, two of which were subsequent to the betrothal.
He denied a suggestion made to him in cross examination that he visited Ahmedabad where his father owns a house, on many occasions between November, 1946 and March, 1947.
He also denied having (1) ; (2) 338 expressed his desire to see the respondent.
He, however, admitted that he had written to her suggesting that she should come to Bombay where his sister was residing and that he made this suggestion immediately after the betrothal had taken place.
A number of letters written by the appellant to the respon dent in which he had suggested that they should meet and come in closer contact with each other were put to him, and he admitted them.
He admitted having stated in his letter dated July 11. 1945 that the object of betrothal two years prior to marriage was that both should come in contact with each other so that they might be "accommodative to each other and not for the sake of betrothal." He was asked to explain what he meant by this and his explanation was "I meant that I and the respondent should try to know each other by writing letters and by knowing the views of each other.
By the word 'Sugan ' used in that sentence (which is in Gujarathi), he said that I meant that the marriage life may be smoothened after (sic) each other." He admitted that in, one of her letters the respondent had stated that her father was objecting to her coming into contact with the appellant before marriage.
He has admitted in his cross examination that after he came to know that the respondent had conceived he had written to her that she should arrange for an abortion.
In cross examination,the following questions were put to him: "Q.
In the letter dated 17th April 1947, you have stated 'I had already told you from the beginning but you did not pay any attention to my say. ' What do you mean by that sentence? A. (The witness refers to the letter dated 17th April 1947 written by him to the respondent part of Ex No. 3 and gives the answer after reading the same).
By that sentence I meant to convey that I had told the respondent after the marriage when I had sexual intercourse with her that we should not have a child and for that purpose we should take precautions but in spite thereof no precautions were taken and therefore I had stated what is written in my letter dated 17th April 1947 part of exhibit
No. 3.
" He has also made admissions to the effect that he had sug gested abortion to the respondent several times.
According to him, she also expressed a similar desire.
I have already pointed out that the appellant had said that he wanted to keep the fact of respondent 's pregnancy a secret, though he knew about it before his departure to U.S.A. He had to admit that he had suggested to the respondent that she should intimate the fact to his sister, Sharada.
In that letter he had also said "Explain 339 all things to my sister Sharada".
According to him, however, what he meant was that she should explain to Sharada" in connection with the posting of the letters to be written by Sharada to me.
" That is all his evidence.
There is nothing in the evidence of his father, which has any bearing upon the Question of the respondent 's pregnancy before the marriage.
In her evidence, the respondent has reiterated her denial of having conceived from a person other than the appellant.
She has, however, deposed to the fact that she had visited Bombay before the marriage about the Christmas days in the year 1946 and stayed in the house of Ramanlal, Witness No. 2 for the respondent, who is a friend of her father.
According to her, the appellant used to visit his house and take her from there either to her father in law 's house or to pictures or to some hotel.
Then she has deposed.
"On those occasions I had sexual intercourse with the petitioner.
I agreed to submit to the sexual intercourse by the petitioner because he threatened to break off the betrothal if I refused to permit him to have sexual intercourse.
Prior to the date of my marriage with the petitioner, I had no sexual intercourse with any man other than the petitioner.
" She has further said categorically in her evidence that she did not know at the time of her marriage that she was pregnant and that she became aware of this after the marriage only when she started vomiting.
This was after she had returned to Prantij from Vile Parle.
She has also stated in her evidence, "After I went to Prantij after my visit to Bombay in Christmas 1946, 1 had monthly course.
After I left for Prantij after my visit to Bombay in January 1947 and before the marriage I had monthly course.
But on those occasions the bleeding was less.
" She was cross examined at length with regard to her story that she had sex relations with the appellant before the marriage, and after asserting once again that she had met the appellant in Bombay in December 1946 or January 1947 she said in answer to the next question: "It is not true that prior to the marriage I knew that I was pregnant.
It is not true that I deliberately suppressed the fact of my pregnancy from the petitioner and performed marriage with him.
It is not true that I was not pregnant as a result of the sexual intercourse with the petitioner prior to the marriage.
" And then in answer to the question "Before 10th March 1947 Mahendra, the petitioner, his sister Sharada and his father did not know that you were pregnant?", her answer, after certain hesitation was: "It is not true that the petitioner, his sister Sharadaben and his father did not know that I was pregnant 340 prior to the marriage.
According to me the petitioner, his father and his sister knew prior to our marriage that I was pregnant." In the letter dated January 8, 1948 written by her to the appellant 's sister she had stated "I am innocent", and in crossexamination, she was asked as to what was the necessity for her to write that in her letter if the child which was born to her was conceived from the appellant, her answer was: "We came to know that a scandal was raised by my father in law and mother in law at Vile Parle and that is why I had written to my sister in law that I was innocent.
The scandal which I have referred to in my earlier answer was that the baby born to me was premature and was not the child of the petitioner.
" She was then asked why she did not inform the appellant 's sister, Sharadaben, that she had pre marital sexual intercourse with the appellant, her answer was that she did not do so in obedience to an injunction from her husband.
It may be mentioned that in the letter of January 8, 1948 the respondent had stated that she had her menstrual period 10 days prior to the marriage.
The question put to her in cross examination was whether she stated this in her letter with the object of showing that she had no sexual intercourse with any one before the marriage and her answer was: "Even if the woman is pregnant she would be in monthly course.
It is not true that the object of my writing the aforesaid statement in my letter was as you suggest.
" When again pressed to state what was the object in saying "I am innocent" in that letter, she answered: "By saying that I was innocent, I meant to suggest that the scandal which was spread about the child being not of the petitioner was a false scandal." When asked why she did not write in that letter that this child was conceived as a result of the sex relations she had with the appellant in December 1946 and January 1947, her answer was that the appellant knew the fact and knew that lie was the father of the child.
When asked why she had then described the child as premature in that letter, her answer was that that was because the child was weak, Eventually, however, she admitted that the child born to her was premature.
The only other witness examined was Ramanlal, with whom the respondent claims to have stayed during her visit to Bombay in December 1946 January, 1947.
He supports her statement in that regard as well as the other statement that during her stay there the appellant used to visit her and take her out.
341 That is all the evidence in the case, and the question is whether upon this evidence it was open to a Court to make a. decree under section 23 of the annulling the marriage upon the ground that the respondent had conceived, from a person other than the appellant before her marriage and that the appellant was not aware of this fact at the time of the marriage.
It is contended on behalf of the appellant that the respondent has admitted both in her pleading and in her evidence in the Court that she had had pre marital sex relations and that this admission by her should be construed against her.
An admission in a pleading must be taken as a whole, and, therefore, if we are to act upon that admission, then that part of it which is to the effect that she had such sex relations with the appellant and not anyone else must also be regarded.
No doubt, what applies to an admission in the pleading would not apply to statements made by a witness in evidence.
It seems to me, however, that the defence taken by the respondent of having had pre marital sex relations with the appellant as well as the evidence given by her in the Court was false.
Had there been any truth in this, she would certainly have taken that defence in the earlier suit, which was filed in the Baroda Court.
Apparently, faced with the fact that the child was born to her only five and half months after her marriage she and her advisers found themselves in a difficult situation.
For, having regard to the generally accepted notions of people regarding the normal period of gestation it would be difficult to convince any one of the fact that the child was legitimate, particularly in view of the fact that it has in fact survived and so would be presumed to have been normal.
It may be because of this that she and her advisers thought of an obviously false defence.
Would this, however, make any difference either in the incidence or the discharge of the burden which the law casts upon the petitioner in a proceeding like this, of establishing affirmatively the existence of the ground relied upon by him? I would say with Lord Normand that apart from the objection of principle, it would in the circumstances of this case be unjust to the respondent to infer or assume that the false defence is tantamount to an admission of guilt.
If it is possible that an apparently normal child may be born 171 days after coitus (or even 186 days as contended by Mr. Purshottam Trikamdas) and would survive, and if that was what had happened in this case, then in the words of Lord Normand "the departure from the normal course of things is so extraordinary that the mother, conscious of innocence but believing herself the victim of a sport of nature, might, despairing of establishing the true defence, allow herself to palter with the truth, and might induce others closely connected with her to lend themselves to prevarication 342 or worse.
" I would, therefore, wholly leave out of account the false defence set up by the respondent.
Even if the appellant 's evidence is believed completely, the facts which can be said to have been established by him are only these:(a) that the child was born 171 or 186 days after the marriage;(b) that he never had pre marital intercourse with the respondent; and (c) that he was not aware of her pregnancy before the marriage.
Can it be said that this evidence justifies the conclusion that the child must have been conceived before the marriage, and since, if the appellant 's statement is believed, it could not be conceived from him, but from some one else? It was urged by Mr. Desai, apparently on the strength of an observation made in one of the speeches in Preston Janes ' case(1) that where the period of gestation deducible in respect of a child deviates markedly from the normal, the burden on the husband who denies being its father of establishing the matrimonial offence alleged by him against his wife is a very light one.
With respect I would say that the argument is untenable.
When the law places the burden of proof upon a party it requires that party to adduce evidence in support of his allegation, unless he is relieved of the necessity to do so by reason of admissions made by or in the evidence adduced on behalf of his opponent.
The law does not speak of the quantum of burden but only of its incidence and to my mind it is mixing up the concepts of the incidence of burden of proof with that of the discharge of the burden to say that in one case it is light and in another heavy.
Looked at that way, the argument would amount, in effect, to be that the appellant has fully discharged the burden of proving hi , wife 's pre marital conception because, admittedly, the child was born only 171 or at most 186 days after the marriage.
While it would be relevant to bear in mind the fact that the child was born within 171 or 186 days of the marriage for deciding the question whether the conception was pre marital, other relevant factors and circumstances cannot be excluded.
For, it cannot be assumed that the delivery was normal, the child was born at the end of the full period, that it was a normal and mature child, that the mother maintained normal health throughout the period and so on.
Again, there is no evidence whatsoever that the respondent was a woman of loose character.
On the other hand, such little evidence as there is bearing on the point would show that the respondent was a member of a family which had strong ideas regarding association between betrothed couples and was herself reluctant even to meet the appellant during the long period of their betrothal.
There is nothing in the evidence to indicate that the respondent could have had an opportunity of coming in contact with male persons at Prantij, where she lived before her marriage.
(1) 343 The second thing is that if as contended on behalf of the .appellant, the respondent 's delivery was after the full period of gestation, her pregnancy must have been of about four months ' duration at the time of the marriage.
If that were, so, it is difficult to believe that this fact would not come to ' the notice of the female relatives of the appellant or the appellant himself, or of Dr. Champaklal the appellant 's brother inlaw who has been found by the High Court to have examined her.
Moreover, had that been so, she would not have shown readiness to break off her engagement till as late as in February, 1947 and thus taken the risk of becoming an unmarried mother.
The third thing is that if the respondent 's nausea started three weeks after returning to Prantij, how could it be related to a pregnancy of five months ' duration? Fourthly, if the respondent had her menstrual period 10 days before the marriage, then despite what she herself says, how could she be said to be pregnant at that time? Indeed, the progress of the pregnancy as appearing from the evidence which was not challenged before us is consistent only with post marital conception. There is also the circumstance that despite exhortation by the appellant she refrained from having an abortion, which is more consistent with the pregnancy being post marital than pre marital.
As against this, all that is relied upon on behalf of the appellant is the circumstance that it would be against the generally accepted notions of mankind to hold that a normal child would be delivered after 171 or 186 days after conception.
Can it reasonably be said that this circumstance is sufficient in itself to outweigh the other circumstances taken cumulatively? At the stage with which I am dealing, there was no medical evidence in the case.
But it was said that the live birth of a child 171 or 186 days after conception is impossible and it must be presumed that the child was conceived before marriage and further that such a presumption can be competently drawn even in a proceeding of this nature.
If the birth of an apparently normal child 171 or 186 days after conception is an impossible phenomenon and if its impossibility is notorious, then alone a Court can take notice of it and the question of drawing a presumption would arise.
All that can be said is that such an occurrence can at best be said to be unusual; but it is a far cry to say that it would be impossible.
No doubt, courts have taken notice of the fact that the normal period of gestation is 280 days, but the courts have also taken notice of the fact that there are abnormal periods of gestation depending upon various factors.
It would appear from the medical evidence in this case that one of such factors is a short cycle of menstruation.
Another is that where the mother is suffering from oedema and high blood pressure and passing albumen in her urine the period of gestation of the child will be shortened (see evidence of Dr. B. section Mehta).
344 There may also be other factors which have not been brought out in the evidence or which may not have yet come to the notice of obstetricians.
Therefore, while the courts ought in cases which largely turn upon medical evidence, to have regard to the existing state of medical knowledge they should not overlook the fact that there is still a good deal which is not known.
So when a court is called upon to decide a matter like the one before us mainly, if not wholly, on the opinion of medical men it must proceed warily.
Medical opinion even of men of great experience and deep knowledge is after all a generalisation founded upon the observation of particular instances, however numerous they may be.
When further the Court finds that in individual cases departure from the norm has in fact been observed by some experts and when again the experts themselves do not speak with the same voice the need for circumspection by the court becomes all the more necessary.
It may land itself into an error involving cruet consequences to innocent beings if it were to treat the medical opinion as decisive in each and every case.
The responsibility for the decision of a point arising in a case is solely upon the court and while it is entitled, nay bound, to consider all the relevant material before it, it would be failing in its duty if instead, it acts blindly on such opinion and in disregard of other relevant materials placed before it.
Initially no attempt was ever made before the City Civil Court to adduce any scientific evidence i.e., evidence of experts, and in the absence of such evidence, can it be said that there was anything else of which the City Civil Court ought to have taken judicial notice? Should it have drawn any presumption? The only relevant provisions regarding presumption are sections 112 and 114 of the Evidence Act.
Section 112 reads thus: "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
" It refers to the upper limit of the duration of pregnancy for the purpose of determining the legitimacy of a child but not to the lower limit.
Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, etc., in their relation to facts of the particular case.
The question would then be whether from the circumstance that the child was born five and half months or so after the marriage it could be presumed to have been conceived before the 345 marriage, regard being had to the common course of natural events.
If the only fact known was that the child was born on August 27, 1947 and nothing else was known, it would be open to the Court to presume that it was conceived so many days prior to its birth.
If, however, in addition to this there was evidence to show that the mother was suffering from eclempsis or that the child was weak and premature such a presumption would not arise.
In this case, there is evidence of both these facts.
This consists of the testimony of the respondent herself and of her letter to the appellant, exhibit 6 dated August 13, 1947 and of that to Sharadaben, exhibit F dated September 3, 1947 produced by the appellant.
This is further supported by the letters exhibit 11 written by Dr. Champaklal to the respondent 's father on July 12, 1947 and September 20, 1947.
It would, therefore, not be legitimate to raise the presumption that the child was born after the normal period of gestation and must, therefore, have been conceived 'before the marriage.
Such was the material before the City Civil Court at the conclusion of the trial and before High Court when it first heard the appeal.
This material is insufficient for discharging the burden placed on the petitioner by section 23 of the Act.
On the basis of this material, no Court could reasonably come to a finding that the respondent was pregnant at the time of her marriage and that, therefore, the appellant was entitled to the annulment of the marriage.
As already pointed out by me, this is what the High Court itself felt, and having formed this view, it is a matter of surprise to me that the High Court should have proceeded to frame additional issues and send them down for findings to the City Civil Court.
The only thing the High Court could properly do was to allow the appeal and dismiss the appellant 's petition for annulment of the marriage.
Now, the High Court has, after receipt of the additional evidence and the fresh findings of the City Civil Court accepted one of those findings and dismissed the appellant 's petition.
If, therefore, I am right in my view that the letting in of the additional evidence for which the appellant had not even asked, was not permissible by law, then upon my view that the evidence originally adduced in the proceedings is inadequate for the purpose of granting the relief under section 23 of the Act, the appeal must be dismissed.
I would accordingly dismiss it with costs in this Court, and direct that the appellant shall pay the respondent 's costs in the High Court as well as in the City Civil Court.
This really ends the matter, but as my learned brother Raghubar Dayal J., has considered the medical and other evidence in great detail, I should at least make a brief reference to it, even though, in my view, it has been illegally admitted.
I will only refer to the evidence of those witnesses 346 upon whose statements reliance was placed before us by one party or the other.
One is Madhuben, who claims to have been working in the Prantij Municipal Dispensary from 1939 to 1955.
She said that she atte nded to the delivery of the respondent, and that she had examined her two months before the date of delivery, when she noticed swelling all over her hands and feet.
She also says that the respondent had ad vanced seven months in the pregnancy when she first examined her and that the weight of the child which was born was 4 to 4 1/2 lbs.
According to her, it was a mature child born after the full period of gestation.
Her evidence was discarded not only by the High Court but also by the City Civil Court on the ground that she was deposing to these facts 12 years after the delivery is supposed to have occurred, and deposed without reference to any records made by her.
No doubt, the Hospital Indoor case paper, exhibit K. was produced by a witness, Kacharabai, also examined at that stage; but in the absence of a white paper, which is normally a part of this particular record, it loses its value.
It is true that there was No. crossexamination on behalf of the respondent regarding Madhuben 's statement that she had examined the respondent two months before the delivery, but it seems to me that from the fact that she deposed 12 years after the event and the further fact that she had to attend to at least 150 labour cases every year a total of 2,400 cases during the time she worked in the hospital her evidence cannot be regarded otherwise than as artificial.
Indeed, she had long ceased to be in the service of the hospital, and had even left Prantij, before she was summoned as a witness in the case.
According to her, she was contacted by some bania and it is obvious that she has been induced to speak to facts which would assist the appellant in this case.
Her evidence was rightly rejected by the courts below.
The next witness is the appellant himself.
He has stated in his evidence that his case was that the child born to the respondent was born after the expiration of the full period of gestation, and that the respondent must have conceived somewhere in November or December, 1946.
He has, however, admitted that when he had sex relations with the respondent, her clothes used to be removed, though he said that lights used to be switched off in the room in which they slept.
We cannot lose sight of the fact that in Bombay after sunset the streets are well illuminated and since the windows are usually kept open the light coming from outside is sufficient to illuminate the rooms adjacent to the streets.
They therefore are not totally dark even at night.
Apart from that, the appellant has admitted that he did not feel anything abnormal when he came in contact with her.
If her pregnancy had actually advanced to four months, in the normal course it would have been possible for him to notice her condition.
347 Then there is the evidence of Dr. Ajinkya.
He has deposed to a large number of things, and the only points which it is necessary to mention are: (a) the normal period of gestation is 280 days, which period is calculated from the first day,,,,, of the last menstrual period; (b) where the hospital record .shows that the woman delivered of a child has normal labour and the child weighed 4 lbs and is living, it must have been conceived 270 days before the date of birth; (c) if a child is born within 169 days from the date of marriage it would not be of sufficient maturity to survive; (d) confirmation of a pregnancy within three weeks of conception is possible only by a biological test; (e) abdominal enlargement would be perceptible after the fourth month of pregnancy; (f) viability is described as the critical period of maturity and that this period is the 28th week of conception and explained that the viable period is called critical period because it denotes the development of the child 's tissues to the extent that it can have independent existence from its mother only after that and not before; and (g) a child born after the 28th week from conception would survive when special care and treatment is given to it.
He has then described the special care which has to be taken in regard to such child.
The following passage from Taylor 's Principles and Practice of Medical Jurisprudence, Vol 2, 11th Edn.
p. 32 was put to him: "It was the opinion of William Hunter that few children born before 7th calendar month (or 210 days) are capable of living to manhood, but with advances in methods of Neonatal Resuscitation and maintenance, this dictum has gradually receded into history.
It remains, nevertheless, that the less mature the infant the less likely is it to survive and the critical period of maturation appears to be somewhere between the 5th and 6th month.
In the absence of any skilled care, Hunter 's dictum on the likelihood of survival when born before the 7th calendar month remains as true as it was." According to him, this dictum was not wholly true, and what was attributed to Hunter was really the opinion of the author.
I may mention here that Dr. Mehta has agreed with the above quotation from Taylor 's book.
Now, since the month of pregnancy is a lunar month the respondent 's child which was born 26 weeks and four days after the marriage could be said to be one born in the 7th month.
The fact that such a child has survived its birth is no significant evidence of matu rity.
Taylor points out that though infants born before the seventh month of pregnancy are less likely to survive they commonly do so.
The following cases of survival of less mature infants are referred to in this connection: 348 Bernardi described the survival of a 1 lb. 9 oz.
infant in 1951, and Nanayakkara, in the same year, recorded a birth at 1 lb. 4 oz. which survived.
MacDonald reported the survival of a 14 in.
long 2 lb. 7 oz.
infant thought to be a gestation of 6 to 61 monthsthat, six months later, weighed 5 lb. 6 1/2 oz.
The considerable experience of Victoria Crosse in problems of prematurity resulted in the publication of the following table, emphasising the high mortality of prematurity: Weight of Infant (lb)Percentage leaving Hospital 0.2 3 2 3 27 3 4 60 4 5 78 5 5 1/2 94 The author then refers to a case attended by Barker in which a female child born 22 weeks after intercourse was observed by him to have attained the age of II.
Similarly the author refers to a case from America when a child born 192 days, after intercourse was found alive at the time of report which was 16 months after its birth.
In the well known Kinghorm case the doubt cast on the legitimacy of a child born 174 days after the marriage between the parents was found not to have been substantiated.
It would be convenient to quote here two passages from the article by J. H. Peel at p. 557 onwards of British Obstetric Practice (22nd edn.) on "Duration of Pregnancy and its variations".
He begins by saying that the problem of the exact duration of pregnancy has not yet been solved that this is due to a large number of variable factors.
He points out that the common method of calculating the date of delivery ignores all the variables.
Dealing with premature termination of pregnancy he says: "Premature termination of pregnancy may be defined as termination of the pregnancy after the twentyeighth week (accepted date of viability of the foetus) and before the fortieth week, counting from the first day of the last menstrual period.
On the other hand, most writers on the subject of prematurity tend to define the condition in terms of the weight of the baby rather than in terms of the maturity of the pregnancy.
It was first laid down by the American Academy of Pediatrics in 1935 that a premature infant is one that weighs 5 1/2 lbs.
349 or less, regardless of the period of gestation.
This definition was accepted by the International Medical Committee of the League of Nations and has gained universal acceptance, in spite of its scientific inaccuracy.
Most obstetricians have seen babies of less than 51 lbs.
born after a gestation period of more than 280 days.
Indeed, birth weight and duration of pregnancy are far from perfectly correlated.
Infants weighing less than 5 1/2 lb.
at birth may even be postmature.
This is well shown in Table 2 constructed by Kane and Penrose from 7,037 live births from University College Hospital records.
It is seen that 470 babies weighed less than 5 1/2 lb., but that III (23.6 per cent) of these underweight babies were born at term or later, according to the ordinary method of calculation.
The term immaturity has been suggested as an alternative in view of these discrepancies, but it has not received universal acceptance.
There is, however, more than academic significance in the difference, because maturity as such, irrespective of weight, is of the greatest im portance in relation to foetal survival.
A baby whose birth weight is 4 lb., if born at thirty eight weeks stands a far better chance of survival, and is more likely to develop into a healthy child, both mentally and physically than one of the same weight born a month earlier.
" I am not reproducing the table constructed by Kane and Penrose but I may only mention that the table shows a few cases of deliveries in which the duration of pregnancy was 177 days, though they ended either in still births or neonatal deaths.
The conditions associated with premature labour are many and varied and Peel has classified themthus: (1) Maternal causes.
(a) Pre existing (b) Complications of Pregnancy.
(2) Foetal and Placental causes.
(3) Idiopathic causes.
" He has then dealt with these causations of premature labour but I would content myself by quoting a portion of what he has said regarding 'Idiopathic causes '.
This is what he says: "In about 50 per cent of premature labours no definite cause can be found.
Thus Sandifer (1944), analysing premature births at Queen Charlottee 's Hospital, found no definite cause in 372 out of a total of 681 spontaneous premature labours.
350 doubt correlated with nutrition dependent upon social status.
" What does all this show? It brings out the fact that while the natural phenomenon of human birth follows a general pattern it does not do so invariably.
There are variations in it.
A few have been recorded but in the nature of things the observations cannot be exhaustive, bearing in mind the fact that every minute a new human is being born in this world or may be even more than one.
Section 45 of the Indian Evidence Act makes the opinion of scientists relevant when the court has to decide a point of science.
But it does not make the opinions conclusive.
Therefore, while the courts ought to pay due regard to the existing knowledge of scientists it does not necessarily follow that the opinions expressed by scientists must be always accepted without scrutiny.
Every phenomenon is the result of numerous factors and where all such factors are known to science an opinion of an expert concerning the particular phenomenon ought ordinarily to be accepted.
But when all the factors which come into play in a phenomenon are not known, an uncritical acceptance of an expert 's opinion would be a dangerous thing.
Medical scientists do not lay claim to a knowledge of every factor involved in human birth.
One of the factors they have to contend with is the operation of the life principle.
The mystery of its behaviour has yet to be unravelled and, therefore, if an expert makes a dogmatic assertion about any matter concerning child birth dismissing contrary opinions based upon the observations of departures from the so called norm with supersilious disdain as Dr. Ajinkya has done or is unable to give a satisfactory explanation for the departure from the normal observed by other scientists, I would put aside his opinion on the ground that his whole approach is unscientific.
In this evidence Dr. Ajinkya has further deposed about toxaemia in pregnancy, enlargement of abdomen, weight of the child born after the full period of gestation.
When he was asked the question: "If toxaemia starts at the end of 4th month of pregnancy and in spite of the treatment, there is no ,change in toxaemia for a period of seven weeks thereafter what would be the condition of the child born 169 days after marriage?" His answer was, "most probably it would be a still birth." From this last statement of the witness it would appear that if, when the respondent 's toxaemia as evidenced by vomiting and nausea started, she was in the fourth month of pregnancy and not in the second month of pregnancy the child delivered by her on August 27, 1947 would be still born but in fact it was alive and is now 16 years of age. 351 The following passage from Mody 's Medical Jurispru dence and Toxicology, 12th edn.
p. 305 was put to him: "It has been observed in women whose intermenstrual period is shorter than the usual time, pregnancy has terminated in the 8th or 9th month or even earlier the child having attained full development." (Italics are mine).
Dr. Ajinkya, however, expressed disagreement with it.
According to him, the weight of the child born in the 5th or 6th month after the marriage would be 2 1/2 lbs.
and the child would not survive, whereas here the evidence, if accepted, is that the weight of the child was 4 to 41/2 lbs.
In the table constructed by Kane and Penrose three Cases have been recorded in which the infant born in the 7th month of pregnancy weighed between 5 and 6 lbs.
Dr. Ajinkya 's opinion cannot, therefore, be accepted.
He also said that if a pregnant woman is suffering from oedema all over the body, is passing albumen in the urine, has high blood pressure and does not respond to treatment, it would be a severe type of toxaemia and the child born to her would be still born.
If this opinion is accepted, then considering it along with the fact that the child born to the respondent is still alive, the evidence of Madhuben that the respondent was suffering from eclempsia and therefore she had to attend on her for two months before the delivery stands falsified.
The witness has also said that the period of gestation is usually counted in lunar months, meaning a month of 28 days and that as doctors do not know the date of the fruitful coitus, they calculate the period of gestation from the first day of the last menstruation of the woman.
As regards nausea during pregnancy, he said that morning sickness occurs in the 1st or 2nd month and has expressed agreement with the following passage from Mody 's Text Book: "Nausea or vomiting usually as a sign of pregnancy, most frequently occurs soon after the woman rises from bed in the morning.
It commences about the beginning of the second month and lasts generally till the end of the fourth month.
It may, however, commence soon after conception." Another passage from Mody was also put to him.
A passage from Taylor, Vol. 2, 6th ed.
at p. 152 was read out to him.
It runs as follows: "It would be in the highest degree unjust to impute illegitimacy to offspring, or a want of chastity to parents merely from the fact of a six months child being born living and surviving its birth.
There are, indeed, no justifiable medical grounds for 352 adopting such an opinion a fact clearly brought out by the answer to a question put to the principal medical witness in favour of the alleged antenuptial conception.
He admitted that he had him self seen the case of a six months child who had survived for several days.
He could not assign anyreason why, if after such a period of gestation it is possible to prolong life for days, it should not be possible to extend it to months.
" His only answer was that he was aware of this case, and ob served: "If such speculation can take you away from truth in one direction, it may also take you away from truth in the other direction.
" In re examination, the following passage from Taylor 's Book, 2nd Vol.
10th ed.
at p. 37 was shown to him: "On the other hand, when a child is born with the full signs of maturity, at or under seven months, from possible access of the husband, then there is a strong presumption that it is illegitimate." He expressed agreement with this passage.
The evidence of This witness no doubt contains certain statements, which support the appellant but I agree with the view of Mr. Justice Patel that the witness though undoubtedly a leading obstetrician and gynaecologist, appears to have fenced while answering questions which tended to throw doubt on some of the opinions expressed by him.
His evidence, however, also shows that if the respondent was in the fourth month of pregnancy at the time of the marriage her nausea would not have started soon after her return to Prantij.
In fact, her nausea could have started much earlier, and even at the time of the marriage she should have been suffering from it.
There is no evidence whatsoever to the effect that she had any such nausea at the time of the marriage.
It is not disputed by the appellant that she was suffering from nausea from the time deposed to by her and for a considerable period thereafter.
She could, therefore, not have been in the fourth month of pregnancy towards the end of April, 1947.
For, according to Dr. Ajinkya nausea starts in the first or second month of pregnancy or again in the seventh month of pregnancy.
Therefore, upon this part of Dr. Ajinkya 's opinion, the appellant 's definite case that the pregnancy commenced in November or December, 1946 falls to the ground.
No doubt, the opinions of this witness regarding viability of a child born after five and half months and the weight of such child at birth and the impossibility of its survival support the appellant 's contention.
But these are matters upon which there is divergence amongst experts.
I have 353 already referred to a passage from Taylor which was brought to the notice of this witness with which he disagreed.
This passage as well as that in Peel 's article show that abnormal cases do occur.
Dr. Mehta 's opinions run counter to Dr. Ajinkya 's on certain crucial points.
He has spoken not merely from his own observations as an obstetrician but on the strength of the findings of other scientists.
In this state of affairs can the court say that the appellant has discharged The burden which the law has cast upon him to prove that the respondent was pregnant at the time of the marriage? It is not enough for him to throw a doubt.
He has to establish he fact affirmatively.
No doubt the appellant has examined Dr. Udani, a Pediatrician, but even his evidence does not take the matter any further.
Therefore, I am referring to those passages in his, evidence on which reliance was placed at the hearing and would only say this that what I have said about Dr. Ajinkya 's evidence on similar matters applies equally to Dr. Udani 's evidence.
According to him, a child born 5 months and 17 days after conception would die immediately after birth, though very often it would be a case of miscarriage.
The weight of such a child, according to him, would be 1 1/2 to 2 lbs.
He has agreed with Dr. Ajinkya regarding the normal period; of gestation as well as the period after which a baby becomes viable.
He has admitted in his cross examination that where the weight of a child at birth is 4 lbs.
it would definitely be an indication of premature birth.
The following question was put to him in cross examination: "You were asked by the counsel for the petitioner a little while ago that you could call certain signs as signs of maturity.
Now, as a responsible doctor, I take it that you can do so on the assumption that such symptoms are reliably established or found?" His answer was: "All the signs and symtoms must be established before I can opine on them.
If a baby can take the breast feed well by 3rd day of its life and that baby cries well, even though such a child may according to international definition be a premature one, nonetheless it is a fairly well developed child as far as functions are concerned.
So far as its functions are concerned it is a matured child.
This is particularly true if the mother of the child has the disease like Toxaemia then that baby even if born between 36 and 40th week of pregnancy, that baby will be under weight but it will be a matured child in function.
" L/P P(D) ISCI 12 . 354 Mr. Vimadalal objected to the last part of the answer given By the witness on the ground that it was volunteered by him.
Even, however, if this is taken into account, it makes no difference, because there is no positive evidence to show that them respondent was suffering from toxaemia right till the termination of the pregnancy.
When asked whether in his experience or knowledge he has come across any case in which a child born 26 weeks and four days had survived, his answer was: "I have seen two babies surviving between 27th and 28th weeks.
One in London and one in Boston.
But in these cases exceptional care was required both for delivery as well as for bringing it up.
" This answer to some extent, goes against the opinion of Dr. Ajinkya, though he has qualified it by adding that in most cases such child would be still born and that in exceptional cases it would survive if special care and attention is paid to it.
There remains the evidence of Dr. Mehta who was examined as a witness on behalf of the respondent.
He has also deposed that the period of gestation is counted from the first day of the last menstruation, and in this connection, he relied upon the following passage from British Obstetric and Gynaecological Practice by Sir Eardley Holland and Aleck Bourne, 1955 ed.: "According to Naegele 's rule, which is almost universally employed, seven days are added to the first day of the last menstrual period and nine months added, in order to arrive at the expected date of delivery.
This is really a simple way of adding 280 days of the first day to the last menstrual period, because experience has shown that this is the average duration of pregnancy.
" He also agreed with the following passage from Dougald Baird 's Combined Text Book of Obstetrics and Gynaecology, 6th ed: "It has long been known that the length of gestation in the human is almost ten lunar months (280 days) if calculated from the first day of the last menstrual period." According to him, a four pound full term baby that is one born 280 days after the first day of the last menstrual period, is a rare occurrence.
He was asked the question: "Doctor, if a woman suffers from swelling, i.e. oedema, high blood pressure and passing of albumen in urine, would that have any effect on the period of delivery?", and his 355 answer was that the child would be premature.
He further deposed that oedema, high blood pressure and passage of albumen in urine occur in the second period of pregnancy, but that it might occur earlier if the woman had some trouble, with the kidneys or high blood pressure.
By the second period of pregnancy, he meant after the third month of pregnancy and before the seventh month of pregnancy.
He further stated that nausea in pregnancy usually occurs at the time of the .second missed period, but it might occur before or about the time of the first missed period.
While he agreed with the other medical witnesses examined in this case that the child is supposed to be normal and viable after 28 weeks, he said that there are some exceptions to this and that a child born earlier than the 28th week may be born alive and can survive.
He stated that his statement is based upon the following two passages in De Lee 's book: "De Lee delivered a viable child one hundred and eighty two days after the day of conception and Green Hill delivered a baby one hundred and ninety one days after the beginning of the last menses and one hundred and seventy six days after the last coitus.
The baby weighed 735 gms (1 pound 10 ounces) and survived.
The child is now normal in every way.
The French law recognizes the legitimacy of a child born one hundred and eighty days after marriage and "three hundred days after the death of the husband, the German law one hundred and eighty one and three hundred and two days, respectively.
" He then said the he was familiar with the case of Cark vs Clark,(1) which is also referred to in Taylor 's Medical Jurisprudence, 2nd vol.
10th ed.
at p. 36.
Referring to it, he said: "I agree with the proposition at page 35 of Taylor.
It is as follows: 'Hence it is established that the children born at the 7th or even at the 6th month may be reared. ' I believe the expression month used by the author is Lunar Month.
It also agree with the proposition of Taylor at the same page which runs as under 'It would be in the highest degree unjust to impute illegitimacy to offspring or a want of chastity 356 to the parents merely from the fact of a six months child being born living and surviving its birth '.
" He has also deposed about various matters such as normal labour, calculation of period and so on but it is not necessary to refer to that part of the evidence.
Mr. Desai referring to the opinion of the witness regarding the mode of confirmation of pregnancy within three weeks or so of conception said that the respondent 's admission in a letter of 3rd April, 1947 that her pregnancy was confirmed that day by a doctor who had apparently not performed a biological test would show that conception must have taken place long before the date of marriage.
The letter was not produced by the appellant and so we do not know what exactly she had said in it.
Apart from that it is quite possible that the doctor whom the respondent consulted, as she was having nausea may have tentatively opined that it was pro bably due to the fact that she had conceived.
The opinion of that doctor cannot be placed higher than that.
Relying upon the admissions made by the respondent in the evidence that there was swelling on her hands and feet in the month of June it was argued that she must have then been in the 7th month of pregnancy because according to Dr. Ajinkya this kind of toxaemia appears after the 7th month of pregnancy.
It is to be remembered that she was deposing about this 12 years after the occurrence and as there was no reference to such an important matter in her letters of the 14th June and 2nd July, but only in a subsequent letter, she appears to have made a mistake about the month while depos ing in court.
In fact she first complained about the swellings and high blood pressure only in her letter of the 13th August.
Again even according to Dr. Ajinkya a pregnant woman may develop such troubles in the 4th month if she were suffering from chronic kidney trouble.
There is no evidence about her suffering from such trouble but the possibility of her having such trouble has not been ruled out.
Dr. Mehta has also said that while swellings and high blood pressure usually occur in the second period of pregnancy, he stated that this period would be after the 3rd and before the 7th month of pregnancy and supported his view by reference to a passage at P. 225 from the 'British Obstetric and Gynaecological Practice '.
In this state of evidence, it would not be reasonably safe to conclude that the respondent was in the 7th month of pregnancy in the month of June.
No doubt Dr. Ajinkya has said that there would be a perceptible abdominal enlargement in ordinary cases after the 4th month and the respondent has remarked in her letter 357 of the 28th June that her abdomen had the appearance of a big water pot.
But that was nothing more than innocent exaggeration and ought not to be taken literally.
A good deal of argument was advanced on the footing that the delivery of the respondent being normal, the birth of a premature baby cannot be regarded as a 'normal delivery ' in the medical parlance.
Apart from the fact that Dr. Ajinkya and Dr. Mehta have given different meanings to the expression 'normal delivery ', there is no reliable evidence to the effect that the birth of a child to the respondent was regarded as normal delivery.
As already observed, Madhuben 's evidence is false and artificial and the hospital records consisting of indoor case papers are incomplete.
It would also appear that the column of 'disease ' is torn and attempts to reconstruct it seem to have been made.
Moreover it would seem that entries used to be made in the hospital papers mechanically without reference to actualities.
On these grounds the entry regarding the weight of the child at birthstated as 4 lbs cannot be accepted at its face value.
Even accepting it, there is unanimity of opinion amongst all the three experts examined in this case that this would be the weight of a premature baby and not that of a mature one.
Considered along with the circumstances that the delivery was sudden and the respondent was then in a poor state of health the appellant 's case that the baby was a full term one and, therefore, illegitimate stands disproved.
All that I would say is that the medical evidence adduced in this case for establishing that the respondent had conceived before the marriage can in no sense be regarded as of a definite or conclusive nature.
Indeed, in the case of Clark vs Clark(1).
if the husband was assumed to be the father, the pregnancy could not have exceeded 174 days, and the child which was born, was alive at the hearing and was three years old.
The medical evidence was to the effect that a child of so short a period of foetal life would not survive for more than a day or two.
At the same time, the medical witnesses agreed that only rarely could the date of conception be fixed, and that the periods of gestation generally spoken of were notional periods.
There was no evidence of misconduct on the part of the wife, and the only evidence of adultery was the fact of the birth of a child, the period of gestation of which could not have exceeded 174 days.
The Court held that the husband had not discharged the burden of proof in respect of the adultery and that it was sufficiently proved that the child was conceived in wedlock.
It was further held that "where the date of con ception can be fixed, and the actual period of gestation is (1) (1939) 2 All ~E.R. 59. 358 ascertained, this ascertained period is comparable to the longer notional period, and for this reason what is in fact a six month child may be comparable to what is called a seven months child.
" To sum up, the substance of the medical evidence led on behalf of the appellant is that the normal period of gesta tion of a child is 280 days, that a child born 180 days after the last menstruation is not likely to be born alive or if born alive it will survive only if special care is taken, that such a case would not be that of normal delivery and its weight would be 1 1/2 to 2 lbs.
With the aid of the evidence of Madhuben the appellant has sought to establish that the delivery was a normal one, that the respondent appeared to have delivered at full term and the child born was a normal one.
He has further sought to prove with the aid of the hospital papers that the child weighed four lbs.
or so and was found to be normal one.
Madhuben 's evidence has been rejected by both courts of fact and for very good reasons.
The hospital papers cannot be relied upon in the absence of the white paper.
Besides, a look at the hospital records would suggest that entries therein were made in a casual manner regardless of actualities.
Thus all that we are left with is the evidence of the experts and the case records in text books.
There is no unanimity amongst the three experts and even the text books refer to abnormal cases.
Bearing in mind that the normal period of gestation evolved by the obstetricians is a generalisation deduced from particulars it cannot be regarded as an inflexible law of nature from which there can be no deviation.
Indeed, reputed obstetricians have recorded cases where the period of gestation was found to be shorter in cases of mothers whose menstrual cycles were of three weeks.
Again where toxaemia of pregnancy is found to be considerable the development of a child in the womb has been found to take place more rapidly than in normal pregnancies.
There may be conceivably other factors contributing to the shortening of the period of gestation and a more rapid development of a child in the womb than that which medical science has so far been able to notice.
In these circumstances it would not be reasonably safe to base a conclusion as to the illegitimacy of a child and unchastity of its mother solely on the assumption that because its birth and condition at birth ap peared to be normal its period of gestation must have been normal, thus placing its date of conception at a point of time prior to the marriage of its parents.
Thus, even if the additional evidence is taken into consi deration, the appellant stands on no stronger grounds.
359 It has also to be remembered that on the question as to whether the respondent was pregnant before her marriage not only the High Court but also the City Civil Court has come to the conclusion that she was not.
We have thus concurrent findings of fact on this crucial question.
It is settled law that this Court does not interfere with such a finding merely on the ground that another view of the evidence adduced in the case commends itself to this Court.
The appeal has come before us by a certificate granted by the High Court under article 133(1)(b) of the Constitution.
One of the requirements of cl.
(1) of article 133 is that in a case other than the one referred to in sub cl.
(c) the appeal must involve a substantial question of law where the judgment appealed from affirms the decision of the Court immediately below.
No doubt, strictly speaking, the judgment of the High Court cannot be regarded as judgment of affirmance of the City Civil Court because initially the City Civil Court had granted a decree for annulment of marriage to the appellant.
Substantially, however, the decree of the High Court must be regarded as one of affirmance if we take into consideration the fact that the High Court had affirmed the finding rendered by the City Civil Court on the additional issue framed by the High Court in regard to the question whether the respondent was pregnant at the time of the marriage.
No doubt, technically, the High Courts ' decision is not one of affirmance because it has reversed the decree of the City Civil Court.
But we must have regard to the substance of the matter.
It is true that the City Civil Court had originally granted a decree but the basis of that decree disappeared after it gave a contrary finding to the one rendered by it earlier on the crucial fact concerning the respondent 's pregnancy before her marriage.
The High Court having accepted that finding there can be no escape from the position that we have here a case where upon the crucial question of fact, there are concurrent findings.
Unless it is shown that a concurrent finding is vitiated by an error of law or procedure or unless it is shown that important or relevant evidence has been overlooked or misconstrued it would not be in consonance with the practice of this Court to re examine that finding, particularly when, as here, the findings are based upon an appreciation of evidence.
The Privy Council firmly adhered to this rule and this Court has accepted the Privy Council 's practice in this regard.
There are numerous decisions on the point but I may refer only to the following as instances of cases in which this Court has refused to disturb concurrent findings of fact: Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi & ors.(1); Gherulal Parakh vs Mahadeodas Maiya & ors.(2); Bhinka & others vs (1) (2) [1959] Supp. 2 S.C.R. 406. 360 Charan Singh(1); and Shamrao Bhagwanrao Deshmukh vs
Dominion of India(2).
No case has been brought to our notice in which this Court or the Privy Council has re appreciated evidence in an appeal by special leave or disturbed a pure finding of fact concurrently made by the courts below.
To do so now would be to ignore all precedents.
As already held by me the appeal must be dismissed with costs.
(1) [1959] Supp. 2 S.C.R. 798.
(2) A.I.R. 1955 S.C. 249.
| For purposes of assessment to income tax, a firm is a different entity distinct from its partners, and a mere change in the constitution of the firm does not bring into existence a new assessable unit or a distinct assessable entity.
(1) 67 I.A. 464,481.
172 A firm consisting of three partners, A, B and C, carried on the business of tea brokers and paid income tax under the Income tax Act of 1918.
There were several changes in the personnel of the partners and in 1939 the firm consisted of C, D and E. C retired and in 1945 a new partnership deed was written up between D, E and F and they carried on the business.
In 1947 the partnership was converted into a limited company.
The Income tax authorities refused to give relief under section 25(4) of the Income tax Act as the partners of the firm in 1939 were different from the partners of the firm in 1947: Held, that in spite of the changes in the constitution of the firm, the business of the firm as originally constituted continued right from its inception to the time it was succeeded by the limited company and the firm was the same unit all through; the reconstitution of the firm in 1945 did not make it a different unit, and the firm was therefore entitled to relief under section 25(4) of the Act.
|
tition Nos. 833 835 of 1979.
(Under article 32 of the Constitution) P. Parmeswara Rao, G. D. Gupta and Ashwani Kumar for the Petitioners.
U. R. Lalit and Miss A. Subshashini for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
In these three petitions under Article 32 of the Constitution, the petitioners separately pray for a restoration of the quota originally granted to them in their respective licences for the manufacture of fire arms.
Writ Petition No. 833 of 1979 has been filed by Ranjit Singh who alleges that his father Pritam Singh commenced the business of manufacturing guns in 1950 under a licence issued by the Government of Jammu and Kashmir.
The licence permitted him to manufacture 849 30 guns per month.
The guns were manufactured by hand and were not proof tested.
The licence was renewed annually and the quota was maintained throughout.
Later, with the enactment of the , the licence was issued under that statute.
The Government insisted that the guns manufactured by Pritam Singh should undergo proof testing, and for that purpose it became necessary for the manufacturer to purchase and install the necessary machinery and plant.
The machinery was installed shortly after 1960 on a substantial investment of funds raised with great difficulty and, it is said, in the result the factory is now capable of manufacturing 50 guns per month.
Until the year 1963, the licence in favour of Pritam Singh was renewed by the Government of Jammu & Kashmir for the full quota of 30 guns.
But with effect from the year 1964 the Government of India began to issue the licences.
The quota was reduced from 30 guns to 10 guns per month, and it is alleged that this has resulted in considerable hardship in view of the financial liability and the establishment expenses suffered pursuant to the installation of the machinery.
On the death of Pritam Singh in 1969, the business was carried on by the petitioner and his mother, and the licence now stands in their names.
Several representations were made to the authorities for the restoration of the original quota but there was no satisfactory response.
The petitioner claims that his plea for the restoration of his original quota has been supported by the State Government.
The petitioner cites a number of cases where the quota reduced in the case of other manufacturers has been restored and relies on other material to show that the determination of his quota has been arbitrary.
Writ Petition No. 834 of 1979 has been filed by Bachan Singh.
The facts incorporated in the petition run a materially similar course, except that the original quota granted to the petitioner consisted of 50 guns per month and has now been reduced to 5 guns per month.
The petitioner in the third Writ Petition, No. 835 of 1979, is Uttam Singh.
In his case, the original quota of 50 guns a month has been reduced to 15 guns a month.
Here again, the pattern of facts is substantially similar to that traced in the other two writ petitions.
In opposition to the writ petitions, the Union of India which is the sole respondent, relies on an Industrial Policy Resolution of 1956 which envisions an exclusive monopoly in the Central Government in the matter of manufacturing arms and ammunition while permitting existing manufacturers in the private sector to continue to carry on their business on a limited scale.
It is asserted that in fixing a quota the manufacturing capacity of a concern is not a determining factor, 850 and it is denied that the Government has acted arbitrarily.
It is also urged that the petitioners should be denied relief on the ground of laches.
The Union of India rests its case on the Industrial Policy Resolution of 1956.
Under that Resolution, however, it was decided that no objection would be taken to the continuance of the manufacture of arms and ammunition by existing units in the private sector already licensed for such manufacture provided the operation of those units was strictly restricted to the items already manufactured by them and that no expansion of their production or increasing the capacity of the items already produced was undertaken without the prior sanction of the Government of India.
Plainly, what was envisaged was a prohibition against an increase in the quota, not its curtailment.
Purporting to implement the Industrial Policy Resolution, the Government issued instructions that the quota fixed should be such that the market was not flooded with arms and ammunition.
No objection can be raised to that.
It is as it should be, but with that primary consideration defining the outer limits, there are other factors which govern the fixation of the actual quota.
There is the production capacity of the factory, the quality of guns produced and the economic viability of the unit.
The Government is bound to keep these in mind while deciding on the manufacturing quota.
There is need to remember that the manufacture of arms has been the business of some of these units for several years and the Industrial Policy Resolution contains a specific commitment to permit the continuance of those factories.
On the other side, the Government is entitled to take into consideration the requirements of current administrative policy pertinent to the maintenance of law and order and internal security.
Any curtailment of the quota must necessarily proceed on the basis of reason and relevance.
If all relevant factors are not considered, or irrelevant considerations allowed to find place, the decision is vitiated by arbitrary judgment.
On the material placed before us, we are not satisfied that the Government of India has taken into careful consideration the several elements necessary for forming a decision on the quota permissible to each of these petitioners.
We are of opinion that it should do so now.
And, for that purpose, the petitioners should be entitled to place before the Government a fresh and complete statement of their case, with supporting written material, to enable the Government to reach a just decision in each case.
We need not, in the circumstances, consider the other grounds on which the petitioners claim relief.
851 On behalf of the Government it is urged that there is no fundamental right under Article 19(1)(g) of the Constitution to carry on the manufacture of arms.
That contention is disposed of shortly.
The , expressly contemplates the grant of licences for manufacturing arms.
An applicant for a licence is entitled to have it considered in accordance with the terms of the statute and to have for its grant on the basis of the criteria set forth in it.
The other contention on behalf of the Government is that the petitioners are guilty of laches.
We are not impressed by the contention for the reason that the licences are granted for specific periods with a right to apply for renewal on the expiry of each period.
Each renewal constitutes a further grant of rights and it is open to the applicant to show on each occasion that the quota governing the preceding period should now be revised in the light of present circumstances.
Besides, the petitioners have been continuously agitating for the restoration of their quota.
Having regard to the peculiar circumstances of these cases, we are not inclined to deny them relief.
Accordingly, we allow the writ petitions and direct the respondent Union of India to reconsider the manufacturing quota fixed in the case of each petitioner after allowing a reasonable period to the respective petitioners to set forth their case on the merits, with such supporting written material as they may choose to place before it.
N.V.K. Petitions allowed.
| Prize Chits are one type of saving schemes.
In Prize Chits the organiser collects subscription in one lump sum or by monthly instalments spread over a specified period from the subscribers to the schemes.
Periodically, the numbers allotted to the members holding the tickets or units are put to a draw and the member holding the lucky ticket gets the prize either in cash or in the form of an article of utility, such as a motor car, scooter etc.
Once a person gets the prize, he is very often not required to pay further instalments and his name is deleted from further draws.
In case members do not get any prize, the schemes usually provide for the return of subscription paid by the members with or without an additional sum by way of bonus or premium at the end of the stipulated period.
As the flood of funds flowing through these prize chits benefited only the organisers of such schemes, and the total number of people victimised by these projects were considerable and injury to the community substantial, the Central Government set up a Study Group which went into the operation of these schemes.
The Report of the Study Group demonstrated the many sinister effects and also exposed the anti social impact upon the community by the operation of such schemes, and recommended to the State to intervene and interdict.
The Central Government thereupon undertook legislation for curbing the effect of the operation of these schemes by enacting the .
The petitioners in their writ petitions under Article 32 of the Constitution assailed the aforesaid statute: (1) contending that a package of proper safeguards would adequately protect the community, a total ban being recklessly excessive, unintelligently over broad and, therefore, unconstitutional, under Article 19(1)(g), (2) conventional chits and prize chits are substantially similar and, therefore, permission to continue 'conventional chits ' and prohibition of prize chits was discriminatory under Article 14, (3) there is a discriminatory exemp 802 tion from the operation of the prohibition in regard to those categories of prize chits which fall within section 11, and (4) the legislation being aimed at prize chits and intended to ban lotteries, would fall within the State List, Entry 34 List II and Parliament cannot enact such a law under Entry 7 of List III.
Dismissing the writ petitions, ^ HELD: (1) (i) There is a sufficient justification for undertaking legislation restricting the freedom to fleece through prize chits.
[810E].
(ii) The legislation cannot be struck down on the score of article 19(1)(g) of the Constitution.
[811F] (iii) The requirements of article 19(6) are, the reasonableness of the restriction upon the fundamental right to trade, the measure of reasonableness being the compelling need to promote the interest of the general public.
[810H] 2.
Conventional chits and prize chits are different categories with different financial features and different damaging effects.
There is, therefore, no force in the plea of violation of Article 14.
[812A] 3.
A bare reading of section 11 makes it clear that the exempted categories do not possess the vices of private prize chits.
What are exempted are prize chits and money circulation schemes promoted by or controlled by the State Governments, the Central Government, or the State Bank of India or the Reserve Bank.
Even Rural Banks and Cooperatives covered by section 11, are subject to public control.
Charitable and educational institutions are exempted only if they are notified by the State Government in consultation with the Reserve Bank.
There is, therefore, sufficient justification to justify the different classification of these items and their exemption cannot be called in question on the ground of violation of article 14.
[812G H; 813A] 4.
In pith and substance the present legislation is not one against lotteries.
It deals with a special species of contracts with sinister features, although one such feature is the award of prizes to subscribers.
While motives cannot validate or invalidate a legislation the core of the subject matter must govern competency.
[813 C D] 5.
In matters of economics, sociology and other specialised subjects, courts should not embark upon views of half lit infallibility and reject what economists or social scientists have, after detailed studies, commanded as the correct course of action.
The final word is with the Court in constitutional matters but judges hesitate to 'rush in ' where even specialists 'fear to tread '.
If experts fall out, court, perforce, must guide itself and pronounce upon the matter from the constitutional angle, since the final verdict, where constitutional contraventions are complained of, belongs to the judicial arm.
[811B C] 6.
When a general evil is sought to be suppressed some martyrs may have to suffer for the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular individualisations.
[811G] 7.
Judicial validation of a social legislation only keeps the path clear for enforcement.
Spraying legislative socio moral pesticides cannot serve any purpose unless the target area is relentlessly hit.
This legislation enacted in 803 response to expert recommendation and popular clamour is to be implemented by dynamic State Action.
[813E F] 8.
The possible hardship that bona fide prize chit promoters may suffer on account of the total prohibition clamped down by this legislation can be relieved against by the Central Government acting under Section 12.
[813F] 9.
Under Article 32 the Court 's function is not to give advisory opinion but to pronounce upon transgression of fundamental rights by State action.
[813H 814A]
|
N: Criminal Appeal No. 117 of 1978.
(Appeal from the Judgment and order dt.
5 12 77 of the Punjab & Haryana High Court in Criminal Misc.
Petition No. 3892 M of 1976).
R. section Narula, M. section Marwah and D. section Narula for the appellant.
section K. Mehta, K. R. Nagaraja and P. N. Puri for the respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Jagir Singh, the appellant in this appeal by special leave, was married to Kirpal Kaur in 1951.
Husband and wife became estranged in 1954, since when they have been living separately.
Ranbir Singh, the issue of the marriage, was born in 1954.
Jagir Singh married again and it is said that he has a son and a daughter by the second wife.
On 25th May, 1971, Kirpal Kaur and Ranbir singh filed an application for maintenance under Section 488 of the Criminal Procedure Code, 1898.
One of the defences raised by the appellant to that application was that Ranbir Singh was a major and, therefore, not entitled to claim maintenance under Section 488.
The Magistrate held that Ranbir Singh was a student who was unable to maintain himself and, therefore, the question whether he was a major or a minor was immaterial.
On 19th May, 1973, he made an order awarding maintenance at the rate of Rs. 200/ per month to Kirpal Kaur and Rs. 75/ per month to Ranbir Singh, Jagir Singh filed a revision petition before the Sessions Judge.
By consent of the parties, the Sessions Judge made a reference to the High Court recommending that the award of maintenance in favour of the wife should be reduced to Rs. 150/ per month and that the award of Rs. 75/ per month to the son should be confirmed.
The reference was accepted by the High Court.
The Criminal Procedure Code 1898 was repealed and the Criminal Procedure Code 1974 was enacted in its place.
The new Code came into force on 1st April, 1974.
On 3rd May, 1974, the appellant made an application before the Magistrate, purporting to be under Section 127 of the new Code, for cancellation of the order of maintenance in favour of the son on the ground that the son had attained majority 285 and did not suffer from any infirmity or abnormality which prevented A him from maintaining himself.
It was claimed on behalf of the appellant that under the new Code it was not permissible to award maintenance or enforce an order to maintenance in favour of a child who had attained majority and who was not unable to maintain itself by reason of any physical or mental abnormality or injury.
On 3rd June, 1974, the son filed a counter admitting that he had attained majority but claiming that he was still a student, unable to maintain himself.
The son claimed that the order in his favour had been validly passed under the old Code and continued to remain in force notwithstanding the enactment of the new Code.
On 9th May, 1975, the learned Magistrate allowed the application of the father under Section 127 of the Criminal Procedure Code 1974 and cancelled the order for maintenance made earlier in favour of the son.
Ranbir Singh, the son, filed a Revision Application before the Sessions Judge.
It was dismissed on 12th March, 1976.
The learned Sessions Judge held that the order made under Section 488 of the old Code could survive under Section 484(2) of the new Code if there was a corresponding provision under the new Code which enabled the award of maintenance to a major child.
Since there was no such corresponding provision the order under Section 477 in favour of Ranbir Singh ceased to be in force.
Ranbir Singh then filed a Revision Application before the High Court of Punjab and Haryana which was allowed on 5th December, 1977.
The High Court held that notwithstanding the change in the law which disentitled a major child from claiming maintenance, Section 125 of the new Code did correspond to Section 488 of the old Code.
Therefore, the order for maintenance in favour of Ranbir Singh was saved by Section 484(2) of the Code of 1974.
1974 Jagir Singh has preferred this appeal after obtaining special leave from this Court under Article 136 of the Constitution.
Shri R. section Narula, learned Counsel for the appellant contended that the Revision Application to the High Court was incompetent as it was barred by the provisions of Section 397(3) of the Code of Criminal Procedure 1974.
He argued that the right of the respondent to invoke the revisional jurisdiction of a superior Court became exhausted when he invoked the revisional jurisdiction of the Sessions Judge.
Shri Narula further contended that under Section 125 of the Criminal Procedure Code 1974, a major son who did not suffer from any physical or mental abnormality or injury which prevented him from maintaining himself was not entitled to get an order for maintenance in his favour and that an order made in favour of such a son under Section 488 Criminal Procedure Code of 1898 was not saved either by Section 484(2) of the Code of Criminal Procedure 1974 or Sections 6 and 24 286 of the General Clauses Act.
Shri section K. Mehta, learned Counsel for the respondent submitted that the revision application before the High Court could be treated and maintained as one directed against the order of the Sessions Judge rejecting the Revision Application made to him.
In any case he argued that the Revision Application could be treated as one under Article 227 of the Constitution.
He contended that the order of the Magistrate under Section 488 of the Criminal Procedure Code 1898 continued to be in force and that it could not be cancelled merely because Section 125 did not provide for the award of maintenance to a major son who did not suffer from any abnormality or injury.
The first question for consideration is whether the High Court was precluded from interfering with the order of the Magistrate in the exercise of its revisional jurisdiction by reason of the provisions of Section 397(3) of the Criminal Procedure Code 1974.
Section 397 which corresponds to Section 435 of the Criminal Procedure Code 1898 invests the High Court and the Sessions Judge with concurrent revisional jurisdiction over inferior criminal Courts within their jurisdiction The District Magistrate who also had revisional jurisdiction under Section 435 of the Code of Criminal Procedure 1898 is now divested of such jurisdiction.
In addition, there are, in the 1974 Code two important change Both of which are apparently designed to avoid delay and to secure prompt rather than perfect justice.
The first change is that introduced by Section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding.
The second is that introduced by Section 397(3) which provides that if an application under the Section has been made by any person either to the High Court or to the Sessions Judge, and further application by the same person shall be entertained by the other of them.
We are concerned with this provision in this appeal.
The object of Section 397(3) is clear.
It is to prevent a multiple exercise of revisional powers and to secure early finality to orders.
Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Session Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority.
The language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation.
We may also mention here that even under Section 435 of the previous Code of Criminal Procedure, while the Sessions Judge and the District Magistrate had concurrent jurisdiction, like present Section 397(3) previous Section 435(4) provides that if an application under the Section had been made either to the Sessions 287 Judge or District Magistrate no further application shall be entertained by the other of them.
In order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead or an one directed against the order of the Magistrate We do not think that it is permissible to do so.
What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute.
It is a "well known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox vs Bishop of Chester(1) "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th edition, page 109).
When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court 's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge.
The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge 's order.
If the` revision application to the High Court could not be maintained under the provisions of the Criminal Procedure Code, could the order of the High Court be sustained under Article 227 of the Constitution, as now suggested by the respondent ? In the first place the High Court did not purport to exercise its power of superintendence under Article 227.
The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power.
In the second place the power of judicial superintendence under Article 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors.
Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of Superintendence was not meant to circumvent statutory law.
In the third place it was doubtful if the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed.
By the 42nd Amendment Act clause (5) was added in Article 227 of the Constitution and it says "Nothing in this article shall (1) (1824) 2 B & 635.
288 be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision".
Clause (5) of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub Section (2) of Section 224 of the Government of India Act, 1935 which it was held conferred powers of administrative superintendence only and not the power of Judicial Superintendence.
In the present case the revision application was, however, filed before the passing of the 42nd Amendment Act and it was therefore, argued by the learned Counsel for the respondent that the High Court could exercise the power of superintendence possessed by it before the 42nd Amendment.
We have serious doubts.
Article 227, before the 42nd Amendment, gave no right to any party.
An application invoking the High Court 's power of Superintendence did not create any vested right in the suitor.
There could, therefore, be no question of any vested right being taken away or not being taken away by the amendment.
It was just a question whether the High Court possessed the power of Superintendence on the date of the High Court 's order.
There is no dispute that it did not.
We do not wish to pursue the matter further as in our view there was no case to warrant interference under Article 227 of the Constitution.
In view of the foregoing discussion, the revision application to the High Court must be held to be incompetent.
In that view it is unnecessary to go into the question whether the original order under Section 488, Criminal Procedure Code, 1898 in favour of the respondent could be cancelled under Section 127 of the Criminal Procedure Code 1974, But the lower Courts went into the question at some length and detailed submissions were made before us.
We will express our opinion briefly.
Section 484(1) of the 1974 Code repeals the Code of Criminal Procedure 1898.
Section 484(2) (a) provides for the continuance and disposal of pending cases in accordance with the provisions of the old Code.
Section 484(2)(b) provides that 'all notifications published,, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments made under the old Code and which are in force immediately before the commencement ' of the new Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of the new Code.
In the present case the order of the Magistrate under Section 488 of the old Code awarding maintenance to the respondent was made on 19th May, 1973.
The new Code came into force on 1st April, 1974.
Therefore, the order was in force immediately before the commencement of the new Code.
289 It must, therefore, be deemed to have been made under the corresponding provision of the new Code.
The question,, therefore, is whether there is any provision of the new Code corresponding to the provision of the old Code under which maintenance was awarded to the respondent.
As we said, the respondent was awarded maintenance under Section 488 of the Criminal Procedure Code 1898.
Under Section 488 Criminal Procedure Code 1898 a person having sufficient means and neglecting or refusing to maintain his wife or his legitimate or illegitimate child unable to maintain itself could be ordered to make a monthly allowance for the maintenance of his wife or such child.
The word child used in Section 488 led to some controversy whether a person could be ordered to pay maintenance to a child who had attained majority but who was unable to maintain itself.
In Nanak Chand vs Chandra Kishore Agarwal & Ors.
(1) the Supreme Court held that the word 'child ' in Section 488 did not mean a minor son or daughter and that the real limitation was contained in the expression 'unable to maintain itself.
Irrespective of whether a son or daughter was a major or minor, a father was bound to maintain the son or daughter if such son or daughter was unable to maintain himself or herself.
Section 125 of the 1974 Code makes a slight departure.
Under this provision child who has attained majority is not entitled to be awarded maintenance unless such child is unable to maintain itself by reason of any physical or mental abnormality or injury.
According to Shri R. section Narula in view of the change it cannot be said that the new Code contains ally provision corresponding to the provision in the old Code which authorised the award of maintenance to a child who had attained majority and who was unable to maintain itself even if such child did not suffer from any physical or mental abnormality or injury.
Therefore, according to Shri Narula, Section 484(2) (b) does not save all order awarding maintenance in favour of a child who has attained majority and who does not suffer from any physical or mental abnormality or injury.
It is difficult to agree with the submission of Shri Narula.
To accept the submission would be to give the expression "corresponding provision" the meaning "identical provision".
Whenever an Act is repealed and re enacted there are bound to be changes and modifications.
To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a corresponding provision would be to practically mullify the effect of a "Repeal and Savings" provision like Section 484(2) (b) of the new Code.
In the Shorter oxford English Dictionary Third Edition Vol.
I, the word 'correspond ' is said to mean ' (1) to answer to something else in the way H (1) A.l.
R 290 of fitness; to agree with; be conformable to; be congruous or in harmony with.
(2) To answer to in character or function; to be similar to '.
In Butterworths 'Words and Phrases Legally defined ' Second Edition Vol. 1, it is said " 'to correspond ', does not usually, or properly, mean 'to be identical with ', but 'to harmonise with ', or 'to be suitable to ' " and reference is made to Sackville West vs Holmesdale (Viscount) (1).
We are, therefore, of the view that Section 125 of the new Code corresponds to Section 488 of the old Code notwithstanding the fact that under the new Code a child who has attained majority and who does not suffer from any infirmity is not entitled to be maintained by the father.
We also note that there are no words in Section 484(2) (b) limiting its application to orders made and sentences passed which are not inconsistent with the provisions of the new Code.
There are no such limiting words as may be found as for example in Section 24 of the General Clauses Act which limits its application to an order, rule, etc. "so far as it is not inconsistent with the provisions re enacted".
This does not mean that statutory instruments made under the old Code and which are inconsistent with the provisions of the new Code continue to be effective.
All that Section 484(2) (b) says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code.
Their validity will have to be tested like any other statutory instruments made under the provisions of the new Code and they will have to answer the test whether they are consistent with the provisions of the new Code.
But, in the case of Judicial orders made and sentences passed such orders and sentences which have attained finality and which have created rights in parties do not have to answer the test of being consistent with the provisions of the new Code.
We, therefore, hold that the order for maintenance made in favour of the respondent must be deemed to be an order made under Section 125 of the new Code and that it does not automatically cease to be effective on the coming into force of the new Code.
The High Court arrived at this conclusion and thought that it was sufficient to hold in favour of the respondent and to allow the Revision Application.
We do not think that the High Court was right in stopping there.
The High Court should have further considered the question whether the order for maintenance which was deemed to be an order under Section 125 of the new Code could not be cancelled under the provisions of Section 127 of the new Code.
Once the, order under Section 488 is deemed to be an order under Section 125 of the new Code, it must be so deemed for all purposes including the application of Section 127 of the new Code.
Section 127 provides for consequential orders upon proof of a change in the circumstance of any person (1) (1878) L.R. 4 l. 543.
291 receiving, under Section 125, a monthly allowance, or ordered under the A same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be.
The admitted attainment of majority of the respondent and the change of the law were surely circumstances which entitled the appellant to have the order in favour of the respondent cancelled.
We accordingly allow the appeal and set aside the judgment of the High Court.
B M.R. Appeal allowed.
| Ranbir Singh is Jagir Singh 's son from his separated first wife.
Ill 1971 he and his mother applied for maintenance under section 488 of Cr.P.C., 1898.
Although Ranbir Singh was a major, maintenance was awarded to him on the ground that he was a student unable to maintain himself.
In April 1974, the new Cr.
P.C. came into force, and under section 127 jagir Singh applied for cancellation of the maintenance order, on the ground that the major son WAS not prevented from maintaining himself through any infirmity or abnormality, and is not entitled to maintenance under the new code.
The respondent contended that the maintenance order had been validly passed under the old Code, and continued to remain in force notwithstanding the enactment of the new Code but the Magistrate cancelled the maintenance order, Ranbir Singh 's Revision Application was dismissed by the Sessions Court, on the ground that the order made under section 488 of the Cr.P.C., 1898 would not survive under section 484(2) of the Cr.
P.C. 1974 due to the absence of a corresponding provision under the new Code, enabling his maintenance.
He then applied to the High Court for a Revision.
The High Court allowed the Revision holding that 9. 125 of the Cr.
P.C., 1974 did correspond with section 488 of the Cr.
P.C. 1898.
The appellant contended that Ranbir Singh 's Revision application to the High Court was barred by section 397(3), Cr.P.C., 1974, and was incompetent, and that his right to invoke revisional jurisdiction of a superior court became exhausted when he moved the Sessions Court in Revision.
He further contended that the maintenance order was not saved either by section 484(2), Cr.
P.G 1974 or section 6 and 24 of the General Clauses Act.
The respondent submitted that his Revision application before the High Court could be treated and maintained, as, one directed against the Sessions Judge 's order rejecting his Revision application, or It could be treated as one under article 227 of the Constitution.
Allowing the appeal, the Court.
^ HELD: (1) The power under Act.
227 is discretionary.
The power of judicial superintendence under it could only be exercised sparingly to keep subordinate courts and Tribunals within the bounds of their authority, and not to collect mere errors.
Where the statute banned the exercise of revisional 283 powers by the High Court, it would require very exceptional circumstances to A warrant interference under article 227, since the power of superintendence was not meant to circumvent statutory law.
By the 42nd.
Amendment Act, clause (5) was added in article 227, which is a verbatim reproduction of section 224(2) of the Government of India Act, 1935, conferring powers of administrative superintendence only, and not the power of judicial superintendence.
[287F H, 288A] (2) In the Cr.
Of 1974 the District Magistrate is divested of his revisional jurisdiction over inferior criminal courts.
In addition, there are two important changes apparently designed to avoid delay and to secure prompt justice.
The first change is introduced by section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding.
The second change is introduced by section 397 (3) under which any person aggrieved by an order of an inferior criminal court, is given the option to approach either the Sessions Judge or the High Court, and once he exercises the option, he is precluded from invoking the revisional jurisdiction of the other authority.
The object is, to prevent a multiple exercise of revisional powers and to secure early finality to orders.
[286C F] For vs Bishop of Chestor, ; ; Maxwell (11th Edn. page 109); applied.
(3) Whenever an Act is repealed and re enacted, there are bound to be changes and modifications.
To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a "corresponding provision", would be to practically nullify the effect of a "Repeal and Savings" provision like section 484 (2) (b) of the new Code.
"To correspond" does not usually, or properly, mean to be identical with but to harmonise with, or to be suitable to.
There are no words in section 484 (2) (b) limiting its application to orders made, and sentences passed, which are not inconsistent with the provisions of the new Code.
All that section 484(2)(b) says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code.
Their validity will have to be tested like any other statutory instrument made under the provisions of the new Code.
There validity will have to be tested like any other statutory made under the provisions of the with the provisions of the new Code.
and they will have to answer the test whether they are inconsistent with the provisions of the new Code.
But in ease of judicial orders made, and sentences passed, such orders and sentences which have attained finality and which have created rights in parties, do not have to answer the test of being consistent with the provisions of the new Code.
[289F H, 290B E] Butterworth 's (Words and Phrases legally defined)(2nd Edn Vol.
I), Shorter oxford English Dictionary (3rd Edn.
I); Sackville West vs Holmsdale (Viscount), [1870] LR. ; applied.
(4) Section 125 of the new Code corresponds to section 488 of the Cr.P.C., 1898 notwithstanding the fact that under the Cr.P.C. Of 1974, a child who has attained majority, and who does not suffer from any infirmity, is not entitled to be maintained b`y the father.
Once an order under section , is deemed to be an order under section 125 of the Cr.
P.C. 1974, it must be to deemed for all purposes, including the application of section 127 of the new Code.
[290B, G] 20 817 SCI/78 284 Nanak Chand vs Chandra Kishore Aggarwal & Ors., ; ; referred to.
|
Appeal No. 596 of 1966.
Appeal by special leave from the judgment and order dated January 27, 1964 of the Allahabad High Court in Special Appeal No. 270 of 1958.
section T. Desai and C. P. Lal, for the appellant.
C. B. Agarwala and J. P. Agarwal, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Allahabad accepting a petition under article 226 of the Constitution and directing the District Board, Moradabad, not to levy upon M/s Nundan Sugar Mills,, Amroha, respondent before us, circumstances and property tax for any one year exceeding the sum of Rs. 200.
The High Court held that no special resolution of the Board had been passed, nor had a notification been made imposing the tax, under section 119 and section 120, respectively, of the United Provinces District Boards Act, 1922 (U. P. Act of 1922) hereinafter referred to as the Act.
The relevant facts out of which this appeal arises are these On July 28, 1925, it was notified under sub section
(2) of section 120 of the Act that the District Board of Moradabad, in exercise of the powers conferred by section 108, sub section
(2), of the Act has imposed the following tax, with effect from September 1, 1925: "A tax on.
all persons ordinarily residing or carrying on business in the rural area of the Moradabad District according to their circumstances and property, at the rate of four pies per rupee on the total taxable income; provided that the total amount of tax imposed on any person shall not exceed Rs. 200.
Provided also that no income once assessed shall be reassessed".
On May 28, 1927, the District Board took action upon a memo randum prepared by the Chairman of the District Board.
The memorandum of the Chairman pointed out: ". . the maximum amount of tax recoverable from an assessee should be raised from Rs. 200/ to Rs. 500/ P.A. Hence proposal (c) framed under section 115 sanctioned by G. 0.
No dated 28 7 25 so be modified as to read as under: "That there shall be a rate of tax 4 pies in the rupee. provided that the total amount of tax imposed on any person shall not exceed Rs. 5001 The resolution of the Board was in these terms: "The bye laws be modified accordingly after necessary publication and sanction.
The assessing officer to assess them at 2 pies (sic) in anticipation of final sanction".
3 On January 11, 1928, the Government of United Provinces issued a, notification amending the rules for the assessment and collection of a tax on circumstances and property in the rural areas of the Moradabad District.
The following rule 16 was added: "16.
The total amount of tax imposed on any person shall not in any year exceed the sum of Rs. 5001 .
" On August 31, 1931, the Board passed another resolution approving the following memorandum: ". .
The words and figures 'Rs. 500 ' be substituted by 'Rs. 2,000 ' in rule 16 of the rules for the assessment and collection of a tax on circumstances and property in the rural area of the Moradabad district published with Government Notification No. . dated 11 1 1928".
The exact terms of the resolution were: "Resolved unanimously that thememo.
be approved and necessary action be taken on it.
If publication is required, it be done and Government be moved to accord sanction for the same".
On March 18, 1932, the Government of United Provinces issued a notification amending rule 16.
The amendment it was in the following terms: "In Rule 16 published with notification No. 33/IX185(14 24) dated January 19, 1928 'Rs. 2,000 ' shall be substituted for 'Rs. 500".
It appears that no further action was taken by the District Board to enforce this amendment in rule 16 or the amendment dated January 11, 1928.
Further action is contemplated by sections 119 and 120, read with section 12 1, of the Act.
These sections may be reproduced in full.
" 119.
Resolution of board directing imposition of tax Upon receipt of the copy of the rules sent under the preceding section, the board shall by special resolution direct the imposition of the tax with effect from a date (to be specified in the resolution) not less than six weeks from the date of such resolution".
" 120.
Imposition of tax (1) A copy of the resolution passed by the board under Section 119 shall be submitted to the State Government.
(2) Upon receipt of the copy of the resolution the State Government shall notify in the official Gazette the imposition of the tax from the appointed date, and the imposition of a tax shall in all cases be sub ject to the condition that it has been so notified.
(3) A notification of the imposition of a tax Linder sub section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act".
4 "121.
Procedure for altering taxes The procedure for abolishing or suspending a tax, or for altering a tax in respect of the matters specified in clauses (b) and (c) of sub section (1) of Section 115 shall, so far as may be, be the procedure prescribed by Sections 115 to 120 for the imposition of a tax".
Clauses (b) and (c) of sub section (1) of section 115, referred to in section 121, read: "(b) the persons or class of persons to be made liable and the description of the property or other taxable thing or circumstances in respect of which they are to be made liable, except where and in so far as any such class ,or description is already sufficiently defined under clause (a) or by this Act , (c) the amount or rate leviable from each such person or class of persons;" It is common ground that the procedure laid down in sections II 5 to 118 has been followed by the Board.
The only dispute between the parties is whether it is necessary that a resolution should be passed under section 119 and a notification issued under section 120 before effect can be given to a notification made under section 118 altering the rules.
In other words, was it necessary to pass a resolution under section 119 after the issue of the notification dated March 18, 1932, or the notification dated January 11, 1928, referred to above? Both the learned Single Judge, and the Division Bench who heard the appeal from the learned Single Judge, have come to the conclusion that without a resolution under section 119 and a notification under section 120, no tax can be levied in pursuance of the notification dated March 18, 1932, or notification dated January 11, 1928.
It may be mentioned that the High Court directed the District Board not to levy upon the petitioner circumstances and property tax for any year exceeding the sum of Rs. 200/ .
There is no dispute that the Board could levy upon the petitioner tax up to the sum of Rs. 200/ .
The learned counsel for the appellant contends that if the procedure laid down in sections 115 to 118 has been followed, it is not necessary that there should be a resolution under section 119 and a notification under section 120.
He says that rules can be made under section 172, read with section 1.76, of the Act, and once rules are made there is nothing more to be done.
But there is one fallacy underlying the argument of the learned counsel, and that is that it misses the object of sections 119 and 120 which is to fix the date from which the tax can be imposed.
If no date is fixed, no tax can be imposed.
Once the Board passes a special resolution under section 119, it has to go to the Government under section 120, and then the Government notifies the imposition of tax from the appointed date.
It is then that the notification becomes conclusive proof of the fact that the 5 tax has been imposed in accordance with the provisions of this Act.
Sub clause (3) of section 120 clearly proceeds on the basis that the imposition of tax takes place on a notification issued under section 120 and not on the issue of a notification under section 118.
The learned counsel invited our attention to Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur(1) but we are unable to see how that case assists him.
No question of sections 119 and 120 being directory arises in this case because, in our view, without a resolution under section 119 and a notification under section 120, no tax can be imposed.
The learned counsel also urges that: (a) no writ petition is maintainable challenging a preConstitution matter, and (b) the respondent not having appealed under section 128 of the Act, the petition was not maintainable.
In our view, there is no merit in these contentions.
The respondent is being charged tax now.
He is entitled not to be taxed except under the authority of law, vide article 265 of the Constitution.
There is no question of challenging any pre Constitution matter.
The respondent is challenging a post Constitution action on the ground that there is no authority of law for the action.
Regarding the second point, the High Court held that an appeal to the District Magistrate under section 128 was not likely to be of much assistance to the petitioner and rejected the contention.
It is well settled that a, provision like section 128 does not oust the jurisdiction of the High Court to entertain a petition under article 226 and it is for the High Court to exercise its discretion whether to entertain the petition or not.
The learned counsel has not pointed out anything to us to show that the discretion has not been properly exercised.
In the result the appeal fails and is dismissed with costs.
| In July 1925 it was notified under section 120(2) of the U. P. District Boards Act, 1922 that the District Board of Moradabad in exercise of powers conferred by section 108(2) of the Act had imposed a tax with effect from September 1, 1925, on the residents of the District according to their circumstances and property at the rate of 4 pice per rupee on the total taxable income subject to a maximum of Rs. 200.
In May 1927 the District Board passed a resolution increasing the maximum from Rs. 200 to Rs. 500 and thereafter the State Government issued a notification in January 1928, amending the rules for the assessment and collection of tax so as to increase the maximum to Rs. 500.
In August 1931, the Board passed another resolution in creasing the maximum further to Rs. 2,000 and the State Government issued a notification in March 1932 further amending the rules so as to incorporate the new maximum.
No further action was taken by the District Board to enforce these amendments of the rules.
Upon a writ filed by the respondents under Act, 226 of the Constitution, the High Court directed the District Board, Moradabad, not to levy upon the respondent a tax in excess of Rs. 200 per year on the ground that no special resolution of the Board had been passed nor a notification issued by the State under sections 119 and 120 respectively of the Act imposing the tax with revised maximum limits.
In appeal to the Supreme Court it was contended on behalf of the appellant that when the procedure laid down in sections 1.15 to 118 had been followed whereby the amendments had been approved by resolutions and notified, it was not necessary that there should be a further resolution and notification under section 119 and section 120 respectively.
Held: The tax with the revised maximum limits introduced in 1928 and 1932 could not be imposed without a resolution under section 119 and a notification under section 120.
[5B] The object of sections 119 and 120 is to fix the date from which the tax can be imposed.
If no date is fixed, no tax can be imposed.
Once the Board passes a special resolution under, section 119, it has to go to the Government under section 120, and then the Government notifies the imposition of tax from the appointed date.
It is then that the notification becomes conclusive Proof of the fact that the tax has been imposed in accordance with the provisions of this Act Sub clause (3) of section 120 clearly proceeds on the basis that the imposition of tax takes place on a notification issued under section 120 and not on the issue of a notification under section 118.
[4G 5A] Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur, ; ; referred to.
N)1SCI 2
|
ivil Appeal No. 1837 of 1990.
From the Judgment and Order dated 17.1.1989 of the Patna High Court in C.W.J.C. No. 4276 of 1988, A. Sharan for the Appellants.
Pankaj Kalra and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Delay condoned.
Special leave granted.
This appeal arises out of the decision of the Patna High Court 470 whereby it struck down the selection made for appointments in the junior teaching posts in medical colleges in the State and directed a fresh selection list to be prepared after shifting the last date for receipt of applications to 30th June, 1988.
The facts giving rise to this appeal, briefly stated, are as under.
The State of Bihar published an advertisement inviting applications for appointment to the posts of (i) Assistant Professor (clinical subject); (ii) Registrar; (iii) Assist ant Clinical Pathologist; (iv) Anesthetist; (v) Resident Medical Officer and (vi) Demonstrator (Tutor) in non clini cal subject for different Medical Colleges and Medical College Hospitals in the State of Bihar.
For the post of Assistant Professor only such officers who had worked as Resident or Registrar in Medical Hospital recognised for imparting M.B.B.S. studies by the Medical Council of India and having three years experience of such post were consid ered eligible.
The last date for receipt of the application was fixed as 31st January, 1988.
Pursuant to the said adver tisement applications were received from eligible candidates and the select list or panel was prepared for appointments to the respective posts.
The respondents and some interven ors who held appointments as junior teachers in one or the other Medical Colleges in the State questioned the validity of the State 's action of inviting applications for prepara tion of a list for appointments to the advertised posts mainly on the ground that the last date for receipt of applications fixed as 31st January, 1988 (hereinafter called 'the cut off date ') deprived them of the opportunity to compete for the posts as they did not complete the requisite experience criterion of three years by that time.
It was contended that this cut off date was arbitrarily fixed and was, therefore, violative of Article 14 of the Constitution.
The High Court took the view that the State Government had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year.
This is clear from the following observation made by the High Court: " . . advertisement in the past including one in the year 1983 (Annexure 1) always fixed 31st June as the date " . (Emphasis supplied) The use of the word 'always ' indicates that the High Court was under the impression that in the past the cut off date was always fixed as 31st June (it should be 30th June) for the preparation of the panel for appointments to the posts in question.
Elsewhere also in the judgment there are obser vations which disclose that the High Court laboured 471 under the belief that the cut off date was always fixed as 30th of June of the relevant year.
This becomes obvious from the following criticism also: "If the State is determined to achieve such a goal and is ready to make its activity predictable it is a welcome sign but such desired predictability can equally be achieved by adhering to the schedule of the past and maintaining 30th June of the years as the last date for the application.
If they had not followed any rule in the past and they propose to follow a rule in this regard in future, they can do so without causing any violation to any legal right of any incumbent by at least showing adherence to the reckoning date which until now had been the last date of the month of June of the year." (Emphasis supplied) On this line of reasoning the High Court came to the conclu sion 'that the State Govermnent had acted arbitrarily in fixing the last date fox receipt of applications as 31st January, 1988 under the advertisement published on 29th December, 1987.
The High Court while upholding the conten tion based on Article 14 further observed "we would have ignored the arbitrariness in taking 31st January of the year as the reckoning date had we not taken notice of recalci trance of the, respondents in taking no step in the years intervening the selection in the year 1983 and the present selection".
The High Court, therefore, felt satisfied that there was no rationale in departing from the past practice and selecting 31st January, 1988 as the last date.
It is felt that in all fairness 30th of June of the year would be 'the .preferable date ' for reckoning the eligibility of the candidates.
The State Government was, therefore, directed to shift the last date for receipt of the applications from 3 1st January 1988 to 30th June, 1988 and to prepare a fresh panel thereafter and make appointments to the posts in question therefrom.
The State of Bihar feeling aggrieved by this order has approached this Court by special leave.
The learned counsel for the State submitted that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was 'always ' fixed as 30th of June of the relevant year in the past.
In order to dispel this assumption made by the High Court without examining the past advertisements the State Government has placed before us the advertisements issued from 1974 to 1980 which shows that different cut off dates were fixed under these different advertisements and at no time in the past between 1974 and 1980 was 30th of June fixed as the 472 relevant date.
It is true that the High Court did not have the benefit of the earlier advertisements but it is equally true that there was no material on the record of the High Court for concluding that in the past the cut off date was 'always ' fixed as 30th of June of the relevant year.
From the copies of the advertisements from 1974 to 1980 it tran spires that generally the cut off date was fixed between one to one and a half months after the date of issuance of the advertisement.
In the year 1983 for the first time the cut off date was fixed as 30th June, 1983.
On some occasions in the past the cut off date was extended, depending on the facts and circumstances obtaining at the relevant point of time.
It, therefore, becomes obvious from this documentary evidence that the factual premise on which the High Court has based its judgment is clearly erroneous.
The High Court was in error in thinking that in the past the cut off date was always fixed as 30th of June of the relevant year.
In fact except for a solitary occasion in 1983 when the cut off date was fixed as 30th June, 1983, at no other time in the past was that date fixed as the last date for receipt of the applications.
No advertisements were admittedly issued after 1983 and before the advertisement in question.
The present advertisement was published on 29th December, 1987 and the last date for receipt of applications was fixed thereunder as 3 ist January, 1988 leaving a time gap of a little over a month.
As pointed out earlier, on a perusal of the adver tisements issued from 1974 to 1980 it becomes obvious that normally the cut off date was fixed one or one and a half months after the date of advertisement.
It was, therefore, not the uniform practice of the State Government to fix the cut off date for eligibility purposes as 30th of June of the relevant year as was assumed by the High Court.
Once it is found that the High Court has based its decision on an erroneous assumption of fact, the decision cannot be allowed to stand.
It was, however, argued by the learned counsel for the respondents that the State Government should not be permit ted to introduce new facts in the form of advertisements issued from 1974 to 1980.
We do not think that such a tech nical approach would be justified for the simple reason that the assumption of fact made by the High Court is not borne out from record.
No material was placed before the High Court to justify the conclusion that 30th of June of the relevant year was 'always ' fixed as the cut off date in the past.
The High Court 's assumption of fact is, therefore, based on no evidence at all.
We have, therefore, thought it fit to permit the State Government to place material on record to justify its contention that the High Court had committed a grave error in assuming that in the past the cut off date was always fixed as 30th of June of the rele vant year.
473 It was next contended that this Court should not inter fere in exercise of its extra ordinary Jurisdiction under Article 136 of the Constitution.
In support of this conten tion reliance was placed on the observations of this Court in Municipal Board.
Pratabgarh & Anr.
vs Mahendra Singh Chawla & Ors., wherein this Court while correcting an error of law refused to interfere with the decision of the High Court directing reinstatement of the workman on the finding that the termination order was in valid.
That was, however, a case where the Court came to the conclusion that the employee was a capable hand and his services were actually needed by the appellant Municipal Board.
It was in those special circumstances that this Court while correcting the error refused to interfere with the order of reinstatement.
The decision, therefore, turned on the special facts of that case.
The appellant invited our attention to two decisions of this Court, namely, Union of India & Anr.
vs M/s. Pararnes waran Match Works & Ors., [1975]1 SCC 305 and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi vs State of U.P. & Ors.
in sup port of its contention that the High Court was in error in holding that the State had acted arbitrarily in fixing the cut off date.
In the first mentioned case by Notification No. 162 dated 21st July, 1967, which superseded the earlier notifications, provision was made that if a manufacturer gave a declaration that the total clearance from the factory will not exceed 75 million matches during a financial year, he would be entitled to a concessional rate of duty.
This Notification was amended by Notification No.205 dated 4th September, 1967, clause (b) whereof confined the concession, inter alia to factories whose total clearance of matches during the financial year 1967 68, as per declaration made by the manufacturer before 4th September, 1967, was not estimated to exceed 75 million matches.
Thus, the conces sional rate of duty could be availed of only by those who made the declaration before 4th September, 1967.
The re spondent was not a manufacturer before 4th September, 1967 as he had sought for a licence on 5th September, 1967 and was therefore, in no position to made the declaration before 4th September, 1967.
The respondent, therefore, challenged the cut off date of 4th September, 1967 as arbitrary.
Deal ing with the contention, this Court observed as under: "In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion.
1t need not give exemption or concession to everyone in order 474 that it may grant the same to some.
As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty.
" While pointing out that a classification could be rounded on a particular date and yet be reasonable, this Court observed that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless the circum stances show it to be capricious or whimsical.
When it is necessary for the legislature or the authorities to fix a line or a date and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or authority must be accepted unless it is shown to be capri cious or whimsical or wide off the reasonable mark.
In the second mentioned case this Court, while upholding the con stitutional validity of section 31 B of the U.P.Higher Educational Service Commission Act, 1980, answered two contentions, namely, (1) adoption of the cut off date in the said section as 3rd January, 1984 for the purposes of regu larisation of the services of ad hoc teachers appointed by the management of the affiliated colleges was arbitrary and irrational and violative of Article 14 inasmuch as equals were treated as unequals, and (ii) the Legislature could not arbitrarily adopt 3rd January, 1984 as the cut off date for regularisation of the services of ad hoc teachers merely because that was the date on which the 1983 order expired.
Agreeing with the High Court that the fixation of the date for the purposes of regularisation was not arbitrary or irrational, this Court observed that the object of section 3 I B was to regularise the services of ad hoc teachers ap pointed under the 1983 order till 3rd January, 1984.Ad hoc teachers who had been appointed prior to that date had legal sanction and therefore they constituted a distinct class.
This Court, therefore, felt that the legislature could not have adopted any other basis for purposes of regularisation and refused to interfere with the High Court 's order.
In the present case as pointed out earlier the past practice was to fix the last date for receipt of applica tions a month or one and a half months after the date of actual publication of the advertisement.
Following the past practice the State Government fixed the last date for re ceipt of applications as 31st January 1988.
Those who had . the required experience of three years by that date were, therefore, eligible to apply for the posts in question.
The respondents and some 475 of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution.
It is obvious that in fixing the last date as 31st January, 1988 the State Government had only followed the past practice and if the High Court 's attention had been invited to this fact it would perhaps have refused to inter fere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the rele vant year as the last date for receipt of applications.
Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date.
As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark.
The choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc.
It is not the case of any one that experienced candi dates were not available in sufficient numbers on the cut off date.
Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January, 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational.
We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government 's action of fixing the last date for receipt of applications as 31st January, 1988 as arbitrary.
It was lastly contended that the State Government had given an undertaking to the High Court that 'no appointment shall be made from any previous panel and that, as decided by this Court, if the panel, which is likely to be prepared pursuant to the advertisement in question, is allowed, appointments shall be made from the same panel or if that panel is not allowed and a new panel is required to be prepared, as directed by this Court, appointments shall be made from the same panel '.
This undertaking, in our opinion, cannot preclude the State from challenging the decision of the High Court.
In the result, this appeal succeeds.
The impugned deci sion of the High Court is set aside and the Writ Petition which has given rise to this appeal will stand dismissed with no order as to costs throughout.
Y. Lal Appeal allowed.
| These appeals arose as a sequel to certain directions of this Court in the famous Sanchaita Investment Company case, which by dint of tremendous advertisement campaign collected deposits amounting to several crores of rupees from thou sands of depositors spread all over India.
The firm pros pered and thereafter tied up and siphoned away a sizeable portion of its funds from its coffers for the benefit of the management personnel by acquiring movable and immovable properties in the names of the firm, relatives and benami dars.
Then they started making defaults in its obligations to the depositors.
The depositors approached the High Court and eventually the matter came up to this Court in 1983.
With a view to safeguard the interests of the depositors and ensure that the properties of the firm be duly identified and full and due benefit of the funds be diverted to its coffers, this Court by its order appointed a Commissioner to take charge of all the assets, documents, papers of the firm, agents, sub agents, transferees and benamidars.
Further to enable the Commissioner to gather all the assets of the firm, he was given powers to attach all assets and properties which in his prima facie opinion are of the ownership of the firm or any of its partners.
Such assets were to be put to sale if no objections are received there to within one month from the date of attachment.
All objections thus received in respect of such properties were to be forwarded to the Prothonotary of Calcutta High Court, and a Division Bench of the High Court was to dispose of the objections on merits.
By a further order dated 23rd September, 1985 this Court empowered the Commissioner to remove all unauthorised 283 persons or trespassers from possession of the property proposed to be sold, and the Commissioner to hand over vacant possession to the rightful purchasers.
One of the properties thus attached by the Commissioner by a public notice was house N. 52/1/1B Surendra Nath Baner jee Road, Calcutta.
It was subsequently brought to sale on "as is and where is basis".
Asit Kumar Mandal and two others purchased this property and requested the Commissioner to give them vacant possession.
Since the sale was on "as is and where is basis", the Mandais moved an application before the High Court Division Bench praying for the vacant posses sion of the said property and the same was granted.
Hence the appellants i.e. Paul Bros and Others, moved two Special Leave Petitions in this Court and claimed that they were bona fide tenants in the property even under the predecessors in interest of Mahamaya Devi in whose name the property was purchased by Sanchaita firm and therefore could be evicted only in accordance with due process of law after full contest, and could not be thrown out in summary pro ceedings just as if they were persons in unauthorised pos session of the property, or as if they were mere trespass ers.
On the other hand the Mandais contended that in terms of the orders of this Court, and of the Calcutta Division Bench they purchased the property only on the basis that they would get a perfect title and speedy possession.
Allowing the Special Leave Petitions, this Court, HELl): That the contention of the Mandais is not main tainable either in principle or on the terms of the direc tions of this Court.
The attachment and sale in pursuance of this Court 's order of the present property in question did not have the legal effect of invalidating any interests created or subsisting in the property by sale, transfer encumbrance or alienation prior to the attachment.
Even the sale was on "as is and where is basis".
The Courts order of 27th September, 1983 only empowered the Commissioner to remove all unauthorised persons and trespassers but persons who are in lawful possession of the 284 property could not be evicted forcibly or summarily.
The said order could not be interpreted to mean that the pur chasers would be entitled to vacant possession through the commissioner even by evicting bona fide tenants or other encumbrancer or independent out siders who had acquired interest for consideration in the property.
The object of the directions was to cut short the proliferation of litiga tion and to gather in expeditiously the assets of Sanchaita.
[292D E; 295H; 296B] Having regard to the large scale dealings, the special circumstances and the desperate situation, the Court made an exception and made it possible for the Commissioner to get false and frivolous claimants out of the way by a quick procedure because even normally the trespassers and unautho rised persons cannot be thrown out except by recourse to legal proceedings.
So this order could not be availed of to ride rough shod over the rights and interests of others in the properties which had been created bona fide.
Even third parties who have acquired real interests in the property either independent of, or even through Sanchaita could not be called upon to give up their rights which would mean to do more than merely realise what rightfully belongs to Sanchaita that is by conferring a better title than it had in fact acquired while purchasing those properties, [297B, G] So in the instant case, considering the materials and evidence and the records placed before the Court by the claimants/objectors, to prove that they are not stooges or false claimants but have bona fide right to possession, it was held that the auction purchaser could not evict Paul Brothers and Phani Bhushan Ghose except eviction proceedings in the normal course and in accordance with law as may be available to them against the claimants/objectors.
The claim 's of the other appellant was rejected.
[297C D]
|
minal Appeals 233 to 235 of 1966, and 9 to 11 of 1967.
Appeals from the judgment and order dated April 13, 1966 of the Madras High Court in Writ Petitions Nos.
390 of 1965 etc.
933 M.C. Chagla, Amjad Nainar and R. Gopalakrishnan, for the appellant (in Cr.
Nos. 233 to 235 of 1966) and respondent No. 1 (in Cr.
Nos. 9 to 11 of 1967).
section Govind Swaminathan, Advocate General for the State of Tamil Nadu, A. V. Rangam, K. section Ramaswami Thevar, N. section Sivan, for the respondents (in Cr.
Nos. 233 to 235 of 1966) and the appellants (in Cr.
Nos. 9 to 11 of 1967).
The Judgment of the Court was delivered by Mitter, J.
These six appeals arise out of certificates granted by the High Court of Madras arising out of two Writ Petitions and a petition under sections 435 and 439 of the Code of Criminal Procedure filed in that court by P. Sirajuddin, the appellant in the first set of appeals.
It is not necessary to give an outline of these Petitions as the salient features thereof appear sufficiently from the judgment of the High Court and the substance thereof is dealt with hereafter.
The facts are as follows.
The appellant was the Chief Engineer, Highways and Rural Works, Madras having risen from the status of a District Board Engineer in which capacity he joined service in the year 1935.
He attained the age of 55 years on March 14, 1964 on which date he was asked to hand over charge of his office to one Shiv Shankar Mudaliar, Superintending Engineer, Madras.
He expected to be retained in service up to the age of 58, a privilege said to be normally accorded to persons physically and otherwise fit for public service.
It appears that on March 1, 1964 a copy of a petition concerning him and dated February 28, 1964 addressed to the Minister, Public Works by one Rangaswami Nadar was received by the Chief Minister of the State.
It is said that apart therefrom allegations about want of rectitude of the appellant had already reached the Government.
The Chief Minister asked the Director of Vigilance and Anti Corruption to make confidential enquiries.
On March 10, 1964 Government received a note from the said officer which cast serious aspersions on the appellant 's reputation and mentioned quite a few instances of his lack of probity.
The endorsement of the Chief Minister on the note read: Secretary, P.W.D.
I had this (petition already mentioned) from the Director of Vigilance.
This may be immediately looked into.
I have asked the Director to pursue the investigation further.
" Thereupon the Chief Secretary orally ordered a full fledged enquiry in the matter and the Deputy Superintendent of Police, Vigilance and Anti Corruption one G. _K. Ranganathan, was asked to make a personal enquiry and report under the supervision of 93 4 R. N. Krishnaswamy.
The Director of Vigilance registered an enquiry numbering 8/HD/64 on 15th April, 1964.
That the enquiry was taken up with great keenness appears from a note of Ranganathan to the effect he would require the assistance of two Inspectors to assist him.
There can be no doubt that the enquiry launched by the Vigilance and Anti Corruption Department was a very thorough and searching one.
A very large number of persons were examined by the Vigilance and Anti Corruption officers including 18 public servants who spoke to matters touching the allegations against the appellant.
Statements in writing signed by the makers were taken from no less than nine public servants regarding the above and two of them, namely, section Sivasubrahmanyam and section Chidambaram were given certificates assuring them immunity from prosecution for the part played by them.
in rendering aid to the appellant in the commission of his malpractices.
These two persons occupied the position of an Assistant Engineer and a Junior Engineer and were subordinates of the appellant.
On June 27, 1964 a first information report was lodged in the Directorate of Vigilance and Anti Corruption, Madras and the case recorded as 3/AC/64.
The offences to be investigated into were under sections 161 and 165 of the Indian Penal Code and section 5 (1) (a) and (d) of the Prevention of Corruption Act.
The complaint was made by Ranganathan, Deputy Superintendent of Police, Vigilance and Anti Corruption Department to the Additional Superintendent of Police in the same department.
It is pertinent to note that the Directorate of Vigilance and Anti Corruption which had been set up under a Government order dated 8th April 1964 was declared to be a 'police station ' under clause (s) of sub section (1) of section 4 of the Code of Criminal Procedure by a notification dated May 25.
1964 and by another notification of the same date the Governor of Madras conferred upon the Director and the Superintendents of Police of the said Directorate all the ordinary powers of a Magistrate of the First Class under section 5 A of the Prevention of Corruption Act within the limits of the whole of .he
State of Madras except the Presidency Town.
The complaint by Ranganathan to the Additional Superintendent of Police, Vigilance and Anti Corruption, gave details of various malpractices with which the appellant was charged.
He was inter alia said to have obtained various articles of furniture with the help of Sivasubrahmanyam and Chidambaram mentioned above by paying only a small fraction of the cost and asking them to adjust the balance by manipulations of the muster rolls claims.
He was also said to have got his residence whitewashed in a similar manner.
It was also alleged against him that he had constructed a bungalow by diverting building materials allotted for the construction of 'the Cauveri bridge at Tiruchinapalli.
The complaint wound up with a paragraph to the effect that a criminal case would be registered against him as a regular investigation alone would facilitate the collection 9 3 5 of additional evidence by way of recovery of valuable things which he had obtained from his subordinates by various illegal means and in addition more incriminating evidence was likely to be ,forthcoming during the investigation.
Sanction to prosecute the appellant was obtained on September 27, 1964 and a charge sheet was filed against the appellant in the court of the Special Judge, Madras on October 5, 1964 numbered as C.C. No. 10 of 1964.
No less than 47 witnesses had been examined during the investigation following the first information report and at least nine of them had been previously examined at what was termed as a "preliminary or detailed enquiry".
No less than 19 malpractices were alleged against him in different paragraphs of the charge sheet and the appellant was charged with having obtained for himself or for members of his family various valuable things from his subordinates by corrupt and illegal means and by abusing his position as a public servant.
charges were for offences already mentioned.
In the enquiry the appellant was supplied with copies of re cords on which the prosecution proposed to rely including the statements recorded by the investigating officer which according 'IO the appellant showed prima facie that a number of public servants who had given the statements were themselves responsible for commission of various offences including falsification of accounts and forgery of public records.
Before the Special Judge the appellant moved an application for discharge under section 251 A of the Code of Criminal Procedure on the ground that the charges against him were groundless.
In that application he also complained : (a) that the instances alleged against him related mostly to his personal matters unconnected with his official functions; (b) that none of the items referred to in the charge had been handed over to or delivered to him for the purpose of securing an advantage in order to attract section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, and (c) that on the admitted statements of the public servants they were liable to be charged with various offences and he had been greatly prejudiced by discriminatory treatment.
While holding that there was no basis of charging thee appellant under section 165 I.P.C. or under section 5(2) read with section 5(1)(b) of the Prevention of Corruption Act, the Judge held that a charge could be framed against him under section 5(2) read with section 5(1)(d) of the Act.
He observed that the "investigating officers evidently felt that ,if they arraigned the subordinate officers along with the appellant the case may fail for lack of evidence.
" 9 3 6 Against that order dated January 16, 1965 the Public Pro secutor Preferred Cr.
R.C. 294 of 1965 and the appellant preferred Cr.
M.P. 934 of 1965 under section 561 A of the Code, for quashing the proceedings and discharging him as the charge was groundless.
The appellant filed.
two writ petitions before the High Court, namely, one for a writ of mandamus directing the forbearing from prosecution of C.C. No. 10 of 1964 and a second for a writ of certicrari to quash the order of the Special Judge mentioned above.
There was a petition under sections 435/439 of the Criminal Procedure Code for revision of the order of the Special Judge and one under section 561 A of the Code for quashing his said order.
The High Court dealt with all the Writ Petitions and the different allied matters together.
Broadly speaking, it was urged before the High Court: 1.There had been such a violent departure from the provisions of the Code in the matter of investigation and cognizance of offences as to amount to denial of justice and to call for interference by the issue of prerogative writs.
The investigation and prosecution were wholly mala fide and had been set afoot by his immediate junior officer , one Sivasankar Mudaliar, Superintending Engineer, Madras who was related to the Chief Minister of the State.
The appellant 's case was being discriminated from those of others who though equally guilty according to the prosecution case were not only not being proceeded against but were promised absolution from all evil consequences of their misdeeds because of their aid to the prosecution.
In his petition for the issue of a writ of mandamus 'by the High , Court the appellant stated that it was only by perusing copies of the statements furnished to him under section 173(4) Cr.
P.C. that he found that 18 public servants had stated having given him valuables without any or adequate consideration and that it was at his instance that they had committed offences of criminal conspiracy under section 120 B I.P.C. and criminal breach of trust of Government moneys under section 409 I.P.C. besides falsification of accounts etc.
His positive case was that the Director of Vigilance and Anti Corruption had obtained signed statements which were confessional and self incriminatory from persons who were going to be called .as witnesses by giving them assurances of immunity.
These assurances were not only directed towards immunising them from prosecutions but ;Also any departmental action likely to affect adversely the makers of the statements.
The case of discrimination was based mainly on the above averments that the Directorate had single him out leaving others who were equally guilty.
According 93 7 to the appellant this also showed mala fides and malice directed towards him.
Another main argument which ' was canvassed before the High Court related to the applicability of sections 162 and 163 of the Criminal Procedure Code and the effect of the violation thereof, if any.
For the appellant, it was argued that the taking of signed statements from persons who were eventually going to be examined in the criminal proceedings by giving them assurances of immunity and thereafter relying on their subsequent unsigned statements those under section 161(3) of the Code for the purpose of section 173 amounted to a fraud on the procedure established by law.
It was contended that as the statements recorded under section 161 were the material on which the Special Judge had to consider whether the charge was groundless under section 251 A of the Code, the illegality "corroding the foundation vitiated the enquiry and necessitated the discharge of the appellant.
" The High Court examined the case made out in the affidavits of the appellant and the counter affidavits on behalf of the State.
It expressed great dissatisfaction at the variance in the attitude of the State in the different affidavits in that whereas in the first counter affidavit there was no contradiction of the appellant 's averment that assurances of immunity had been given to all the 18 persons examined before the lodging of the first information report, the plea put forward in a subsequent affidavit was that such assurance had been given only to two persons, namely, the two subordinates of the appellant and only after signed statements had been given by them.
The Court was however not satisfied that a direction was called for for the prosecution of the subordinate officers also.
Further the High Court was not impressed with the plea of hostile discrimination against the appellant observing that although the "policy of not securing judicial pardon to accomplices by bringing them as approvers but retaining them at the sole discretion of the prosecution might be open to question" "that cannot by itself invalidate the arraignment of the persons actually put up for trial" specially where the person charged was in a position to wield influence and power over those asked by him to aid him in commission of misconduct.
Although not of the view that the record before it established a case of mala fide or hostile discrimination against the appellant which called for the quashing of the proceedings, the High Court took the view that the investigation of the case under Chapter XIV of the Code should be held to have commenced when Ranganathan, the Deputy Superintendent of Police, started the enquiry on 15th April 1964 on the reasoning that though "an enquiry may start with shadowy beginnings and vague rumours, once a police officer forms a definite opinion that there are grounds for investigating a L1OSup.
CI(NP)70 15 938 crime, an investigation under the Code has started".
According to the High Court (a) "substantial information and evidence had been gathered before the so called first information report was registered".
(b) the police officer who had conducted the enquiry prior to 27th June 1964 was a person competent to enter upon investigation; (c) admittedly there had been an earlier probe by the, Vigilance Department prior to 10th March 1964 on the basis whereof he was not re employed; (d) there was definite information to the Government contained in the report dated 13th March 1964 relating to corrupt activities of the appellant; and (e) the "delay on the part of the investigating officer in registering the first information report may be an irregularity, but certainly the statements recorded subsequent to the receipt of definite information of the commission of an offence in gathering evidence of the offence would nonetheless be statements recorded during investigation and hit by section 162 of the Criminal Procedure Code.
" With regard to the disregard of the provisions of sections 162 and 163 of the Code, the High Court observed that the result of taking his signature to a statement would be to tie a witness down to the statement or at least to give him the impression that he would not be free to make a different statement at the trial but the statement of a witness at the trial would not become inadmissible by reason of his having signed a statement before going into the witness box.
Reference was made to several decisions bearing on section 162 of the Code and in particular to Zahiruddin vs King Emperor(1) that the evidence of a witness who had previously signed a statement in writing did not become inadmissible or vitiate the whole proceeding although the value of the evidence would be seriously impaired thereby.
The court seems to have been of the view that it was the duty of the Magistrate or the presiding Judge on discovering that a witness had while giving evidence, made material use of a statement given by him to the police to disregard the evidence of that witness as inadmissible.
The High Court 's definite conclusion was that there had been a deliberate violation of the provisions of the Code (1) 74 I.A. 65, 74.
939 and a departure from a recognised and lawful procedure, for investigation.
With regard to the propriety of taking self incriminatory statements even when there had been no assurance of immunity from prosecution, the High Court observed that as the learned Advocate General for the State had stated that the record of manipulations in the muster rolls by the subordinate officers of the appellant had to be disregarded as not proper material for consideration as the "Special Judge had not considered these vitiating features in regard to the documents placed before him while ordering the framing of charges against the appellant" it was unnecessary to examine the question at length.
The High Court found partly in favour of the appellant and held that the order of the Special Judge directing the framing of a charge on consideration of the statements before him under section 173(4) of the Code without reference to the illegalities in the investigation should be quashed.
The High Court further directed the Special Judge to take up the matter once again and consider the case excluding from consideration all statements recorded under sections 161(3) and 164 which were found vitiated in the light of the observations made by it.
A direction was also given to exclude portions of the statements which were self incriminatory and confessional in character of the maker even if the same did not otherwise violate the provisions of sections 162 and 163 of the Code.
In our view the procedure adopted against the appellant be fore the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one 's sense of justice and fairplay.
No doubt when allegations about dishonesty of a person of the appellant 's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter.
The Chief Minister in our view pursued the right course.
The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister.
The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view.
Before a public servant, whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer.
The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable 940 harm not only to the officer in particular but to the department he belonged to, in general.
If the, Government had set up a Vigilance and Anti Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner.
the enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction.
The means adopted no less than the end to be achieved must be impeccable.
In ordinary depart mental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved.
It is only thereafter that a charged sheet is submitted and a full scale enquiry is launched.
When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evi dence of guilt of the officer.
Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.
The Code of Criminal Procedure is an enactment designed inter alia to ensure a fair investigation 'of the allegations against a person charged with criminal misconduct.
Chapter XIV of the Code gives special powers to the police to investigate into cases whether cognizable or non cognizable in the manner provided therein.
Section 160 empowers a police officer making an investigation to require the attendance before himself of any person who appears to be acquainted with the circumstances of the case.
Section 161 (1 ) gives him the right to examine orally any person supposed to be acquainted with the facts and circumstances of the case.
Although bound to answer question put to him sub section
(2) of the section exempts a person from answering any question which would have a tendency to expose him to a penal charge or to a penalty for forfeiture.
Under sub s.(3) the police officer is empowered to reduce into writing any statement made to him in the course of such examination.
Section 162(1) expressly lays down that such a statement made in the course of an investigation if reduced into writing is not to be signed by the maker thereof and no part of such statement except as expressly provided is to be used 941 for any purpose at any enquiry or trial in respect of any, such offence under investigation at the time when the statement was made.
The only exceptions to these are cases when the statement falls under section 32 cl.(1) of the Evidence Act and to statements which are covered by section 27 of that Act.
The obvious idea behind this provision is that an over zealous police officer may not misuse his position by getting a statement in writing signed by the maker which would tend to pin him down to the statement but leave him free to speak out freely when called to give evidence in court.
In order that statements made in the course of such investigations be recorded without any pressure or inducement by an investigating officer section, 163(1) lays down an embargo on the investigating authorities using any inducement, threat or promise to the maker which might influence his mind and lead him to suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as disclosed in the proceedings.
It is to be noted that whereas the other sections hereinbefore referred to contain guidelines for the police officers in making investigation, this section expressly provides that any person in authority even if he is not a police officer must guide himself accordingly, in case where a crime is.
being investigated under this Chapter of the Code.
All this is however subject to the provisions of sub s.(2) which allows a person to make any statement against his own interest by way of confession if he does so of his own free will.
Even then the law enjoins by section 164 that such a statement or con fession can only be recorded by a Magistrate of the Class mentioned therein and even such a Magistrate must explain to the person making the confession before recording the same, that he is not bound to make it and if he does so it may be used as evidence against him.
Further the Magistrate must make sure that the person was making the confession voluntarily and not acting under any pressure from an outside source.
All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case : however serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the 'crime before the lodging of a charge sheet.
Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it.
Section 169 of the Code empowers a notice officer making investigation to release an accused person from custody if there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of him to a Magistrate by taking a bond from him with or without sureties, Section 173 enjoins upon a police officer 942 to complete the investigation without unnecessary delay a IInd forward to a Magistrate empowered to take cognizance of the offence a report in the form prescribed by Government setting forth inter alia the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and to communicate to the State Government the action taken by him to the person, if any, by whom information relating to the commission of the offence was first given.
When a report has been made under this section it is the duty of the officer in charge of the police station to furnish to the accused before the commencement of the enquiry or trial a copy of the report above mentioned and of the first information report under section 154 and of all other documents or relevant extracts on which the prosecution proposes to rely including the statements and confessions, if any, recorded under section 164 and the statements recorded under sub s.(3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses.
In our view the enquiring officer pursued the investigation with such zeal and vigour that he even enquired into and took down statements of persons who were supposed to have provided the appellant with articles of food worth trifling sums of money long before the launching of the enquiry.
The whole course of investigation as disclosed in the affidavits is suggestive of some predetermination of the guilt of the appellant.
The enquiring Officer was a high ranking police officer ' and it is surprising that simply because he was technically not exercising powers under Chapter XIV of the Criminal Procedure Code in that a formal first information report had not been lodged he overlooked or deliberately overstepped the limits of investigation contained in the said Chapter.
He recorded self incriminating ' statements of a number of persons and not only secured their signatures thereto obviously with the idea of pinning them down to those but went to the length of providing certificates of immunity to at least two of them from the evil effects of their own misdeeds as recorded.
It was said that the certificates were given after the statements had been signed.
It is difficult to believe that the statements could have been made before the grant of oral assurances regarding the issue of written certificates.
There can be very little doubt that the persons who were given such immunity had made the statements incriminating themselves and the appellant under inducement, threat or promise as mentioned in section 24 of the Indian Evidence Act.
It is no doubt the duty of the State to track down and punish all delinquent officers but it is certainly not in accordance with justice and fairplay that their conviction should be sought for by such questionable means.
943 The office of the Directorate of Vigilance and Anti Corrup tion Department, Madras became a police station for the purpose of the Criminal Procedure Code under sub cl.
(s) of sub section
(1) of section 4 of the Code by a notification dated 25th May, 1.964.
Prior to that it was only functioning under a Memorandum No. 1356/ 64 2 dated 8th April 1964 when it was set up to ensure the maintenance of the highest standard of integrity and probity in public servants.
If the investigation had been taken up after May 25, 1964 it would have been one under Chapter XIV of the Code without any doubt.
Although we are not disposed to concur with the view that the investigation under Chapter XIV of the Code started as early as 15th April 1964 we are of opinion that there was no warrant for the Vigilance and Anti Corruption Department which was in the charge of one of the highest police officers of the State to disregard the provisions of sections 162 and 163 of the Code of Criminal Procedure.
The investigation was of a type more I thorough and elaborate than is usually 'to be found : as noticed already it was in charge of a senior police officer who had the I assistance of two police inspectors in the matter.
No blame attaches to them for making enquiries of a large number of persons but the whole course of investigation is suggestive of guidance by someone who was intimately familiar with the affairs of the appellant and his department 'and throwing out scents which the investigating officers were only too keen to pick up and follow.
The appellant may have been guilty of all the charges levelled against him but we cannot approve of the manner in which the investigation against him was conducted and an attempt made to lay a guideline for the persons who were to be cited as prosecution witnesses in their evidence at the trial.
To say the least it would be surprising to find so many persons giving confessional and self incriminatory statements unless they had been assured of immunity from the evil effects thereof whether oral or in writing.
There can be no excuse for the Directorate of Vigilance and Anti Corruption for proceeding in the manner adopted in the Preliminary enquiry before the lodging of the first information report.
As soon as it became clear to them and according to the High Court it was before March 13, 1964 in which we concur that the appellant appeared to be guilty of serious misconduct.
it was their duty to lodge such a report and proceed further in the investigation according to Chapter XIV of the Code.
Their omission to do so cannot but Prejudice the appellant and the State ought not to be allowed to take shelter behind the, plea that although the steps taken in the preliminary enquiry were grossly irregular and unfair, the accused cannot complain because there was no infraction of the rules of the 'Evidence Act or the provisions of the Code, 944 In our view the granting of amnesty to two persons who are sure to be examined as witnesses for the prosecution was highly irregular and unfortunate.
It was rightly pointed out by the High Court "Neither the Criminal Procedure Code nor the Prevention of Corruption Act recognises the immunity from prosecution given under these assurances and that the grant of pardon was not in the discretion of police authorities.
" We are not impressed by the argument that the appellant was singled out from a number of persons who had aided the appellant in the commission of various acts of misconduct and that they were really in the position of accomplices.
It was pointed out by the High Court that the prosecution may have felt that "if the subordinate officers were joined along with the appellant as accused the whole case may fall for lack of evidence".
In our view, if it be a fact that it was the appellant who was the head of the department actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that unless the subordinates were also joined as co accused with him the case should not be allowed to proceed.
It was contended before us by the learned Advocate General for the State of Madras that both the High Court and the Special Judge had gone wrong in the interpretation of s.5(1)(b) of the Prevention of Corruption Act.
Having heard counsel on both sides, we find ourselves unable to sustain the view of the High Court on this point.
Omitting the portions of the section which are not relevant it reads : "5(1) A public servant is said to commit the offence of criminal misconduct (a) . . (b) if he habitually accepts or obtains. for himself . any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person (whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him,or) having any connection with the official functions of himself, or The portion of the sub section within brackets in our view qualifies,, 94 5 the expression "any person" in the same way as the portion reading "having any connection with the official function of himself".
So read ,,any person having any connection with the official functions of himself" would include any subordinate of the person who accepts the valuable thing.
The words "of himself" do not refer to the person in the expression "any person" but refers to the pronoun "he" at the beginning of the sub section.
A subordinate of the public servant would have connection with his official fun ctions.
In our view the sub section aims at folding within its ambit not only outsiders "who are likely to be concerned in any proceeding or business transacted or about to be transacted" by the public officer but also any subordinate or any other person who is connected with the official functions of the public servant.
In the result all the appeals are dismissed.
Although we do not endorse the view of the High Court with regard to the date of the commencement of the investigation so far as Chapter XIV of the Code of Criminal Procedure is concerned, we do hold that serious irregularities were committed in the so called "full fledged enquiry" to the prejudice of the appellant.
We do not however feel that there is any need to modify the directions given by the High Court to the Special Judge who will follow the directions of the High Court in addition to the modification indicated by us.
V.P.S. Appeal 's dismissed.
| On March 1, 1964, the Chief Minister of the State received a petition containing allegations of corruption against the appellant (a Superintending Engineer) and the Chief Minister asked the Director of Vigilance and Anti Corruption to make enquiries.
On March 10, 1964, the Director submitted a note containing serious aspersions on the appellant and the Chief Minister ordered further investigation.
The Director of Vigilance registered an inquiry on 15th April, 1964, and a Deputy Superintendent of Police of the Vigilance Department was asked to make the inquiry.
The Deputy Superintendent of Police made a thorough and searching inquiry.
He examined a large number of persons including 18 public servants and even enquired into and took down statements of persons who were supposed to have provided the appellant with articles of food worth trifling sums of money, a long time before.
He recorded self incriminating statements of a number of persons and secured their signatures thereto.
With respect to two officers, who were the subordinates of the appellant, he even gave certificates of immunity from any action that might be taken against them for the part played by them in aiding the appellant.
On June 27, 1964, he lodged a first information report, with respect to offences under sections 161 and 165 I.P.C., and section 5(1)(a) and (d) of the Prevention of Corruption Act, 1947.
He investigated into the offences there after, and filed the charge sheet before the Special Judge.
The appellant made an application for discharge under section 251 A, Cr.
P.C., on the grounds of discrimination between him and other officers who were given pardon and, gross irregularities in the investigation.
The Special Judge held, that though there was no basis for charging the appellant under section 165, I.P.C., or under section 5(2), read with section 5(1)(b).
of the Prevention of Corruption Act, a charge could be framed against him under section 5(2) read with section 5(1)(d).
The appellant thereafter moved the High Court, The High Court held : (1) that the investigation started on 15th April 1964 when the Director of Vigilance registered an inquiry (2) that the taking of signed and self incriminating statements from various witnesses was in violation of sections 161 to 164 Cr.
P.C.; (3) that the Special Judge erred in directing the framing of the charge without excluding those statements from consideration; and (4) that the Special Judge should take up the matter once again after excluding from consideration those statements.
In appeal to this Court, HELD : (1) Though technically investigation did not commence on 15th April 1964 but started only after the formal first information report was lodged on,.
June 27, 1964, there were serious irregularities during the 93 2 inquiry and investigation which caused prejudice to the appellant.
The directions given by the High Court were, however, sufficient in the circumstances of the case.
[945 D] The Directorate of Vigilance and Anti Corruption became a police station for the purposes of the Criminal Procedure Code only by a notification dated 25th May 1964.
Therefore, the inquiry before that date was not an investigation under Ch.
XIV of the Code, but there was no warrant for the Vigilance Department, which was in the charge of a senior police officer, to disregard the provisions of sections 162 and 163 of the Code.
Under s.161(3) of the Code a police officer is empowered to reduce into writing any statement made to him in the course of investigation and section 162(1) lays down that such a statement is not to be signed by the maker thereof.
Section 163(1) lays an embargo on the investigating authority using any inducement, threat or promise to the maker.
The reason for these provisions is to secure a fair investigation into the facts and circumstances of the case and to see that an of calous police officer may not misuse his position by getting a statement signed by the maker in order to pin him down to it.
Also, immunity from prosecution and the grant of a pardon were not in the discretion of police authorities.
1940 A H; 941 A B, D, F] In the present case.
the officers who were given immunity must have made the self incriminating statements because an oral assurance of immunity was given before they made the statements, that is, the statements were given as a result of an inducement.
There can be no excuse for the Vigilance Department for proceeding in the manner adopted merely because the first information ',report had not been lodged.
As soon as it became clear to them on March 10, 1964, that the appellant appeared to be guilty of serious misconduct, it was their duty to lodge such a report and,proceed further in the investigation according to Ch.
XIV of the Code.
Their omission to do so cannot but prejudice the appellant and the State ought not to be allowed to take shelter behind the plea that although the, steps taken in the enquiry before the first information was lodged were.
grossly irregular and unfair, the appellant could not complain, because.
there was no infraction of the rules after lodging the first information report.
[942 D G; 943 C H] (2) If it be a fact that it was the appellant, who as the head of the department, was actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that the subordinates should also be joined as co accused with him.
[944D] (3) Under section 5 (1) (b), a public servant would be guilty of the offence of criminal misconduct if he habitually accepts any valuable thing for inadequate consideration not only from outsiders who are likely to be concerned in any proceeding or business, transacted or about to be transacted by the public officer but also from any subordinate or any other person who is connected with the official functions of the public servant.
Therefore, in this case, a charge could also be framed under section 5(1)(b), if there was material.
[945 A C]
|
Petition (Criminal) No. 222 of 1989 etc.
(Under Article 32 of the Constitution of India).
Kapil Sibal, Arvind K. Nigam and Ms. Kamini Jaiswal for the Petitioners.
V.C. Mahajan, Subba Rao and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
Elaborate submissions have been made by the learned Counsel for both the parties and, accordingly, we proceed to dispose of the case on its merit after granting special leave.
This appeal is directed against the judgment of the High Court of Punjab & Haryana, dismissing the writ petition filed by three detenu including one Madan Lal Anand, the husband of the appellant, challenging the validity of the orders of detention, all dated September 30, 1988, passed by the Joint Secretary to the Government of India, the detain ing authority, under section 3(1) of the , hereinafter referred to as the 'COFEPOSA Act '.
So far as the detenu Madan Lal Anand is concerned, the order of detention was passed 'with a view to preventing the detenu from abetting the smuggling of goods and dealing is smuggled goods otherwise than by engaging in transporting or conceal ing or keeping smuggled goods '.
The order of detention along with the grounds of such detention was served on the detenu on October 18, 1988 and a declaration under section 9 of the COFEPOSA Act was made on November 2, 1988 and served on him on November 3, 1988.
The grounds of detention that were served on the detenu run into several pages.
It is not necessary to reproduce all the grounds, but we may state only the relevant allegations against the detenu as made in the grounds of detention.
737 It is alleged that information was received that polyes ter filament yarn and polyester fibre imported in the name of M/s. Jasmine, B 3/7, Vasant Vihar, New Delhi, and M/s Expo International, C 224, Defence Colony, New Delhi, under the Duty Exemption Entitlement Certificate Scheme (DEEC Scheme).
were being disposed of in the local market without fulfilling export obligations in contravention of the provi sions of the Notification No. 117/CUS/78 dated 9.6.1978 (as amended) and the conditions of Advance Import Trade Control Licences.
M/s. Jasmine obtained five "Actual User" advance li cences in the financial year 1984 85 from the Joint Chief Controller of Imports & Exports, New Delhi, for the import of polyester filament yarn and polyester fibre free of customs duty under the DEEC Scheme.
Under this Scheme, M/s. Jasmine were granted the said licences subject to the condi tions, inter alia, that they would manufacture readymade garments (resultant products) out of the imported polyester filament yarn and polyester spun yarn and export the result ant products abroad within a period of six months from the date of the first clearance of the imported consignment in terms of the conditions of the advance licences and the conditions of the said Notification dated 9.6.1978.
By virtue of the other advance licences, excepting the fifth licence dated 9.1.
1985, the said M/s. Jasmine import ed the polyester filament yarn without payment of import duty amounting to more than Rs. 3 crores.
It is the case of the detaining authority that in respect of the imported yarn M/s. Jasmine have not fulfilled their export obligation in respect of the polyester filament yarn got cleared by them against the above licences thereby violating the provisions of the said Notification dated 9.6.1978 and the conditions of the advance licences and, consequently, the provision of section 111(0) of the .
In the applications made to the Joint Chief Controller of Imports & Exports, New Delhi, for the grant of advance licences, one Naresh Chadha and Madan Lal Chadha were de clared as the Partners of M/s. Jasmine and the address of their factory premises was declared as Khasra No. 694/205, Village Lado Sarai, New Delhi, which on investigation was found to cover the whole village of Lado Sarai.
During the last quarter of 1985 M/s. Jasmine shifted their factory premises to 374, Ram Darbar, Industrial Area, Phase II, Chandigarh.
On enquiry, it came to light that M/s. Jasmine did not manufacture any ready made garments in the said premises.
The raw material imported by the firm 738 was never brought to either of the said two premises for the purposes of manufacture.
They had no intention to manufac ture or export the goods, as there was neither any machinery at the so called factory premises nor power connection.
M/s. Expo International also obtained five "Actual User" advance licences in the financial year 1984 85 from the Joint Chief Controller of Imports & Exports, New Delhi, for the import of polyester filament yarn and polyester fiber, free of customs duty, under the DEEC Scheme.
They were also required to manufacture the resultant products out of the imported polyester filament yarn and polyester fiber and to export out of India resultant products within a period of six months from the date of clearance of the first consign ment of raw material in terms of the conditions of the ad vance licences and the provision of the said Notification dated 9.6.1978.
M/s. Expo International also imported polyester filament yarn under three advance licences without payment of customs import duty amounting to Rs.49.29 lakhs against the first licence dated 29.5.
1984 and Rs.1.17 crores against the second and third licences dated 3.8.
1984 and 11.9.1984, but did not clear the imported material.
The other two licences were not utilised by them.
In ground No. 15, it has been stated that investigations conducted by the Customs and Central Excise Staff, Chandi garh, have revealed that both the said firms have not ful filled their export obligations so far in terms of the advance licences granted to them and also in terms of the provisions of the said Notification dated 9.6.1978 (as amended) issued under section 125 of the .
Inves tigations have also revealed that both the firms have sold the polyester filament yarn cleared by them without payment of duty in contravention of the provisions of the above Notification and conditions of the advance licences.
It is the case of the detaining authority in the grounds of detention and the counter affidavit filed on behalf of the respondents that the said firms, namely, M/s. Jasmine and M/s. Expo International are benami firms of the detenu including the detenu Madan Lal Anand.
Although the said Naresh Chadha and Krishan Lal Chawla are stated to be the Partners of M/s. Jasmine and the said Naresh Chadha to be the Proprietor of M/s. Expo International, they were ciphers and the detenu had been taking out the advance licences in the benami of the said two firms.
Further, the said two firms had no factory anywhere, 739 and that they had no intention to comply with the conditions of the licences, that is, to export the resultant products out of the imported material for which the advance licences were issued.
The detenu Madan Lal Anand was arrested on 21.6.1988 under section 104 of the for his involvement in the import, clearance and sale of polyester filament yarn and polyester fiber in the names of the above two firms and on his application he was released on bail.
Again, the Chief Judicial Magistrate, Chandigarh, granted bail to the detenu on 11.7.
1988 and adjourned the case sine die.
In paragraph 47 of the grounds of detention, it has been stated by the detaining authority that the detenu has played a very active and major role for obtaining advance licences in the names of the said firms, importing the polyester filament yarn and polyester fiber, getting the same cleared from Bombay Customs and also for selling it in the local market in India in violation of the conditions of the said Notification dated 9.6.1978 and also of the advance li cences.
The detenu has been abetting the smuggling of the goods and also has been dealing with smuggled goods other wise than by engaging in transporting or concealing or keeping smuggled goods.
The three detenu including Madan Lal Anand filed a writ petition in the High Court of Punjab & Haryana praying for the issuance of a writ of habeas corpus and challenging the validity of the order of detention on a number of grounds.
The High Court by an elaborate judgment overruled all the contentions made on behalf of the detenu and upheld the order of detention and dismissed the writ petition.
Hence this appeal by special leave.
It has been already noticed that one of the conditions of the advance licences issued to the said firms was that the importer would manufacture ready made garments out of the imported polyester filament yarn and polyester fiber and export the resultant products abroad within a period of six months from the date of first clearance of the imported consignments in terms of the conditions of the advance licences.
With reference to the said conditions in the licences, it is urged by Mr. Sibal, learned Counsel appear ing on behalf of the appellant, that there was no smuggling of goods or any abetment of the smuggling of goods as al leged in the order of detention.
In support of this conten tion, the learned Counsel has placed reliance upon the definition of "smuggling", as contained in section 2(e) of the COFEPOSA Act.
Section 2(e) provides that "smuggling" has the same meaning as in clause (39) of section 2 of the 740 and all its grammatical variations and cognate expressions shall be construed accordingly.
Section 2(39) of the defines "smuggling" in relation to any goods as meaning any act or omission which will render such goods liable to confiscation under section 111 or section 113 of the .
It is not disputed that the relevant provision is clause (0) of is section 111 which provides as follows: "111.
The following goods brought from a place outside India shall be liable to confiscation: (o) Any goods exempted, subject to any condi tion from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which a condition is not observed unless the non observance of the condition was sanctioned by the proper offi cer.
" In view of clause (0) of section 111, if any goods exempted from payment of duty is imported without observing the condition, subject to which the exemption has been made, it will be a case of smuggling within the meaning of section 2(e) of the COFEPOSA Act.
It is strenuously urged on behalf of the appellant that as an abeyance order was passed against M/s. Expo Interna tional on March 27, 1985 before the expiry of six months from the date of first clearance of the goods imported by it on December 6, 1984, the said firm was prevented from com plying with the condition of the advance licence, namely, that the ready made garments were to be manufactured out of the imported polyester filament yarn and polyester fiber and the resultant products were to be exported abroad within a period of six months from the date of the first clearance.
It is submitted on behalf of the appellant that as the detenu was prevented from complying with the condition of the advance licence within six months of the first clearance by the issuance of an abeyance order by the Dy.
Chief Con troller of Imports & ' Exports, the provision of section 111(0) of the was not violated, for the goods could not be confiscated and, accordingly, there was no question of smuggling within the meaning of section 2(e) of the COFEPOSA Act read with section 2(39) of the .
It is urged that the detaining authority should have taken into consideration the above fact and should not have passed the impugned order of detention.
Attractive though the contention is, we regret we are unable to 741 accept the same.
It is true that before the expiry of six months from the date of the first clearance of the imported goods, an abeyance order was passed against M/s. Expo Inter national.
The question is whether by such abeyance order the said firm or the detenu was prevented from manufacturing the ready made garments and exporting the same within six months from the date of.
the first clearance.
In the grounds of detention, it has been clearly stated with all relevant particulars that the said two firms had really no existence and they did not have any factory whatsoever or any manufac turing device for the purpose of manufacturing ready made garments.
It is apparent from the grounds of detention and the counter affidavit filed on behalf of the respondents that with a view to procuring the licences for the purpose of importation of the goods without payment of any duty and for selling the same in the market, the said firms were created and/or set up by the detenu including the detenu Madan Lal Anand.
In these circumstances, no exception can be taken to the passing of the abeyance order against M/s. Expo International and, as it was more than certain that the imported goods would not and could not be utilised in ac cordance with the condition of the advance licence, the provision of section 111(0) of the was violated on the very importation of the goods.
There is, therefore, no substance in the contention made on behalf of the appel lant that there was no smuggling in this case and, as such, the order of detention was not at all justified.
The conten tion is rejected.
Next it is urged on behalf of the detenu that certain documents/ orders relating to the firm M/s. Expo Interna tional, which could influence the subjective satisfaction of the detaining authority in favour of the detenu, were not placed before him at the time he passed the order of deten tion.
The said documents/orders are as follows: (1) Abeyance Order No. 120/84 85/II dated the 27th March, 1985 issued by the Dy Chief Controller of Imports & Exports to M/s. Expo International under clause 8D of the Imports Control Order, 1955 as amended, placing the firm under abeyance for a period of six months w.e.f.
the date of the issue of the order (Annexure E to Cr.
Writ 545/88) . (2) Order dated the 29th March, 1985 issued by the office of the Chief Controller of Imports & Exports, New Delhi, to M/s. Expo Interna tional suspending the operation of the said five advance import licences granted to them (Annexure G to Cr.
Writ 545/88).
742 (3) Show cause notice dated the 26th December, 1985 issued by the office of the Chief Con troller of Imports & Exports to M/s. Expo International under section 4 L for action under section 4 I of the Imports and Exports (Control) Act, 1947 as amended, and under clause 8 of the Imports (Control) Order, 1985 (as amended) Annexure II to Cr.
Writ 545/88).
(4) Show cause notice dated the 27th March, 1985 issued by the office of the Chief Con troller of Imports & Exports to M/s. Expo International under clause 10 for action under clause 9(1)(a) & (d) of the IMPORTS (Control) Order, 1955 as amended as to why the five import licences should not be cancelled and rendered ineffective (Annexure F to Cr.
Writ 545/88).
Even assuming that the above documents/orders were not placed before the detaining authority, we fail to understand how the same could have influenced the subjective satisfac tion of the detaining authority in favour of the detenu.
As has been discussed above, the abeyance order was passed on the detenu when the authorities concerned found that the above two firms had no factories and, therefore, there was no question of their manufacturing ready made garments from the imported material and exporting them within a period of six months from the date of first clearance in accordance with the conditions under the advance licences.
The show cause notices issued to the said firm, M/s. Expo Interna tional, also would reveal that the detenu had failed to comply with the condition of the licences and, indeed, there was no chance of the conditions being complied with inasmuch as there was no manufacturing devices of the said firms.
We are of the view that even if the documents/orders had not been placed before the detaining authority that could not, in the least, affect the subjective satisfaction of the detaining authority.
At this stage, we may state a few more facts.
M/s. Expo International filed a civil revision petition, being C.R. No. 306 of 1986, under Article 227 of the Constitution of India in the Punjab & Haryana High Court through its alleged Proprietor, Naresh Chadha.
In this petition, M/s. Expo International prayed for the quashing of the show cause notices dated December 26, 1985 referred to above.
Another civil revision petition, being C.R. No. 3694 of 1985, was filed by M/s. Jasmine through its alleged Partner, Krishan Lal Chawla, inter alia, praying for release of certain documents to the said firm so as to 743 enable it to have its goods released from the Bombay Port.
It is significant to notice that in C.R. No. 306 of 1986, copies of all the said show cause notices dated December 26, 1985 and a copy of the said abeyance order dated December 27, 1985 were annexed.
Further, in C.R. No. 3694 of 1985 three miscellaneous applications were filed, namely, C.M. Applications Nos. 3199, 3498 and 3702 of 1988.
These appli cations have been mentioned in paragraphs 41, 42 and 43 of the grounds of detention.
Again, in paragraph 28 of the grounds of detention the said C.R. No. 306 of 1986 has been referred to as follows: "As per Civil Revision No. 306 of 1986 filed in the Punjab & Haryana High Court at Chandi garh, the factory premises were shifted some where in Mohali, but specific address of the factory was not declared either to the Joint Chief Controller of Imports & Exports, New Delhi, or to any other department.
" It is apparent from the facts stated above that the detaining authority had before him the petitions numbered as C.R. No. 306 of 1986 and C.R. No. 3694 of 1985, for he had referred to these civil revision petitions in the paragraphs mentioned above.
The grievance of the detenu that the said abeyance order and the show cause notices were not placed before the detaining authority has no factual foundation whatsoever inasmuch as the copies of the same were annexed to the petition in C.R. No. 3694 of 1985.
Another complaint has been made by the detenu that while the detaining authority had referred to the said C.R. No. 306 of 1986 and C.R. No. 3694 of 1985, he should have for warded copies of the said civil revision petitions to the detenu so that he could make an effective representation against the order of detention.
So far as C.R. No. 306 of 1986 is concerned, it has been already noticed in what context the same was referred to in paragraph 28 of the grounds of detention.
In C.R. No. 3694 of 1985, three civil miscellaneous applications were filed and the detaining authority had forwarded to the detenu copies of all the said three civil miscellaneous applications.
But, he did not forward to the detenu a copy of the civil revision petition.
The learned Counsel for the appellant has placed much reliance on a decision of the Delhi High Court in Kirpal Mohan Virmani vs Tarum Roy and others, In that case, the Delhi High Court has taken the view that the copies of important documents and circumstances which have a material bearing or could have 744 influenced the subjective satisfaction of the detaining authority should be supplied to the detenu.
It has been observed that if such documents are not supplied to the detenu, the detaining authority will then base his subjec tive satisfaction to detain a person without the help of the material documents even though to some extent or to a large extent the same go in favour of that person and that, ac cordingly, such a situation cannot be allowed to exist nor the liberty of an individual can be put to peril at the whims of the detaining authority.
In taking that view, the Delhi High Court also noticed the following observation made by this Court in Vakil Singh vs State of Jammu & Kashmir and another, " 'Grounds ' within the contemplation of Section 8(1) means materials on which the order of detention is primarily based.
Apart from the conclusions of facts 'grounds ' have a factual constituent also.
They must contain the pith and substance of primary facts but not subsid iary facts or evidential details.
" Although the Delhi High Court has referred to the above observation of this Court, it has not considered the effect of such observation.
The above observation lends support to the contention made on behalf of the respondents that only copies of documents on which the order of detention is primarily based should be supplied to the detenu and not any and every document.
We must not, however, be understood to say that the detaining authority will not consider any other document.
All that has to be shown is that any document which has bearing on the subjective satisfaction of the detaining authority but not relied upon by him was before the detaining authority at the time he passed the order of detention.
In the instant case, the detaining authority had placed reliance upon three civil miscellaneous applications filed in the said C.R. No. 3694 of 1985 and supplied to the detenu copies of the said three civil miscellaneous applications.
We do not find any substance in the contention made on behalf of the detenu that a copy of the civil revision petition should have also been supplied to him.
The decision of this Court in Kirti Kumar Chaman Lal Kundaliya vs Union of India, does not, in our opinion, help the contention of the detenu.
In the instant case, really the three civil miscellaneous applications have been re ferred to in the grounds of detention and not the civil revision petition, mentioning of which is necessary in order to identify the civil miscellaneous applications.
745 As regards C.R. No. 306 of 1986, the detaining authority has in paragraph 28 of the grounds of detention referred to the shifting of the factory premises by M/s. Expo Interna tional somewhere in Mohali, but no specific address of the factory was declared by the firm either to the Joint Chief Controller of Imports & Exports or to any other authority.
Mentioning of that fact in the grounds of detention does not, in our opinion, necessarily require the detaining authority to supply a copy of the civil revision petition in C.R. No. 306 of 1986.
At the same time, it has to be pre sumed that the petition in the said civil revision case was before the detaining authority and he had to go through it otherwise he could not mention in the grounds of detention the fact of the shifting of the factory premises without disclosing any specific address of the same.
In the circum stances, we are of the view that the detenu was not preju diced for the non supply to him of the copies of the docu ments mentioned 'above and, accordingly, there is no sub stance in the contention that there was non application of mind by the detaining authority.
The next contention of the detenu is that while the detaining authority had relied upon and referred to the confessional statement of the detenu as recorded by the Collector under section 108 of the , in the grounds of detention, the retraction made by the detenu was not placed before the detaining authority for his considera tion.
It is urged that if the retraction had been considered by the detaining authority, his subjective satisfaction could have been in favour of the detenu and against making an order of detention.
It is desirable that any retraction made should also be placed before the detaining authority.
But, that does not mean that if any such retraction is not placed before the detaining authority, the order of detention would become, invalid.
Indeed, this question came up for consideration before a Three Judge Bench of this Court in Prakash Chandra Mehta vs Commissioner and Secretary, Government of Kerala, ; In that case, a similar contention was made.
This Court in overruling the contention has re ferred to section 5 A of the COFEPOSA Act and has observed as follows: "Section 5 A stipulates that when the deten tion order 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 that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad.
" 746 In the instant case, even assuming that the ground relating to the confessional statement made by the detenu under section 108 of the was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds.
Therefore, even excluding the inadmissible ground, the order of detention can be justified.
The High Court has also overruled the contention of the detenu in this regard and, in our opinion, rightly.
In this Court, the counter affidavit that has been filed on behalf of the respondents had been affirmed by Shri Kuldip Singh, Under Secretary to the Government, and not by the detaining authority himself.
It is urged by Mr. Sibal, learned Counsel for the detenu, that the counter affidavit not having been sworn by the detaining authority himself, the averments made therein should not be taken notice of.
One of the averments made in the counter affidavit is, inter alia, as follows: "The said Revision Petition No. 306/86 does find mentioning in para 28 of the grounds of detention.
Therefore, the said C.R. along with the above said four documents which were part thereof, was before the detaining authority, though the same were not relied upon in the grounds of detention.
" The four documents referred to in the above statement are the said abeyance order and the show cause notices referred to hereinbefore.
It is submitted that the deponent of the affidavit not being the detaining authority was not competent to say that the said documents were not relied upon by the detaining authority.
It is true that the depo nent could not say whether the said documents were relied upon or not, but in the facts stated in the counter affida vit this part of the statement of the deponent, namely, that the said documents were not relied upon by the detaining authority, should be taken to be his submission.
There can be no doubt that a deponent who has no personal knowledge about any fact may, on the basis of some other facts, make his submissions to court.
We do not think that any impor tance should be attached to the said statement made by the deponent in the counter affidavit.
No personal allegation of mala fide or bias has been made by the 747 detenu against the detaining authority.
If such an allega tion had been made, in that case, the detaining authority should have himself sworn the counter affidavit either in this Court or in the High Court.
In P.L. Lakhanpal vs Union of India & Ors., , it has been observed by this Court that since no allegation of malice or dishonesty has been made in the petition personally against the Minis ter, it is not possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or nonapplication of mind.
That observation also applies to the instant case where no per sonal allegation has been made against the detaining author ity.
In Asgar Ali vs District Magistrate Burdwan and Others, , the District Magistrate of Burdwan, who passed the order of detention, did not file his affidavit and this Court observed as follows: "Although normally the affidavit of the person actually making the detention order should be filed in a petition for a writ of habeas corpus, the absence of such an affidavit would not necessarily be fatal for the case of the respondents.
It would indeed depend upon the nature of allegations made by the detenu in the petition for determing whether the absence of affidavit of the person making the deten tion order introduces a fatal infirmity.
In case an allegation is made that the officer making the detention order was actuated by some personal bias against the detenu in making the detention order, the affidavit of the person making the detention order would be essential for repelling that allegation.
Likewise, such an affidavit would have to be filed in case serious allegations are made in the petition showing that the order was mala fide or based upon some extraneous considera tions.
In the absence of any such allegation in the petition, the fact that the affidavit filed on behalf of the respondents is not that of the District Magistrate but that of the Deputy Secretary, Home (Special) Department of the Government of West Bengal would not by itself justify the quashing of the detention order.
" Again, in Suru Mallick vs State of West Bengal, , the affidavit was not filed by the detaining au thority and in spite of that this Court upheld the validity of the order of detention.
Thus, merely because the detaining authority has not sworn an 748 affidavit, it will not in all circumstances be fatal to the sustenance of the order of detention.
The contention in this regard is, therefore, unsound and is rejected.
The next ground of attach to the order of detention is the delay in considering the representation of the detenu.
It is not disputed that the representation of the detenu dated January 17, 1989 which was received by the Ministry of Finance, COFEPOSA Cell, New Delhi, on 18.1.1989 was rejected and the rejection memo was communicated to the detenu on 20.2.1989.
Prima facie it appears that there has been a long gap between the receipt of the representation, the consider ation thereof and the communication of the result of such consideration to the detenu.
In paragraph XXIV of the coun ter affidavit filed on behalf of the respondents, it has been stated as follows: "The representation dated 17.1.1989 was re ceived in COFEPOSA Unit of the Ministry on 18.1.1989 under cover of letter dated 17.1.1989 of Central Jail, Tihar.
The repre sentation was sent to CCE Chandigarh for comments on 19.1.1989.
Comments of Collector were received on 18.2.1989.
Under cover of Collector 's letter dated 9.2.1989.
The repre sentation along with comments were analysed by the Under Secretary and put up to the detain ing authority and JS on 13.2.1989.
11.2.1989 & 12.2.1989 were holidays.
The detaining author ity rejected the representation addressed to him on 13.2.
1989 and marked the file to MOS (R)/FM for consideration of representation addressed to Central Government.
MOS (R) rejected the representation subject to approv al by FM on 17.2.1989.
FM rejected the repre sentation on 17.2.1989.
The rejection memo was issued on 20.2.1989.
18.2.1989 and 19.2.1989 were holidays." At the hearing of this appeal, the learned Counsel for the respondents handed over to us a list of dates showing that a number of holidays intervened between one date and another and hence the apparent delay.
It appears that the Collector of Central Excise & Customs received the represen tation for his comments on 23.11.
1989 and handed over the same to the dealing officer for comments on 24.1.
1989 and the Collector 's comment was made on 9.2.1989.
Between 25.1.1989 and 8.2.1989 a number of holidays intervened, namely, 26.1.1989 (Republic Day), 28.1.1989 and 29.1.1989 (Saturday and Sunday), and 4.2, 1989 and 5.2.1989 (Saturday and Sunday).
On 749 9.2.
1989, it was sent to the Ministry of Finance (COFEPOSA CELL), New Delhi, and was received by that Ministry on 10.2.
1989.11.1. 1989 and 12.2.1989 being Saturday and Sunday were holidays.
On 13.2.
1989, it was put up before the Joint Secretary, COFEPOSA, and was sent to the Minister of State (Revenue).
The file was received back after the rejection of the representation and such rejection was communicated to the detenu on 20.2.1989.
The two intervening dates, namely, 18.2.1989 and 19.2.1989 being Saturday and Sunday were holidays.
It is clear from the above statement that there was no laches or negligence on the part of the detaining authority or the other authorities concerned in dealing with the representation of the detenu.
In Mst.
L.M.S. Ummu Saleema vs Shri B.B. Gujaral and Another, ; it has been observed that the time imperative can never be absolute or obsessive, and that the occasional observations made by this Court that each day 's delay in dealing with the representa tion must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a medical formula, the slightest breach of which must result in the release of the detenu.
In the instant case, the detaining authority has explained the delay in the disposal of the representation made by the detenu and, accordingly, the order of detention cannot be rendered invalid on that ground.
Lastly, it is argued that the life of each of the ad vance licences has long expired and, therefore, there is no chance of the detenu in involving himself in smuggling activities, as he would not be in a position to import any goods by virtue of the advance licences.
It is submitted that the object of such detention is not punitive, but is preventive.
As there is no chance for the detenu to act in violation of the provisions of the COFEPOSA Act, the deten tion order should be quashed on that ground.
In support of that contention strong reliance has been placed on behalf of the detenu on a decision of the Delhi High Court in Achla Kakkar vs Administrator, Union Territory of Delhi and Others, [1988] Crl.
Law Journal 1896, where it has been observed that the recurrence of breach of such economic offence can be effectively prevented by black listing the person concerned, his detention under the COFE POSA Act was in the nature of punishment liable to be quashed.
In that case also, the detenu imported polyester zips and sold the same in the market without complying with the conditions of the advance li 750 cences.
There is, however, an important point of distinction between the facts of that case and those of the instant case before us.
In that case, the licences were issued in the name of the detenu himself.
But here the licences were issued not in the name of the detenu, but to the name of the said two firms which, according to the detaining authority, had really no existence and were the benami concerns of the detenu.
It is contended by Mr. Mahajan, learned Counsel appearing on behalf of the respondents, that if the detenu is released, he may indulge in such economic offences in setting up fictitious firms and taking out advance licences in the name of such firms.
We have taken into consideration the allegations made in the grounds of detention and in the counter affidavit and it appears that in the names of the said two firms huge amount of export duty has been evaded and the imported goods, which have been allowed to be cleared, have been sold in the market.
We are unable to accept the contention made on behalf of the detenu that the goods were cleared and sold under the orders of the High Court.
It has been rightly observed in the impugned order of the High Court that, surely, the High Court did not permit the detenu to sell the goods in the market.
It may be that a part of the imported goods has not been allowed to be cleared and stands forfeit ed to the Government, but that is no ground in favour of the detenu.
The Government may realise a part of the duty by selling those goods, but that is neither here nor there.
The fact remains that the detenu got the goods cleared and sold the same in the market.
We find no reason not to accept the contention of the respondents that the licences were pro cured by the detenu with a view to importing the goods duty free and selling the same in the market and thereby making a huge profit to the loss and detriment of national economy.
After giving our anxious consideration to all aspects of the case, we uphold the judgment of the High Court.
and dismiss the appeal.
Writ Petition (Criminal) No. 222 of 1989.
The disposal of the above appeal means the disposal of the writ petition.
The writ petition is, accordingly, dis missed.
R.S.S. Appeal and Petition dismissed.
| Respondent No. 1 the Provident Fund Commissioner called upon the appellant Food Corporation of India to deposit contribution payable by it under the Employees ' Provident Fund and Miscellaneous Provisions Act, 1952 and the scheme thereunder, in respect of workers employed by the contrac tors appointed by the appellant for handling storing and transporting food grains and other articles in its depots in Rajasthan.
On appellant 's non compliance, Respondent No. 1 made an order under Section 7A of the Act determining the amount payable by the appellant.
Against the aforesaid order, the appellant filed writ petition before the High Court, which dismissed the same.
Hence the appeal, by spe cial leave, by the appellant Corporation.
It was contended that the appellant was denied a reason able opportunity to produce actual proof of identification of workers in respect of whom contribution was payable inasmuch as Respondent No. 1 neither gave notice to contrac tors, who were in possession of the relevant lists of work ers, nor made them parties to the proceedings, despite its repeated requests.
Allowing the appeal, HELD: The Commissioner, while conducting an inquiry under Section 7A of the Employees, Provident Fund and Mis cellaneous Provisions Act, 1952 has the same powers as are vested in a court under the Code of Civil Procedure for trying a suit.
Thus, the Commissioner is authorised to enforce attendance in person and also to examine any person on oath.
He has the power requiring the discovery and pro duction of documents.
This power was given to the Commis sioner to decide not abstract questions of law, but only to determine actual concrete differences in payment of contri bution and other dues by identifying the 756 workmen.
The Commissioner should exercise all his powers to collect all evidence and collate all material before coming to proper conclusion.
That is the legal duty of the Commis sioner.
It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person.
[757H; 758A; F H] In the instant case, the appellant Corporation had some problems in collating the lists of all workers engaged in depots scattered at different places.
It requested the respondent Commissioner to summon the contractors to pro duce the respective lists of workers engaged by them.
Howev er, the appellant Commissioner did not summon the contrac tors, nor the lists maintained by them.
The matter is, therefore, remitted to the Commissioner for fresh disposal.
[757F; 759A]
|
Appeal No. 890 of 1964.
Appeal by special leave from the order dated February 19, 1963 of the Foreign Exchange Regulation Appellate Board, New Delhi, in Appeal No. 52 of 1959.
A. V. Viswanatha Sastri and J. P. Goyal, for the appellant.
Bishan Narain, R. N. Sachthey and B. R. G. K. Achar, for the respondents.
652 The Judgment of the Court was delivered by Subba Rao, J.
This appeal by special leave raises the short question whether the appellant contravened the provisions of subss.
(1) and (3) of section 4 of the Foreign Exchange Regulation Act, 1947 (VII of 1947), hereinafter called the Act.
During the years 1951 to 1956 the appellant, Ram Rattan Gupta, visited the Far Eastern countries after obtaining the necessary foreign exchange from the Government of India.
During that period the appellant opened current accounts with the Chartered Bank of India, Australia and China, at Singapur, Hong Kong, Osaka and Tokyo, without the general or the special permission of the Reserve Bank of India.
In the different branches of the said Bank he deposited the unspent part of the foreign exchange given to him.
The balance of the said deposits made at the various branches of the Bank was pound 40 (sterling).
The appellant received payments from those accounts even after he returned to India.
The Director, Enforcement Directorate, Foreign Exchange Regulation Act, took proceedings against the appellant under section 19(2) of the Act and, after making the necessary enquiries, found him guilty of contravening the provisions of sub sections
(1) and (3) of section 4 of the Act and imposed on him a penalty of Rs. 2,500/ under section 23 (1) (a) of the Act.
On appeal, the Foreign Exchange Regulation Appellate Board agreed with the view expressed by the Director of Enforcement that the appellant contravened the said provisions of the Act and dismissed the appeal.
The appellant has preferred the present appeal, by special leave, against the judgment of the said Board.
Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, contended that the total of the amounts kept by the appellant in the branches of the said Bank was a negligible balance of the free quota of foreign exchange given to him, that there was no relationship of creditor and debtor between the appellant and the Bank in regard to the said amounts, that the free quota of foreign exchange was given to him without any condition imposed thereon, and that on the said facts there was no scope to invoke either sub section
(1) or sub section
(3) of section 4 of the Act.
We will read the relevant provisions of the Act in order to appreciate the said contentions.
Section 4.
Restrictions on dealing in foreign exchange (1) Except with the previous general or special permission of the Reserve Bank , no person other than an authorised dealer shall in India and no 653 person resident in India other than an authorised dealer shall outside India, buy or borrow from, or sell or lend to, or exchange with, any person not being an authorised dealer, any foreign exchange.
(2). . . . . (3) Where any foreign exchange is acquired by any person other than an authorised dealer for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be, fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so used or, as the case may be, the conditions cannot be complied with, the said person shall without delay sell the foreign exchange to an authorised dealer.
Section 4(1) of the Act was amended in the year 1964, but we are concerned only with the said sub section as it stood before the amendment.
To attract section 4(1), a resident in India other than an authorised dealer shall have lent to any person, not being an authorised dealer, any foreign exchange.
It is not disputed that the said Bank was not an "authorised dealer" within the meaning of the said sub section.
If so, the only question is whether the appellant, in depositing the said amounts in the current account ', of the various branches of the said Bank, lent the said amounts to the Bank.
What is the meaning of the expression "lend" ? It means in the ordinary parlance to deliver to another a thing for use on condition that the thing lent shall be returned with or without compensation for the use made of it by the person to whom it was lent.
The subject matter of lending may also be money.
Though a loan contracted creates a debt, there may be a debt created without contracting a loan; in other words, the concept of debt is more comprehensive than that of loan.
It is settled law 'that tie relationship between a banker and a customer qua moneys deposited in the bank is that of debtor and creditor.
This Court in Shanti Prasad fain vs Director of Enforcement(1) restated the principle in the following words: (1) ; , 324.
6 54 .lm15 "Now the law is well settled that when moneys are deposited in a Bank, the relationship that is constituted between the banker lad the customer is one of debtor and creditor and not trustee and beneficiary.
The banker is entitled to use the monies without being called upon to account for such user, his only liability being to return the amount in accordance with the terms agreed upon between him and the customer.
" But this Court qualified that general statement with the remark that "there might be special arrangement under which a Banker might be constituted a trustee, but apart from such an arrangement, his position qua Banker is that of a debtor, and not trustee".
It follows that ordinarily a deposit of an amount in the current account of a bank creates a debt; but it need not necessarily involve a contract of loan.
Whether a deposit amounts to a loan depends upon the terms of the contract whereunder the deposit is made.
In the context of section 4(1) of the Act, can it be said that the depositor in the present case lent money to the Bank ? When a person deposits free currency in the current account of a bank in order to draw it whenever necessary for the _purpose for which it was given, it is not possible to hold that he enter% into a contract of loan with the bank within the meaning of section 4(1) of the Act.
He only deposits the money for the said purpose.
Should we hold that such a transaction is a loan, many an honest man who deposits foreign exchange in a bank in a foreign country where he is staying for a short time to draw it for his requirements will be committing an offence.
That could not have been the intention of the Legislature.
If such a deposit is not a loan, it follows that the appellant cannot be held to have contravened the provisions of section 4(1) of the Act.
The next question is whether the appellant was guilty of contravening the provisions of sub section
(3) of section 4 of the Act.
Under the relevant part of that sub section, where any foreign exchange was acquired by a person for any particular purpose and where the foreign exchange so acquired cannot be used, the said person shall without delay sell the foreign exchange to an authorised dealer.
Admittedly the foreign exchange was acquired by the appellant for the purpose of meeting his expenditure during his tour of the Far East countries; but he had not used the entire foreign exchange for the said purpose.
If so, under the express provisions of sub section
(3) of section 4 of the Act, he should have without delay sold the same to an authorised dealer.
Instead he kept the 655 said amount in the current account of the various branches of the Bank for a number of years.
The tribunals were, therefore, right in holding that the appellant had contravened the said provision.
No other point arises for consideration in this appeal.
As we find the appellant guilty of an offence only under sub section (3) of section 4 of the Act, we think the ends of justice will be met if a fine of Rs. 1,000 only is imposed on him.
We, therefore, reduce the fine of Rs. 2,500/ imposed on the appellant to Rs. 1,000/ .
In the result, the order of the Foreign Exchange Regulation Appellate Board is modified accordingly.
The parties will bear their own costs.
Order modified.
| The respondent was appointed a Munsif on November 10, 1927.
After promotion he became an Additional District and Sessions Judge and officiated at several stations as District and Sessions Judge but was never confirmed as such.
In the ordinary course he was due to superannuate and retire on July 31, 1953.
By an order dated July 14, 1953 the Government of West Bengal ordered that the respondent be retained in service for a period of two months commencing from August 1, 1953.
The order purported to be under Rule 75(a) of the West Bengal Service Rules, Part 1.
By another order dated July 20, 1953, the respondent was placed under suspension and on the following day he wag served with charges and asked to file a written reply within 15 days.
An enquiry into the charges was made by an officer appointed for the purpose.
During the period of the enquiry the respondent was retained in service, though kept in suspen sion, by repeated orders under rule 75(a).
The enquiry officer reported that some of the charges were proved.
On March 18, 1954 the respondent was asked to show cause why he should not be dismissed from service and after be had shown cause he was dismissed on May 27, 1954.
The Public Service Commission was consulted but not the High Court.
The respondent appealed to the Governor unsuccessfully.
Thereafter he applied to the High Court at Calcutta under articles 226 and 227 of the Constitution against his dismissal.
The High Court quashed the order of dismissal as well as the enquiry.
The Government of West Bengal appealed to this Court on a certificate granted by the High Court.
The questions that fell for consideration were : (1) Whether the enquiry ordered by the Government and conducted by an Executive Officer of the Government against a District and Sessions Judge contravened the provisions of article 235 of the Constitution which vests in the High Court the control over the District Court and the courts subordinate thereto; and (2) whether the provisions of rule 75(a) West Bengal Service Rules could be utilised to extend the service of the respondent beyond the normal age of retirement.
HELD : (i) Rule 75(a) which was modelled on Rule 56(a) of the Fundamental Rules was not designed to be used for the purpose of retaining a person in service for enquiry against him but to keep in employment persons with a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds.
If retention in service for the first reason was considered necessary a rule like Rule 56(d) of the Fundamental Rules was required.
[777 E C] 7 72 (ii) There is special provision for District Judges in the Constitution in articles 233 to 237.
These articles deal with the appointment of persons to be, and postings and promotions of, District Judges and appointment, postings and promotions of Judges subordinate to the District Court and the courts subordinate thereto.
They also provide for special rules to be made by the Governor of the State after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to each State.
These articles were not placed in the Chapter on services but immediately after the provisions in regard to the High Courts.
The articles went a little further than the corresponding sections of the Government of India Act, 1935.
They vested the 'control ' of the district courts and the courts subordinate thereto in the High Courts.
[779 B E; 785 B] (iii) The word 'control ' as used in article 235 includes disciplinary control or jurisdiction over District Judges.
The history which lies behind the enactment of these articles indicates that 'control ' was vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated.
[786 B] The word 'control ', moreover, is accompanied by the word 'vest ' which is a strong word.
It shows that the High Court is made the sole custodian ,of the control over the judiciary.
Control therefore is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction on the presiding Judge.
[786 C D] Article 227 gives to the High Court superintendence over these Courts and enables the High Court to call for returns etc.
The word 'control ' in article 235 must have a different content.
It includes something in addition to mere superintendence.
It is control over the conduct and discipline of Judges.
The inclusion of a right of appeal against the orders of the High Court in the conditions of service necessarily indicates an order passed in disciplinary jurisdiction, and the word 'deal ' also points to disciplinary and not mere administrative jurisdiction.
[786 D F] (iv) Although the term used is "district court" the word 'court ' is used compendiously to denote not only the court proper but also the presiding Judge.
[786 G H] (v) That the Legislature has under article 309 the power to make laws relating to the services does not show that the Executive under article 162 enjoys corresponding executive power, when the Constitution indicates otherwise.
[787 F G] (vi) There is nothing in article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the inquiry if article 235 vested some power in it.
The control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.
Within the exercise of the control vested in the High Court, the High Court can bold enquiries, impose punishments other than dismissal or removal subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the ,giving of an opportunity of showing cause as required by cl.
(2) of article 31 1.
unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.
[790 A C] The High Court alone could have held inquiry in this case.
To hold otherwise would be to reverse the trend which has moved determinedly in this direction.
[790 C D] 773
|
ivil Appeal No. 4974 of 1990.
From the Judgment and Order dated 20.6.1990 of the Bombay High Court in W.P. 2403 of 1989.
G.L. Sanghi, Mrs. Jayshree Wad, Dhruv Mehta and Ms. Tamali Das Gupta for the Appellant S.V. Deshpande, V.N. Patil and A. section Bhasme (NP), for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Pursuant to the Notification issued in June 1986 the elections of Directors to the District Central Cooperative Bank, Chandrapur, hereinafter referred to as 'the Bank ' the appellant filed his nomination papers in July 1986, and he was elected on 18.8.1986 as one of the Directors of the Bank from the Brehmapuri Agricultral Sales and Purchase Society.
His election was not called in question according to the procedure prescribed by the Maharashtra Cooperative Societies Act, 1960, hereinafter referred to as 'the Act '.
On 8.1.1987, the District Deputy Registrar of the Cooperative Societies, Chandrapur, hereinafter referred to as 'the Deputy Registrar ', issued a notice to the appellant under section 78(1) of the Act to show cause within 15 days as to why he should not be removed from the Board of Directors of the Bank as per the provisions of section 73FF, and directed him to remain present on 2.2.1987 at 11 678 A.M. in the Deputy Director 's office.
The notice stated that the appellant had borrowed a loan of total Rs. 10,000 (Rs. 7,000 as debt and Rs. 3,000 subsidy) from the Bank and he kept the loan constanty in arrears till 21.10.1986, and being elected as Director of the Bank on 18.8.1986.
till then he was working as the Director of the Bank.
The notice further said: "Because you have remained in arrars of the loan instalments as referred above to the Maharashtra State Cooperative Land Development Bank, under Section 73FF(i)(b) of the Maharashtra State Cooperative Societies Act, 1960, you are disqualified to be elected or to continue as Director or Executive Committee Member of the Executive Committee of a Cooperative Society and u/s 73FF(2) of Maharashtra State Cooperative Societies Act, 1960 a person committing defaults ceased to be the Executive Committee (member) or Director.
From the information above given because the loan instalments of Maharashtra State Cooperative Land Development Bank remained due from you on the date of filing nomination papers for the election of post of Director of Chandrapur District Central Cooperative Bank and also on the date of your election and thereafter, you are disqualified to contest the election to the post of Director of Chandrapur District Central Cooperative Bank as also to be elected and to continue as Director.
And therefore under powers given to me by Section 78(1) of Maharashtra State Cooperative Societies Act, 1960 and order No. CSL/1481/24982/15 C(87) dated 1.7.81 of Agriculture and Cooperation Department of Maharashtra State Government.
I, K.M. Deshpande, District Dy, Registrar, Cooperative Societies, Chandrapur hereby ask you to show cause in writing as to why you should not be removed from the Board of Directors of Chandrapur District Central Cooperative Bank and from the Executive Committees of the other cooperative societies in the District.
Your explanation in writing should be submitted to this office within 15 days from the receipt of this notice.
" The appellant showed cause and also filed an additional reply on 10.11.87 stating that he "had not committed any default after the 679 amended section 73FF came into existence.
" The Assistant Regisrar, Cooperative Societies, Chandrapur by his order dated 7.12.1987 removed the appellant from the Committee of Directors of the Bank holding that appellant was defaulter on 31.1.1986, on 31.3.1986 and he became defaulter under the provisions of section 73FF(1) of the Act, and rejected the appellant 's contention that section 73FF became applicable from 6.8.1986 as per the Government Notification issued on 18.4.1986 and that as he had accepted that he paid the dues on 21.10.1986, on 18.8.1986 when he was elected as Director, he was defaulter under section 73FF(1) of the Act.
The order of the Assistant Registrar dated 7.12.1987 was served on the appellant on 8.12.87.
The appellant 's appeal against that order was dismissed by the Divisional Joint Registrar of the Cooperative Societies, Nagpur on 15.2.1988, holding, inter alia, that section 73FF of the Act came into force on 12.5.1986 and the appellant could be treated as a defaulter under that section; and the mere making of payment on 21.10.86 did not mean that the disqualification on account of his being defaulter which continued from 18.8.1986 to 21.10.1986 was extinguished and hence the appellant was not at all eligible to contest the election.
The appellant 's revision petition therefrom under section 154 of the Act was dismissed on 30.8.89 by the Cooperation and textile Department, State of Maharashtra, Bombay holding that the appellant was defaulter under section 73FF of the said Act on 18.8.1986 i.e. the date when he was declared elected as Director.
The appellant 's writ petition in the High Court filed on 1.9.1989 challenging the above order dated 30.8.89 was dismissed by the impugned Judgment and Order dated 20.6.90, holding that the dues calculated on 31.1.86 became recurring dues every following day and on 12.5.1986 when section 73FF came into force the outstanding dues continued even on 18.8.1986 when the appellant contested the election; and that the question of giving retrospective effect to the section did not arise because the appellant was a defaulter when he contested the election and though he paid all the debts on 21.10.1986 yet he could not be "absolved of the disqualification on the day he contested the election".
Hence this appeal by special leave.
Mr. G. L. Sanghi, the learned counsel for the appellant submits, inter alia, that the impugned order of the Assistant Registrar removing the appellant from the Committee of the Directors is without jurisdiction inasmuch as the Act prescribes a separate procedure for calling in 680 question the appellant 's election as a Director of the Bank and that procedure having not been followed the Assistant Registrar could not have acted under section 78(1) of the Act which did not envisage the setting aside of an election as has been done by the impugned order;that the appellant having repaid the entire loan before the impugned notice under section 78(1) of the Act was issued, he was surely not a defaulter in presenti on the date of the notice and the provisions of section 78(1) were not attracted; and that even assuming that the disqualification on the ground of default is common both for election and for continuation as a Director in the Committee, the special provision for setting aside an election must prevail over section 78 as there would be apparent conflict between the two and the maxim generalia specialibus non derogant general words do not derogate from special, would apply, Mr. V. N. Patil, the learned counsel for the State of Maharashtra, submits that the disqualification as defaulter continued after the election of the appellant and section 78 envisaged such a default and the appellant having continued to be a defaulter was lawfully removed and the fact that he repaid the loan before the notice was issued would not be material for the purpose of taking action under section 78.
Chapter XI A of the Act deals with election of committees and officers of certain societies.
Admittedly this Chapter applies to the Bank.
Section 144E deals with disqualification for membership.
Under sub section (1) thereof a person shall be disqualified for being elected as, and for being a member, of the committee of any specified society, . (e) if he is so disqualified by or under any other provision of this Act.
Section 144T deals with desputes relating to election and provides in sub section (1) that notwithstanding anything contained in section 91 or any other provisions of this Act, any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held or to an officer not below the rank of Additional Commissioner of division authorised by the State Government in this behalf.
The procedure for an election petition is prescribed by the subsequent section of that Chapter.
Admittedly the appellant 's election was not called in question under the above provision.
Section 144E, as have noted, over and above the other specified disqualifications in sub section (e) included disqualifications by or under any other provisions of the Act.
Section 78(1) which deals with powers of removal of committees or member thereof provides as follows: 681 "78(1) If, in the opinion of the Registrar, the committee of any society or any member of such committee makes default, or is negligent in the performance of the duties imposed on it or him by this Act or the rules or the bye laws, or commits any act which is prejudicial to the interests of the society or its members, or wilfully disobeys interests of the society or its members, or wilfully disobeys directions issued by the State Government, or by the Registrar for the purposes of securing proper implementation of cooperative policy and development programme approved or undertaken by the State Government or is otherwise not discharging its or his functions properly and diligently and the business of the society has or is likely to come to a standstill, or where any member of such committee stands disqualified by or under this Act for being a member, the Registrar may, after giving the committee or the member, as the case may be, an opportunity of stating its or his objections, if any, within 15 days from the date of receipt of notice, and after consultation with the federal society to which the society is affiliated, by order (a) (i) remove the committee, and (ii) appoint a committee consisting of three or more members (who shall not be the members of the committee so removed) of the society in its place, or appoint one or more Administrators who need not be the members of the society, but who shall not be the members of the committee so removed, to manage the affairs of the society for a period not exceeding six months, which period, at the discretion of the Registrar, be extended by a further period not exceeding three months so, however, that the total period does not exceed nine months in the aggregate: Provided that, the Registrar shall have the power to change the committee or any member thereof or the Administrator or Administrators appointed under paragraph (ii) at his discretion even before the expiry of the period secified in the order made under this sub section; (b) xxx xxx xxx" Section 78(1) empowers the Registrar to remove a member of a committee who "makes default" or where any member of such committee 682 "stands disqualified by or under this Act for being a member".
Section 73FF deals with disqualification for membership of committee.
Sub section (1) provides: "Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being a member of a committee, no person shall be eligible for being appointed, nominated, elected, co opted or, for being a member of a committee, if he (i) is a defaulter of any society; Explanation For the purposes of this clause, the term "defaulter" includes (a) in the case of a primary agricultural credit society, a member who defaults the repayment of the crop loan on the due date; (b) in the case of term lending society, a member who defaults the payment of any instalment of the loan granted to him; xxx xxx xxx xxx xxx xxx Sub section (2) says: "A member who has incurred any disqualification under sub section (1), shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant." This section was inserted by Maharashtra Act, XX of 1986 with effect from 12.5.86.
If the impugned order is found to have been passed by way of setting aside the election of the appellant the order would be bad as the appellant 's election had not been called in question in accordance with the procedure prescribad by the Act.
However, the notice has ex facie been issued under section 78 of the Act.
No doubt there is reference to the appellant 's having been a defaulter and disqualified for being elected but it has been addressed to the appellant as Director of the Bank and also stated: "You have been elected as Director on the Board of Directors of Chandrapur District Central Cooperative Bank on 18.8.1986 and today on this date you are working as the Director of the said Bank.
" It also refers to the appellant 's being disqualified or to continue as Director or Executive Committee member of the Executive Committee ' under 683 section 73FF of the Act and about ceasing too be a Director by committing default.
From the above contents, there is no room for holding that the appellant 's election has been set aside by the impugned order; on the other hand, the emphasis is on the appellant 's being disqualified to continue as Director or creasing to be Director on account of his having committed default.
The question of generalibus specialia derogant special things take from general or generalia specialibus non derogant general words do not derogate from special, therefore, does not arise.
What was stated in para 36 of the report in Hundraj Kanayalal Sajnani vs Union of India, ; at 1121 will not be relevant.
The question of repugnancy involved in Zaverbhai Amaidas.
vs The State of Bombay, [1955] 1 SCR 799 does not arise in this case.
The decision in Maharashtra State Board of Education vs Paritosh Sheth, ; is also not apposite.
The provisions relating to election have to be interpreted harmoniously with other provisions of the Act such as in section 78(1).
Interpretare concordare leges legibus est optimus interpretendi modus.
To interpret and in such a way as to harmonize laws with laws is the best mode of interpretation.
Mr. Sanghi does not dispute that the appellant was in arrear in respect of instalments on the date of his election and till 21.10.1986 i.e. both prior and posterior to his election on 18.8.1986.
Admittedly the instalment was not paid on due date.
There was of course some dispute as to the amount of interest payable and appropriation of the amount paid against interest instead of capital but all this would not exonerate the appellant from being in default on non payment of instalment on due date.
Mr. Sanghi, however, submits that the expression, "makes default" or "stands disqualified" being in present the default must have been committed after the coming into force of section 73FF and that his default even, if any, was prior to that date and not after that date.
We are unable to persuade ourselves to accept this submission.
The day an instalment falls due on its due date failure to pay results in default and that default continues from day to day until it is repaid.
Every day thereafter until payment results in making of default and, therefore, it could not be said that default could be on the due date only and thereafter no default but only liability.
Considered by this principle the appellant can be said to have made default on the first day of his directorship and on every subsequent day till the instalment or instalments were paid.
The submission, has therefore, to be rejected.
684 Similarly the submission that the defalult must have been one committed after the Act came into force has also to be rejected on the same ground that immediately on the Act coming into force the appellant was a defaulter and so long that default continued he must be taken to have made default until repayment.
What then would be the consequence of such a default.
Sub section (2) of section 73FF says that a member who has incurred any disqualification under sub section (1) shall cease to be a member of the Committee and his seat shall thereupon be deemed to be vacant.
Therefore, the moment the appellant after election continued to be in default, and, therefore, must be taken to have made default, stood disqualified and thereby ceased to be a member of the committee and his seat deemed to have fallen vacant.
In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a Director and his seat already fell vacant.
In Keshaorao Narayanrao Patil vs District Deputy Registrar reported in Bombay High Court held that section 73FF(2) did not operate automatically and that passing of an order of removal was necessary.
This has to be interpreted in the context of the provisions in the section.
In this view of the matter there could not be any infirmity either in the notice or in the impugned order of removal.
The result is that this appeal fails and is dismissed.
The interim orders, if any, stand vacated.
No. costs.
R.N.J. Appeal dismissed.
| The respondent field a suit against the appellant for recovery of possession of a building on the ground of wilful deflault in payment of rent which was Rs. 900 per ;month.
The appellant denied the relationship of landlord and tenant, claiming himself as one of the "associates" or "co sharers" or "co owners" of the building.
The Munsif decreed the suit; and the decree was affirmed in appeal by the first appellate court as also by the High Court.
Hence the present appeal.
During the pendency of the present appeal, cl.
(ii) of section 30 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which exempted from application of the Act premises the monthly rent in respect of which exceeded Rs. 400, and on the basis of which the suit giving rise to the present appeal emanated, was struck down in a judgment by this Court.
** The appellant contended that as a result of the declaration by this Court of the constitutional invalidity of clause (ii) of section 30, of the Act, 311 which excluded from the purview of the Act any building or part thereof let out on a monthly rent of Rs. 400, the decree of the civil court became null and void and of no effect.
On behalf of the respondent it was submitted that the decree passed by the civil court was not a nullity for the Act did ;not bar the jurisdiction of the civil court but only prohibited execution of a decree of eviction otherwise than in accordance with the relevant statutory provision; and that such a decree was not void, but was merely under an eclipse, and would become executable as and when the bar is removed.
Allowing the appeal, this Court, HELD; 1.1 Section 10 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prohibits jurisdiction of the civil court in respect of eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that section and sections 14 to 16.
The sole circumstance and the condition precedent to the exercise of jurisdiction by a civil court as stated in second proviso to section 10(1) is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller, on such denial or claim by the tenant, reaches a decision and duly records a finding that such denial or claim was bona fide and only when these conditions are satisfied jurisdiction of the civil court can be invoked to pass a decree for eviciton on any of the grounds mentioned in section 10 or sections 14 to 16.
Except to this limited extend the jurisdiction of the civil court is completely barred and the same is vested in the tribunals set up under the Act.
Any suit instituted by a landlord for eviction of a tenant from a building falling within the ambit of the Act,otherwise than as stipulated by the section is, therefor, incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect.
[317D E, G H; 318 D,G H] Sushil Kumar Mehta vs Gobind Ram Bohra, [1990] 1 SCC page 193, referred to.
1.2 The decision of the Controller is concerned solely with the bona fides, and not the correctness or validity, of the denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate civil court which is the more competent forum in such matters.
[318D E] Magiti Sasamal vs Pandab Bissoi,[1962] 3 SCR 673, referred to.
1.3 If the decision of the Controller is that tenant 's denial or 312 claim is not bona fide, the jurisdiction of the civil court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction, after affording the parties a reasonable opportunity of being heard, on any one of the grounds specified under the statute, including the ground that the tenant has, without bona fide denied landlord 's title or claimed right of permanent tenancy.[318E F] 1.4 Although the Act contains no express bar of jurisdiction of the civil court, its provisions explicitly show that, subject to the extraordinary powers of the High Court, and this Court, such jurisdiction is statute for eviction of tenants "in execution or otherwise".
The provision of the Act are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their competence to administer the same remedy as the civil courts render in civil suits.
Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it.
[317A C] Dhulabhai &Ors.
vs The State of Madhya Pradesh & Anr.
, ; ; Secretary of State vs Mask & Co., [1939 40] IA 222 (PC, Raleigh Investment Co. Ltd. vs Governor General in Council, [1946] 47 IA 50 (PC and Barraclough vs Brown & Ors., , referred to.
In the instant case, the procedure stipulated in the second proviso to section 10 had not been complied with.
At the time of institution of the suite, the building in question did not come within the ambit of the Act, owing to the exclusionary provision contained in cl.
(ii) of section 30, but after leave to appeal was granted, the applicability of the Act was extended to the building by reason of the decision of this Court, declaring the invalidity of cl.
(ii) of section 30 on account of its inconsistency with Article 14 of the Constitution.
Whatever be the consequences of that declaration whether it has rendered the statutory provision null and void and of no effect, or, merely inoperative, unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban in either event, the civil court acting without the aid of the exclusionary provision in cl.
(ii) of section 30, during the period of invalidity,had become coram non judice and its proceedings resulting in the decree a nullity.
[319A D] 313 Ratan Arya & Ors.
vs State of Tamil Nadu & Anr.
, ; , referred to.
Kiran Singh & Ors.
vs Chaman Paswan & Ors., ; relied on.
V.B. Patankar & Ors.v.
C.G. Sastry, ; , held inapplicable.
Behram Khurshed Pesikaka vs State of Bombay, ; Saghir Ahmad vs State of U.P. and Ors. ; ; Bhikaji Narain Dhakras & Ors.
vs The State of M.P.
The State of A.P. & Anr., ; , referred to.
|
DICTION: Writ Petition Nos.
6091, 8882 83, 9219, 9820 of 1983 and 10658, 10761 of 1983 & CMP.
No. 29116/83 (in WP.
No. 9618/83) (Under article 32 of the Constitution of India) With Civil Appeal No. 6392 of 1983 Appeal by Special leave from the Judgment and Order dated the 17th August, 1983 of the Delhi High Court in C.W.P. No. 1791 of 1983.
V.M. Tarkunde, A.K. Srivastava, S.K. Jain and Vijay Hansaria, for the petitioners.
R. Venkataramani for the Appellant in CA.
6392/83.
A.K. Ganguli, S.K. Baga & N.S. Das Bahl for the Respondents in CA.
No. 6392 of 1983.
P.P. Rao and A.K. Ganguli for the Delhi University.
S.N. Chaudhary for the Respondents (State of Assam) K.G. Bhagat, Addl.
General, Miss A. Subhashini & R.N. Poddar for the Respondent Union of India.
Kapil Sibal and Mrs. Shobha Dixit for the Respondent State of U.P. D.P. Mukherjee and G.S. Chatterjee for the Respondent State of West Bengal.
G.S. Narayana, Ashivini Kumar, C.V. Subba Rao, Swaraj Kaushal & Mr. M. Veerappa, for the Respondent State of Karanataka.
K. Parasaran and B. Parthasarthi for the Respondent States of Andhra Pradesh.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondent.
P.K. Pillai, for the Respondent State of Kerala.
P.N. Nag, for the State of H.P. P.R. Mridul, and R.K. Mehta for the State of Orissa.
Altaf Ahmed for the State of J & K. The following Judgments were delivered 951 BHAGWATI, J.
This group of Writ Petitions raises a question of great national importance affecting admissions to medical colleges, both at the under graduate and at the post graduate levels.
The question is, whether, consistently with the constitutional values, admissions to a medical college or any other institution of higher learning situate in a State can be confined to those who have their 'domicile ' within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess 'domicile ' or residential qualification within the State, irrespective of merit.
This question has assumed considerable significance in the present day context, because we find that today the integrity of the nation is threatened by the divisive forces of regionalism, linguism and communalism and regional linguistic and communal loyalties are gaining ascendancy in national life and seeking to tear apart and destroy national integrity.
We tend to forget that India is one nation and we are all Indians first and Indians last.
It is time we remind ourselves what the great visionary and builder of modern India, Jawaharlal Nehru said, "Who dies if India lives : who lives if India dies ?" We must realise, and this is unfortunately that many in public life tend to overlook, sometimes out of ignorance of the forces of history and sometimes deliberately with a view to promoting their self interest, that national interest must inevitably and for ever prevail over any other considerations proceeding from regional, linguistic or communal attachments.
If only we keep these basic considerations uppermost in our minds and follow the sure path indicated by the founding fathers of the Constitution, we do not think the question arising in this group of writ petitions should present any difficulty of solution.
The history of India over the past centuries bears witness to the fact that India was at no time a single political unit.
Even during the reign of the Maurya dynasty, though a large part of the country was under the sovereignty of the Mauryan kings, there were considerable portions of the territory which were under the rule of independent kingdoms.
So also during the Moghul rule which extended over large parts of the territory of India, there were independent rulers who enjoyed political sovereignty over the territories of their respective kingdoms.
It is an interesting fact of history that India was forged into a nation neither on account of a common language nor on account of the continued existence of a single political regime over its territories but on account of a 952 common culture evolved over the centuries.
It is cultural unity something more fundamental and enduring that any other bond which may unite the people of a country together which has welded this country into a nation.
But, until the advent of the British rule, it was not constituted into a single political unit.
There were throughout the period of history for which we have fairly authenticated account, various kingdoms and principalities which were occasionally engaged in conflict with one another.
During the British rule, India became a compact political unit having one single political regime over its entire territories and this led to the evolution of the concept of a nation.
This concept of one nation took firm roots in the minds and hearts of the people during the struggle for independence under the leadership of Mahatma Gandhi.
He has rightly been called the Father of the Nation because it was he who awakened in the people of this country a sense of national consciousness and instilled in them a high sense of patriotism without which it is not possible to build a country into nationhood.
By the time the Constitution of India came to be enacted, insurgent India, breaking a new path of nonviolent revolution and fighting to free itself from the shackles of foreign domination, had emerged into nationhood and "the people of India" were inspired by a new enthusiasm, a high noble spirit of sacrifice and above all, a strong sense of nationalism and in the Constitution which they framed, they set about the task of a strong nation based on certain cherished values for which they had fought.
The Preamble of the Constitution was therefore, framed with the great care and deliberation so that it reflects the high purpose and noble objective of the Constitution makers.
The Preamble declares in highly emotive words pregnant with meaning and significance: "We, The People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation; 953 In Our Constituent Assembly this twenty sixth day of November, 1949, do Hereby Adopt, Enact And Give To Ourselves This Constitution.
" These words embody the hopes and aspirations of the people and capture and reproduce the social, economic and political philosophy underlying the Constitution and running through the warp and woof of its entire fabric.
It is significant to note that the Preamble emphasises that the people who have given to themselves this glorious document are the people of India, the people of this great nation called India and it gives expression to the resolve of the people of India to constitute India into a sovereign socialist secular democratic republic and to promote among all its citizens fraternity assuring the dignity of the individual and the unity and integrity of the nation.
The Constitution makers were aware of the past history of the country and they were also conscious that the divisive forces of regionalism, linguism and communalism may one day raise their ugly head and threaten the unity and integrity of the nation, particularly in the context of the partition of India and the ever present danger of the imperialist forces adopting new stratagems, apparently innocuous, but calculated to destabilise India and re establish their hegemony and, therefore, they laid great emphasis on the unity and integrity of the nation in the very Preamble of the Constitution.
Article 1 of the Constitution then proceeds to declare that India shall be a Union of States but emphasizes that though a Union of States, it is still one nation with one citizenship.
Part II dealing with citizenship recognises only Indian citizenship: it does not recognise citizenship of any State forming part of the Union.
Then follow Articles 14 and 15 which are intended to strike against discrimination and arbitrariness in state action, whether legislatives or administrative.
They read as follows: "Article 14: The State shall not deny to any persons equality before the law or the equal protection of the laws within the territory of India." "Article 15: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth of any of them.
(2) No citizen shall on grounds only of religion, race, caste.
sex, place of birth or any of them, be subject 954 to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places so public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) 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.
" Article 19 (1) again recognises the essential unity and integrity of the nation and reinforces the concept of one nation by providing in clauses (d) and (e) that every citizen shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India.
Article 301 declares that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free.
Then there are situations envisaged in certain Articles of the Constitution such as Articles 353 and 356 where the executive power of a State forming part of the Union is exercisable by the Central Government or subject to the directions of the Central Government.
Thus, the entire country is taken as one nation with one citizenship and every effort of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation.
Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and is entitled to equality before the law and equal protection of the law with other citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or/speaking Marathi language be 955 regarded as an outsider in Karnataka.
He must be held entitled to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be.
To regard him as an outsider would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent states.
But, unfortunately, we find that in the last few years, owing to the emergence of narrow parochial loyalties fostered by interested parties with a view to gaining advantage for themselves, a serious threat has developed to the unity and integrity of the nation and the very concept of India as a nation is in peril.
The threat is obtrusive at some places while at others it is still silent and is masquerading under the guise of apparently innocuous and rather attractive clap trap.
The reason is that when the Constitution came into operation, we took the spirit of nation hood for granted and paid little attention to nourish it, unmindful of the fact that it was a hard won concept.
We allowed `sons of the soil ' demands to develop claiming special treatment on the basis of residence in the concerned State, because recognising and conceding such demands had a populist appeal.
The result is that `sons of the soil ' claims, though not altogether illegitimate if confined within reasonable bounds, are breaking asunder the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence within a state.
Today unfortunately, a citizen who has his permanent residence in a state entertains the feeling that he must have a preferential claim to be appointed to an office or post in the state or to be admitted to an educational institution within the state vis a vis citizen who has his permanent residence in another state, because the latter is an outsider and must yield place to a citizen who is a permanent resident of the state, irrespective of merit.
This, in our opinion, is a dangerous feeling which, if allowed to grow, indiscriminately, might one day break up the country into fragments, though, as we shall presently point out, the principle of equality of opportunity for education and advancement itself may justify, within reasonable limits, a preferential policy based on residence.
We may point out at this stage that though Article 15 (2) clauses (1) and (2) bars discrimination on grounds not only of religion, race, caste or sex but also of place of birth, Article 16 (2) goes 956 further and 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 state employment.
So far as employment under the state, or any local or other authority is concerned, no citizen can be given preference nor can any discrimination be practised against him on the ground only of residence.
It would thus appear that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the State and having regard to the expansive meaning given to the word `State ' in Ramana Dayaram Shetty vs International Airport Authority of India & Ors., it is obvious that this constitutional prohibition would also cover an office under any local or other authority within the State or any corporation, such as a public sector corporation which is an instrumentality or agency of the State.
But Article 16 (3) provides an exception to this rule by laying down that Parliament may make a law "prescribing, in regard to a class or classes of employment or appointment to an office under the government of, or any local or other authority, in a state or union territory, any requirement as to residence within that state or union territory prior to such employment." or appointment Parliament alone is given the right to enact an exception to the ban on discrimination based on residence and that too only with respect to positions within the employment of a State Government.
But even so, without any parliamentary enactment permitting them to do so, many of the State Governments have been pursuing policies of localism since long and these policies are now quite wide spread.
Parliament has in fact exercised little control over these policies States.
The only action which Parliament has taken under Article 16 (3) giving it the right to set residence requirements has been the enactment of the Public Employment (Requirement as to Residence) Act, 1957 aimed at abolishing all existing residence requirements in the States and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himchal Pradesh.
There is therefore at present no parliamentary enactment permitting preferential policies based on residence requirement except in the case of Andhra Pradesh, Manipur Tripura and Himachal Pradesh where the Central Government has been given the right to issue directions setting residence requirements in the subordinate services.
Yet, in the face of Article 16 (2), some of the States are adopting `sons of the soil ' policies prescribing reservation 957 or preference based on domicile or residence requirement for employment or appointment to an office under the government of a State or any local or other authority or public sector corporation or any other corporation which is an instrumentality or agency of the State.
Prima facie this would seem to be constitutionally impermissible though we do not wish to express any definite opinion upon it, since it does not directly arise for consideration in these writ petitions and civil appeal.
But, it is clear that so far as admissions to an educational institution such as a medical college are concerned, Article 16(2) has no application, If, therefore, there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Article 15 clauses (1) and (2).
Nor can Article 16(2) be invoked for invalidating such residence requirement because these clauses prohibits discrimination on ground of place of birth and not on ground of residence and, as pointed out by this Court in D.P. Joshi vs State of Madhya Bharat, residence and place of birth are "two distinct conceptions with different connotations both in law and in fact".
The only provision of the Constitution on the touch stone of which such residence requirement can be required to be tested is Article 14 and that is precisely the challenge which falls to be considered by us in these writ petitions.
Now there are in our country in almost all States residence requirements for admission to a medical college.
Sometimes the requirement is phrased by saying that the applicant must have his domicile in the State.
We must protest against the use of the word `domicile ' in relation to a State within the union of India.
The word `domicile ' is to identify the personal law by which an individual is governed in respect of various matters such as the essential validity of a marriage, the effect of marriage on the proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables.
`Domicile ' as pointed out in Halsbury 's laws of England (Fourth Edition) Volume 8 paragraph 421, "is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law." "(Emphasis supplied.) It is well settled that the domicile of a person is in 958 that country in which he either has or is deemed by law to have his permanent home "By domicile" said Lord Cranworth in Wicker vs Homes we mean home, the permanent home. ' The notion which lies at the root of the concept of domicile is that of permanent home.
" But it is basically a legal concept for the purpose of determining what is the personal law applicable to an individual and even if an individual has no permanent home, he is invested with a domicile by law.
There are two main classes of domicile: domicile of origin that is communicated by operation of law to each person at birth, that is the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person or full age is free to acquire in substitution for that which he presently possesses.
The domicile of origin attaches to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely.
Now the area of domicile, whether it be domicile of origin or domicile of choice, is the country which has the distinctive legal system and not merely the particular place in the country where the individual resides.
This position is brought out clearly and emphatically in paragraph 422 of Halsbury 's Laws of England (Fourth Edition) Volume 8 where it is stated: "Each person who has, or whom the law deems to have, his permanent home within the territorial limits of a single system of law is domiciled in the country over which the system extends; and he is domiciled in the whole of that country even though his home may be fixed at a particular spot within it.
" What would be the position under a federal polity is also set out in the same paragraph of volume 8 of Halsbury 's Laws of England (Fourth Edition): "In federal states some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the states or provinces of the federation and the individual will be domiciled in one state or province only.
" This being the true legal position in regard to domicile, let us proceed to consider whether there can be anything like a domicile in a state forming part of the Union of India.
Now it is clear on a reading of the Constitution that it 959 recognises only one domicile namely, domicile in India.
Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, "domicile in the territory of India.
" Moreover, it must be remembered that India is not a federal state in the traditional sense of that term.
It is not a compact of sovereign states which have come together to form a federation by ceding a part of their sovereignty to the federal states.
It has undoubtedly certain federal features but it is still not a federal state and it has only one citizenship, namely, the citizenship of India.
It has also one single unified legal system which extends throughout the country.
It is not possible to say that a distinct and separate system of law prevails in each State forming part of the Union of India.
The legal system which prevails through out the territory of India is one single indivisible system with a single unified justicing system having the Supreme Court of India at the apex of the hierarchy, which lays down the law for the entire country.
It is true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject to the over riding power of Parliament, the States can also make laws with respect to subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian Legal system.
It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India; merely because with respect to the subjects within their legislative competence, the States have power to make laws.
The concept of `domicile ' has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States.
It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one state or another forming part of the Union of India.
The domicile which he has is only one domicile, namely, domicile in the territory of India.
When a person who is permanently resident in one State goes to another State with intention to reside there permanently or indefinitely, his domicile does not undergo any change: he does not acquire a new domicile of choice.
His domicile remains the same, namely, Indian domicile.
We think it highly deterimental to the concept of unity and integrity of India to think in terms of State domicile.
It is true and there we agree with the argument advanced on behalf of the State Governments, that the word `domicile ' in the Rules of 960 some of the State Governments prescribing domicilary requirement for admission to medical colleges situate within their territories, is used not in its technical legal sense but in a popular sense as meaning residence and is intended to convey the idea of intention to reside permanently or indefinitely.
That is, in fact the sense in which the word 'domicile ' was understood by a five Judge Bench of this Court in D. P. Joshi 's case (supra) while construing a Rule prescribing capitation fee for admission to a medical college in the State of Madhya Bharat and it was in the same sense that word 'domicile ' was understood in Rule 3 of the Selection Rules made by the State of Mysore in Vasundra vs State of Mysore.
We would also, therefore, interpret the word 'domicile ' used in the Rules regulating admissions to medical colleges framed by some of the States in the same loose sense of permanent residence and not in the technical sense in which it is used in private international law.
But even so we wish to warm against the use of the word 'domicile ' with reference to States forming part of the Union of India, because it is a word which is likely to conjure up the notion of an independent State and encourage in a subtle and insidious manner the dormant sovereign impulses of different regions.
We think it is dangerous to use a legal concept for conveying a sense different from that which is ordinarily associated with it as a result of legal usage over the years.
When we use a word which has come to represent a concept or idea, for conveying a different concept or idea it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning.
The concept of domicile if used for a purpose other than its legitimate purpose may give rise to lethal radiations which may in the long run tend to break up the unity and integrity of the country.
We would, therefore, strongly urge upon the State Governments to exercise this wrong use of the expression 'domicile ' from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.
We may now proceed to consider whether residential requirement or institutional preference in admissions to technical and medical colleges can be regarded as constitutionally permissible.
Can it stand the test of Article 14 or does it fall foul of it and must be struck down as constitutionally invalid.
It is not possible to answer this question by a simple "yes" or "no" It raises a 961 delicate but complex problem involving consideration of divers factors in the light of varying social and economic facts and calls for a balanced and harmonious adjustment of competing interests.
But, before we embark upon a consideration of this question, it may be pointed out that there is before us one Civil Appeal, namely, C.A.No. 6392 of 1983 filed by Rita Nirankari and five writ petitions, namely, Writ Petition Nos. 8882 of 1983, 8883 of 1983, 9618 of 1981, 10658 of 1983 and 10761 of 1983 filled by Nitin Aggarwal, Seema Garg, Menakshi, Alka Aggarwal and Shalini Shailendra Kumar respectively.
These civil appeal and writ petitions relate to admissions to medical colleges affiliated to the Delhi University and situate in the Union Territory of Delhi.
Then we have writ petition No. 982 of 1983 filed by Dr. Mrs. Reena Ranjit Kumar and writ petition No. 9219 of 1983 filed by Nandini Daftary which relate to admission to the M.D.S. Course and M.B.B.S. course respectively of Karnataka University.
We have also writ petition No. 6091 of 1983 filed by Dr. Pradeep Jain seeking admission to the M.D.S. course in King George Medical College, Lucknow affiliated to the Lucknow University.
When these writ petitions and civil appeal were admitted, we made interim orders in some of them granting provisional admission to the petitioners and we may make it clear that wherever we have granted provisional admissions shall not be disturbed, irrespective of the result of these civil appeal and writ petitions.
We may also point out that since these civil appeal and writ petitions challenged the constitutional validity of residential requirement and institutional preference in regard to admissions in medical colleges in the States of Karnataka and Uttar Pradesh and the Union Territory of Delhi and we were informed that it is the Uniform and consistent practice in almost all States to provide for such residential requirement or institutional preference we directed that notices of these civil appeal and writ petitions may be issued to the Union of India and the States of Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamilnadu and West Bengal and the State Governments to which such notices are issued shall file their counter affidavits dealing in particular with the question of reservation in admission on the basis of domicile or residential requirement within two weeks from the date of service of such notices.
Some of the State Governments could not file their counter affidavits within the time granted by us and they accordingly made an application for extension of time and by an order dated 30th August, 1983 we extended the time for filing of counter affidavits 962 and directed the State Governments to set out in their counter affidavits facts and figures showing as to what is the procedure which is being followed by them so far as admissions to medical colleges in their States are concerned.
It appears that most of the state Governments to whom notices were issued filed their counter affidavits and though no notice was directed to be issued to the State of Himachal Pradesh, the Government of that State also filed a counter affidavit.
The Delhi University in its counter affidavit gave a brief synopsis summarising the domicile or residential requirement or institutional preference followed by each State Government for admission to the medical colleges situate within its territory.
It is not necessary for the purpose of the present judgement to reproduce in detail the precise domicile or residential requirement or institutional preference adopted and prevailing in different States in regard to admissions to medical colleges.
Suffice it to state that for admission to M.B.B.S. course, domicile or permanent residence is required in some States, residence for a specified number of years ranging from three to twenty years is required in some other States while in a few States the requirement is that the candidate should have studied in an educational institution in the State for a continuous period varying from four to ten years or the candidate should be a bona fide resident of one State and in case of admissions to M.D.S. Course in Uttar Pradesh the candidate should be either a citizen of India, domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh or a citizen of India, domicile of whose father may not be in Uttar Pradesh but who himself has resided in Uttar Pradesh for not less than five years at the time of making the application and so far as admissions to M.D.S. Course in Karnataka are concerned, the candidate should have studied for at least five years in an educational institution in the State of Karnataka prior to his joining B.D.S. Course.
The position in regard to admissions in medical colleges in the Union Territory of Delhi is a little different, because there, out of a total of 410 seats available for admission to the M.B.B.S. course in the three medical colleges affiliated to the Delhi university, 148 are reserved seats and 262 are non reserved seats and for filling in the 262 non reserved seats, an entrance examination is held and the first 50 seats are filled from amongst the eligible candidates who pass the entrance examination in order of merit and the remaining 212 seats are filled, again on merit, but by candidates who have passed their qualifying examination from the schools situate in the Union Territory of Delhi 963 only.
It will thus be seen that in almost all States and Union Territories admissions to medical colleges are based either on residence requirements or on institutional preferences.
The question is whether such reservations or preferences are constitutionally valid when tested on the touch stone of Article 14.
There can be no doubt that the demand for admission to medical colleges has over the last two decades increased enormously and outstripped the availability of seats in the medical colleges in the country.
Today large numbers of young men and women are clamouring to get admission in the medical colleges not only because they can find gainful employment for themselves but they can also serve the people and the available seats in the medical colleges are not sufficient to meet the increasing demand.
The proportion of medical practitioners to the population is very low compared to some other countries and there is considerable unmet need for medical services.
It is possible that in highly urbanised areas, there may be a surfeit of doctors but there are large tracts of rural areas throughout the country where competent and adequate medical services are not available.
The reason partly is that the doctors who have been brought up and educated in urban areas or who are trained in medical colleges situate in cities and big towns acquire an indelible urban slant and prefer not to go to the rural areas, but more importantly, proper and adequate facilities are not provided and quite often even necessary medicines and drugs are not supplied in rural areas with the result that the doctors, even if otherwise inclined to go to rural areas with a view to serving the people, find that they cannot be of any service to the people and this acts as a disincentive against doctors setting down in rural areas.
What is, therefore, necessary is to set up proper and adequate structures in rural areas where competent medical services can be provided by the doctors and some motivation must be provided to the doctors servicing those areas.
But, as the position stands today, there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has, there fore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14.
Now, the primary imperative of Article 14 is equal opportunity for all across the nation for education and advancement and, as pointed out by Krishna Iyer, J. in Jagdish Saran vs Union of India "this" has burning relevance 964 to our times when the country is gradually being broken up into fragments by narrow domestic walls" by surrender to narrow parochial loyalties.
What is fundamental, as an enduring value of our polity is guarantee to each of equal opportunity to unfold the full potential of his personality.
Any one anywhere, humble or high, agrestic or urban, man or woman, whatever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to any secular educational course for cultural growth, training facility, speciality or employment.
It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B.
It is axiomatic that talent is not the monopoly of the resident of any particular State; it is more or less evenly distributed and given proper opportunity and environment, every one has a prospect of rising to the peak.
What is necessary is equality of opportunity and that cannot be made dependent upon where a citizen resides.
If every citizen is afforded equal opportunity, genetically and environmentally, to develop his potential he will be able in his own way to manifest his faculties fully leading to all round improvement in excellence.
The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed.
The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizen in the country and no citizen can legitimately, without serious deteriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up.
Moreover it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India.
Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote sub standard candidates and bring about fall in medical competence, injurious 965 in the long run to the very region.
"It is no blessing to inflict quacks and medical midgets on people by whole sale sacrifice of talent at the thresh hold.
Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation.
" The primary consideration in selection of candidates for admission to the medical colleges must, therefore, be merit.
The object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students.
This was the consideration which weighed with the Court in Minor P. Rajendran vs State of Madras in striking down a rule made by the State of Madras allocating seats in medical colleges on district wise basis.
Wanchoo, C.J. Speaking on behalf of the Court, observed: "The question whether districtwise allocation is violative of article 14 will depend on what is the object to be achieved in the matter of admission to medical colleges.
Considering the fact that there is a large number of candidates than seats available, selection has got to be made.
The object of selection can only be to secure the best possible material for admission to colleges subject the provision for socially and educationally backward classes.
Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources.
If that is the object, it must necessarily follow that object would be defeated if seats are allocated district by district.
It cannot be and has not been denied that the object of selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors.
If that is the object, that argument on behalf of the petitioners appellant is that object cannot possibly be served by allocating seats districtwise.
It is true that article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification.
The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the 966 object to be achieved.
Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats districtwise has no reasonable relation with the object to be achieved.
If anything such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, in as much as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources." Then again in Periakaruppan vs State of Tamil Nadu, the same consideration prevailed with the Court in striking down the scheme of selection of candidates for admission to medical colleges in the State of Tamil Nadu for the year 1970 71.
It was a unit wise scheme under which the medical colleges in the city of Madras were constituted as one unit and each of the other medical colleges in the Mofussil was constituted as a unit and a separate selection committee was set up for each of these units.
The intending applicants were asked to apply to any one of the committees but were advised to apply to the committee nearest to their place of residence and if they applied to more than one committee, their applications were to be forwarded by the Government to only one of the committees.
The petitioners who were unsuccessful in getting admission, challenged the validity of this unit wise scheme and contended that the unit wise scheme infringed Article 14 of the Constitution, inter alia, because the applicants of some of the units were in a better position than those who applied to other units, since the ratio between the applicants and the number of seats in each unit varied and several applicants who secured lesser marks than the petitioners were selected merely because their applications came to be considered in other units.
This challenge was upheld by the Court and Hegde, J. speaking on behalf of the Court observed: "We shall first take up the plea regarding the division of medical seats on unitwise basis.
It is admitted that minimum marks required for being selected in some unit is less than in the other units.
Hence prima facie the scheme in question results in discrimination against some of the applicants.
Before a classification can be justified, it must be based on an objective criteria and further it 967 must have reasonable nexus with the object intended to be achieved.
The object intended to be achieved in the present case is to select the best candidates for being admitted to Medical Colleges.
That object cannot be satisfactorily achieved by the method adopted.
" These two decisions do not bear directly on the question raised before us, namely, whether any reservation can be legitimately made in admissions to medical colleges on the basis of residence requirement within the State or any institutional preference can be given students who have passed the qualifying examination held by the same university.
They deal with two specific instances of intra state discrimination between citizens residing within the same State and strike down such discrimination as violative of Article 14 on the ground that it has no rational relation to the object of selection, namely, to get the best and most meritorious students and, in fact, tends to defeat such object, But, in taking this view, they clearly and categorically proceed on the basis of the principle that the object of any valid scheme of admissions must be to "select the best candidates for being admitted to medical colleges" and that if any departure is to be made "from the principle of selection on the basis of merit" it must be justified on the touchstone of article 14.
But let us understand what we mean when we say that selection for admission to medical colleges must be based on merit.
What is merit which must govern the process of selection ? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor.
We agree with Krishna Iyer, J. when he says in Jagdish Saran 's case (supra): "If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears then, surely, belonging to a university catering to a deprived region is a plus point of merit.
Excellence is composite and the heart and its sensitivity are as precious in the case of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases.
" Merit cannot be measured in terms of marks alone, but human sympathies are equally important.
The heart is as much a factor as the head in assessing the social, value of a member of the medical profession.
This is also an aspect which may, to 968 the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation.
We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection based on merit.
Obviously, such departure can be justified only on equality oriented grounds, for whatever be the principle of selection followed for making admissions to medical colleges, it must satisfy the test of equality.
Now the concept of equality under the Constitution is a dynamic concept.
It takes within its sweep every process of equalisation and protective discrimination.
Equality must not remain mere idle incantation but it must become a living reality for the large masses of people.
In a hierachical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground the every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him.
We cannot countenance such a suggestion, for to do so would make that equality clause sterile and perpetuate existing inequalities.
Equality of opportunity is not simply a matter of legal equality.
Its existence depends not merely on the absence of disabilities but on the presence of abilities.
Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it.
What the famous poet Willian Blanks said graphically is very true, namely, "One law for the Lion and the Ox is oppression," Those who are unequal.
in fact.
cannot treated by identical standards; that may be equality in law but it would certainly not be real equality.
It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality Such affirmative action though apparently discriminatory is calculated to produce equality an a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful section, so that each member of the community, whatever is his births occupation or social position may enjoy equal opportunity of 969 using to the full his natural endowments of physique, of character and of intelligence.
We may in this connection usefully quote what Mathew, J. said in Ahmedabad St. Xavier 's College Society and Anr.
vs State of Gujarat.
"It is obvious that "equality in law precludes discrimination of any kind; whereas equality, in fact, may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations.
" We cannot, therefore, have arid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country.
Equality in law must produce real equality; de jure equality must ultimately find its raison d 'etre in de facto equality.
The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas.
The State must, to use again the words of Krishna Iyer.
J. in Jagdish Saran 's case (supra) weave those special facilities into the web of equality which, in an equitable setting provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity equality is not negated or neglected where special provisions are geared to the large goal of the disabled getting over their disablement consistently with the general good and individual merit.
" The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals.
There are.
in the application of this principle, two considerations which appear to have weighed with the Court in justifying departure from the principle of selection based on merit.
One is what may be called State interest and the other is what may be described as a region 's claim of backwardness.
The legitimacy of claim of State interest was recognised explicitly in one of the early decisions of this Court in D.P. Joshi 's case (supra) The Rule impugned in this case was a Rule made by the State of 970 Madhya Bharat for admission to the Mahatma Gandhi Memorial Medical College, Indore providing that no capitation fee should be charged for students who are bona fide residents of Madhya Bharat but for other non Madhya Bharat students, there should be a capitation fee of Rs. 1300 for nominees and Rs. 1500 for others.
The expression bona fide resident ' was defined for the purpose of this Rule to mean inter alia a citizen whose original domicile was in Madhya Bharat provided he had not acquired a domicile elsewhere or a citizen whose original domicile was not in Madhya Bharat but who had acquired a domicile in Madhya Bharat and had resided there for not less than five years at the date of the application for admission.
The constitutional validity of this Rule was challenged on the ground that it discriminated between students who were bona fide residents of Madhya Bharat and students who were not and since this discrimination was based on residence in the State of Madhya Bharat, it was violative of Article 14 of the Constitution.
The Court by a majority of four against one held that the Rule was not discriminatory as being in contravention of Article 14, because the classification between students who were bona fide residents of Madhya Bharat and those who were not was based on an intelligible differentia having rational relation to the object of the Rule.
Venkatarama Ayyar, J. speaking on behalf of the majority observed: "The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provisions for education within the limits of its economy.
(Vide Article 41).
The State has to contribute for the up keep and the running of its educational institutions.
We are in this petition concerned with a Medical College, and it is well known that it requires considerable finance to maintain such an institution.
If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least enure for the benefit of the State ? A concession given to the residents of the State in the 971 matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality.
The classification is thus based on a ground which has a reasonable relation to the subject matter of the legislation, and is in consequence not open to attack.
It has been held in The State of Punjab vs Ajab Singh and Anr.
that a classification might validly be made on a geographical basis.
Such a classification would be eminently just and reasonable, where it relates to education which is the concern, primarily of the State.
The contention, therefore, that the rule imposing capitation fee is in contravention of Article 14 must be rejected." (emphasis supplied) It may be noted that here discrimination was based on residence within the State of Madhya Bharat and yet it was held justified on the ground that the object of the State in making the Rules was to encourage students who were residents of Madhya Bharat to take up the medical course so that "some of them might, after passing out from the college, settle down as doctors and serve the needs of the locality" and the classification made by the Rule had rational relation to this object.
This justification of the discrimination based on residence obviously rest on the assumption that those who were bona fide residents of Madhya Bharat would after becoming doctors settle down and serve the needs of the people in the State.
We are not sure whether any facts were pleaded in the affidavits justifying this assumption but the judgment of Venkatarama Ayyar, J. show that the decision of the majority Judges proceeded on this assumption and that was regarded as a valid ground justifying the discrimination made by the impugned Rule.
We may point out that in Minor P. Rajendran 's case (supra) also, an argument was put forward on behalf of the State Government that if selection was made district wise, those selected from a district were likely to settle down as practitioners in that districts so that the districts were likely to benefit from their training.
But this argument was rejected by the Court and district wise admission to medical colleges was struck down as constitutionally invalid.
It is significant to note that the Court did not reject this argument as intrinsically irrelevant but the only ground on 972 which it was rejected was that "it was neither pleaded in the counter affidavit of the State nor had the State placed any facts or figures justifying the plea that students selected district wise would settle down as medical practitioners in the respective district where they resided".
It would be interesting to speculate what court would have decided if the State Government had placed sufficient material before the court showing that students coming from different districts in the State ordinarily settle down as medical practitioners in the respective districts from where they come.
This Court also upheld reservation based on residence requirement for a period of not less than ten years, for admission to medical colleges in the then State of Mysore, The Rule which was impugned in that case was Rule 3 of the Rules for selection of candidates for admission to the professional course leading to MBBS course in the Government Medical Colleges in the then State of Mysore and this Rule provided that "no person who is not a citizen of India and who is not domiciled and resident in the State of Mysore for not less than ten years at any time prior to the date of the application for a seat, shall be eligible to apply.
" The petitioner 's application for admission was rejected on the ground that she had not resided in the State for a period of ten years as required by Rule 3 and she consequently challenged the constitutional validity of that Rule on the plea that it violated the right to equality guaranteed by Article 14.
The challenge was however negatived and the constitutional validity of Rule 3 was upheld by a 3 Judge Bench of this Court.
The Court relied upon the decision in D.P. Joshi 's case (supra) and observed: "If classification based on residence does not impinge upon the principle of equality enshrined in article 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia.
The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the 973 inhabitants of the State of Mysore.
It is true that it is possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizens to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise.
But these possibilities are permissible and inherent in our constitutional set up and these considerations cannot adversely affect the constitutionality of the otherwise valid rule.
The problem as noticed in minor P. Rajendran 's case and as revealed by a large number of cases which have recently come to this Court is that the number of candidates desirous of having medical education is very much larger than the number of seats available in medical colleges.
The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people.
The State has therefore to formulate with reasonable foresight a just schemes of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad based medical aid to the people of the State and to provide medical education to those who are best suited for such education.
Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating article 14.
The impugned rule has not been shown by the petitioner to suffer from the vice of unreasonableness.
The counter affidavit filed by the State on the other hand discloses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them.
" Here also reservation based on residence requirement of not less than ten years was held to be non discriminatory though it denied equality of opportunity for admission to the medical colleges in the State to all those who did not satisfy this residence requirement.
The Court took the view that the object of the State Government in making such reservation based on residence requirement of not less than ten years was to "impart medical 974 education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State".
The principle of selection based on merit across the board was thus allowed to be modified by the claim of State interest in providing broad based medical aid to the people of the State" and reservation based on residence requirement of not less than ten years was upheld as a valid reservation.
We find an choice of the same reasoning in the following words from the judgment of Dua, J. in D.N. Chanchala vs State of Mysore. "the object of selection for admission to the medical colleges considered in the background of the Directive Principles of State Policy contained in our Constitution, appears to be to select the best material from amongst the candidates in order not only to provide them with adequate means of livelihood but also to provide the much needed medical aid to the people and to improve public health generally" (Emphasis supplied) The claim of State interest in providing adequate medical service to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as doctors has thus been regarded by the Court as a legitimate ground for laying down residence requirement for admission to medical colleges in the State.
We may also conveniently at this stage refer to the decision of this Court in D.N. Chanchala 's case (supra).
The reservation impugned in this case was university wise reservation under which preference for admission to a medical college run by a university was given to students who had passed the PUC examination of that university and only 20 per cent of the seats were available to those passing the PUC Examination of other universities.
The petitioner who had passed PUC examination held by the Bangalore university, applied for admission to any one of the medical colleges affiliated to the Karnataka University.
But she did not come within the merit list on the basis of which 20 per cent of 975 the open seats were filled up and since she had not passed the PUC Examination held by the Karnataka University, her application for admission to a medical college affiliated to the Karnataka University, was rejected.
She therefore filed a writ petition under Article 32 of the Constitution contending inter alia that the University wise distribution of seats was discriminatory and being without any rational basis was violative of Article 14.
This contention was however rejected by a 3 Judge Bench of this Court.
Shelet, J. speaking on behalf of the Court held that there was no constitutional infirmity involved in giving preference to students who had passed the PUC Examination of the same University and gave the following reasons in support of this conclusion: "The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas.
Obviously one university for the whole of the State could neither have been adequate nor feasible to satisfy those needs.
Since it would not be possible to admit all candidates in the medical colleges run by the Government, some basis for screening the candidates had to be set up.
There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centres for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise.
Since the Universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities.
In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities.
Such a basis for selection has not the disadvantage of districtwise or unitwise selection as any student from any part of the State can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence.
Further, the rules confer a discretion on the selection committee to admit 976 outsiders upto 20% of the total available seats in any one of these colleges, i.e., those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India.
It is, therefore, impossible to say that the basis of selection adopted in these rules would defeat the object of the rules as was said in Rajendran 's case or make possible less meritorious students obtaining admission at the cost of the better candidates.
The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one.
As a well known, different universities have different standards in the examinations held by them.
A preference to one attached to one university in its own institutions for post graduate or technical training is not uncommon.
Rules giving such a preference are to be found in various universities.
Such a system for that reason alone is not to be condemned as discriminatory, particularly when admission to such a university by passing a qualifying examination held by it is not precluded by any restrictive qualifications, such as birth or residence, or any other similar restrictions.
In our view, it is not possible to equate the present basis for selection with these which were held invalid in the aforesaid two decisions.
Further, the Government which bears the financial burden of running the Government colleges if entitled to lay down criteria for admission would be made, provided of course such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules.
So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged.
In our view, the rules lay down a valid classification.
Candidates passing through the qualifying examination held by a university from a class by themselves as distinguished from those passing through such examination from the other two universities.
Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies.
In our opinion, the 977 rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Article 14." University wise distribution of seats was thus upheld by the Court as constitutionally valid even though it was not in conformity with the principle of selection based on merit and marked a departure from it.
The view taken by the court was that university wise distribution of seats was not discriminatory because it was based on a rational principle.
There was nothing unreasonable in providing that in granting admissions to medical colleges affiliated to a university, reservation shall be made in favour of candidates who have passed PUC examination of that university, firstly, because it would be quite legitimate for students who are attached to a university to entertain a desire to "have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own" university since that promote institutional continuity which has its own value and secondly, because any student from any part of the country could pass the qualifying examination of that university, irrespective, of the place of his birth or residence.
The second consideration which has legitimately weighed with the courts in diluting the principle of selection based on merit is the claim of backwardness made on behalf of any particular region.
There have been cases where students residing in a backward region have been given preferential treatment in admissions to medical colleges and such preferential treatment has been upheld on the ground that though apparently discriminatory against others, it is intended to correct the imbalance or handicap from which the students from the backward region are suffering and thus bring about real equality in the larger sense.
Such preferential treatment for those residing in the backward region is designed to produce equal opportunity on a broader basis by providing to neglected geographical or human areas an opportunity to rise which they would not have if no preferential treatment is given to them and they are treated on the same basis as others for admissions to medical colleges, because then they would never be able to compete with others more advantageously placed.
If creatively and imaginatively applied, preferential treatment based on residence in a backward region can play a significant role in reducing uneven levels of development and such 978 preferential treatment would presumably satisfy the test of Article 14, because it would be calculated to redress the existing imbalance between different regions in the State.
There may be a case where a region is educationally backward or woefully deficient in medical services and in such a case there would be serious educational and health service disparity for that backward region which must be redressed by an equality and service minded welfare State.
The purpose of such a policy would be to remove the existing inequality and to promote welfare based equality for the residents of the backward region.
If the State in such a case seeks to remove the absence of opportunity for medical education and to provide competent and adequate medical services in such backward region by starting a medical college in the heart of such backward region and reserves a high percentage of seats there to students from that region, it may not be possible to castigate such reservation or preferential treatment as discriminatory.
What is directly intended to abolish existing disparity cannot be accused of discrimination.
Krishna Iyer, J. said to the same effect when he observed in Jagdish Saran 's case at page 856 of the Report: "We have no doubt that where the human region from which the alumni of an institution are largely drawn is backward, either from the angle of opportunities for technical education or availability of medical services for the people, the provision of a high ratio of reservation hardly militates against the equality mandate viewed in the perspective of social justice.
" This was precisely the ground on which, in the State of Uttar Pradesh vs P. Tandon this Court allowed reservation in medical admissions for people of the hill and Uttarakhand areas of the State of U.P. on the ground that those areas were socially and educationally backward.
Similarly, the Andhra Pradesh High Court in Devi vs Kakatie Medical College, held that preferential treatment of Telangana students in medical admissions was justified since "Kakatiya Medical College was started for the spread of medical education mainly for Telangana region.
which is educationally backward in the State.
If in view of this object, provision is made to cater to the educational needs mainly of that particular region, as it badly 979 requires such assistance, it cannot be said that the object to be achieved has on relation to the classification made by giving larger representation to the Andhra region.
The increase in the Telangana quota is consistent with and promotes and advances the object underlying the establishment of the institution.
" We are however not concerned here with a case of reservation or preference for persons from a backward region within a State and we need not therefore dwell any longer upon it.
It will be noticed from the above discussion that though intra state discrimination between persons resident in different districts or regions of a State has by an large been frowned upon by the court and struck down as invalid as in Minor P. Rajendran 's case (supra) and Perukaruppan 's case (supra), the Court has in D.N. Chanchalla 's case and other similar cases up held institutional reservation effected through university wise distribution of seats for admission to medical colleges.
The Court has also by its decisions in D.P. Joshi 's case and N. Vasundhara 's case (supra) sustained the constitutional validity of reservation based on residence within a State for the purpose of admission to medical college.
These decisions which all relate to admission to MBBS course are binding upon us and it is therefore not possible for us to hold, in the face of these decisions, that residence requirement in at State for admission to MBBS course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity contained in Article 14 We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence requirement in a State can be introduced as a condition for admission to the MBBS course.
It is of course true that the Medical Education Review Committee established by the Government of India has in its report recommended after taking into account all relevant considerations, that the "final objective should be to ensure that all admissions to the MBBS course should be open to candidates on an All India basis without the imposition of existing domiciliary condition," but having regard to the practical difficulties of transition to the stage where admissions to MBBS course in all medical colleges would be on All India Basis, the medical Education Review Committee has suggested "that to begin with not less than 25 per cent seats in each institution may be open to candidates on all India basis.
" We are not all sure whether at 980 the present stage it would be consistent with the mandate of equality in its broader dynamic sense to provide that admissions to the MBBS course in all medical colleges in the country should be on all India basis.
Theoretically, of course, if admissions are given on the basis of all India national entrance examination, each individual would have equal opportunity of securing admission, but that would not take into account diverse consideration, such as, differing level of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all India basis get admission to the MBBS course in another region far remote from their own and other allied factors.
There can be no doubt that the policy of ensuring admissions to the MBBS course on all India basis is a highly desirable policy, based as it is on the postulate that India is one national and every citizen of India is entitled to have equal opportunity for education and advancement, but it is an ideal to be aimed at and it may not be realistically possible.
in the present circumstances, to adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities a situation which simply does not exist in the country today.
There are massive social and economic disparities and inequalities not only between the States and States but also between region and region within a state and even between citizens and citizens within the same region.
There is a yawning gap between the rich and the poor and there are so many disabilities and injustices from which the poor suffer as a class that they cannot avail themselves of any opportunities which may in law be open to them.
They do not have the social and material resources to take advantage of these opportunities which remain merely on paper recognised by law but non existent in fact.
Students from backward States or regions will hardly be able to compete with those from advanced States or regions because, though possessing an intelligent mind, they would have had no adequate opportunities for development so as to be in a position to compete with others.
So also students belonging to the weaker sections who have not, by reason of their socially or economically disadvantaged position, been able to secure education in good schools would be at a disadvantage compared to students 981 belonging to the affluent or well to do families who have had the best of school education and in open All India Competition, they would be likely to be worsted.
There would also be a number of students who, if they do not get admission in a medical college near their residence and are assigned admission in a far off college in another State as a result of open All India competition, may not be able to go to such other college on account of leak of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursing the medical course even though on paper they would have got admission in a medical college.
It would be tantamount to telling these students that they are given an opportunity of taking up the medical course, but if they cannot afford it by reason of the medical college to which they are admitted being far away in another State, it is their bad luck: the State cannot help it, because the State has done all that it could, namely, provide equal opportunity to all for medical education.
But the question is whether the opportunity provided is real or illusory? We are therefore of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality.
The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State and for this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to the Central Board of Secondary Education, It would be constitutionally permissible to provide, as an interim measure until we reach the stage when we can consistently with the broad mandate of the rule of equality in the larger sense; ensure admissions to the M.B.B.S, course on the basis of national entrance examination an ideal which we must increasingly strive to reach for reservation of a certain percentage of seats in the medical colleges for students satisfying a prescribed residence requirement as also for students who have passed P.U.C. or pre medical examination or any other qualifying examination held by the university or the State and for this purpose it should make no difference whether the qualifying examination is conducted by the State Board or by the Central Board of Secondary Education, because no discrimination can be made between schools affiliated 982 can be made between schools affiliated to the Central Board of Secondary Education.
We may point out that at the close of the arguments we asked the learned Attorney General to inform the court as to what was the stand of the Government of India in the matter of such reservation and the learned Attorney General in response to the inquiry made by the Court filed a policy statement which contained the following formulation of the policy of the Government of India: "Central Government is generally opposed to the principle of reservation based on domicile or residence for admission to institution of higher education, whether professional or otherwise.
In view of the territorially articulated nature of the system of institutions of higher learning including institutions of professional education, there is no objection, however, to stipulating reservation or preference for a reasonable quantum in under graduate courses for students hailing from the school system of educational hinterland of the institutions.
For this purpose, there should be no distinction between schools affiliated to CBSC.
" We are glad to find that the policy of the Government of India in the matter of reservation based on residence requirement and institutional preference accords with the view taken by us in that behalf.
We may point out that even if at some stage it is decided to regulate admissions to the M.B.B.S. course on the basis of All India Entrance Examination, some provision would have to be made for allocation of seats amongst the selected candidates on the basis of residence or institutional affiliation so as to take into account the aforementioned factors.
The only question which remains to be considered is as to what should be the extent of reservation based on residence requirement and institutional preference.
There can be no doubt that such reservation cannot completely exclude admission of students from other universities and States on the basis of merit judged in open competition.
Krishna lyer, J. rightly remarked in Jagdish Saran 's case (supra) at page 845 and 846 of the Report: "Reservation must be kept in check by the demands 983 of competence.
You cannot extend the shelter of reservation where minimum qualifications are absent, Similarly, all the best talent cannot be completely excluded by wholesale reservation.
So a certain percentage which may be available, must be kept open for meritorious performance regardless of university, State and the like.
Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the alter of equalisation when the Constitution mandates for every one equality before and equal protection of the law may be fatal folly, self defeating educational technology and anti national if made a routine rule of State policy.
A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit such is the dynamics of social justice which animates the three egalitarian articles of the Constitution.
" We agree wholly with these observations made by the learned Judge and we unreservedly condemn wholesale reservation made by some of the State Governments on the basis of 'domicile ' or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit.
We declare such wholesale reservation to be unconstitutional and void as being in violation of Article 14 of the Constitution.
But, then to what extent can reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the university or the state be regarded as constitutionally permissible? It is not possible to provide a categorical answer to this question for, as pointed out by the policy statement of Government of India, the extent of such reservation would depend on several factors including opportunities for professional education in that particular area, the extent of competition, level of educational development of the area and other relevant factors.
It may be that in a State were 984 the level of educational development is woefully low, there are comparatively inadequate opportunities for training in the medical speciality and there is large scale social and economic backwardness, there may be justification for reservation of a higher percentage of seats in the medical colleges in the State and such higher percentage may not militate against "the equality mandate viewed in the perspective of social justice".
So many variables depending on social and economic facts in the context of educational opportunities would enter into the determination of the question as to what in the case of any particular State, should be the limit of reservation based on residence requirement within the State or on institutional preference.
But, in our opinion, such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made.
The Medical Education Review Committee has suggested that the outer limit should not exceed 75 per cent but we are the view that it would be fair and just to fix the outer limit at 70 per cent.
We are laying down this outer limit of reservation in an attempt to reconcile the apparently conflicting claims of equality and excellence.
We may make it clear that this outer limit fixed by us will be subject to any reduction or attenuation which may be made by the Indian Medical Council which is the statutory body of medical practitioners whose functional obligations include setting standards for medical education and providing for its regulation and coordination.
We are of the opinion that this outer limit fixed by us must gradually over the years be progressively reduced but that is a task which would have to be performed by the Indian Medical Council.
We would direct the Indian Medical Council to consider within a period of nine months from today whether the outer limit of 70 per cent fixed by us needs to be reduced and if the Indian Medical Council determines a shorter outer limit, it will be binding on the States and the Union Territories.
We would also direct the Indian Medical Council to subject the outer limit so fixed to reconsideration at the end of every three years but in no event should the outer limit exceed 70 per cent fixed by us.
The result is that in any event at least 30 per cent of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit on the basis of either all India Entrance Examn.
or entrance examination to be held by the State.
Of 985 course, we need not add that even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directions given in this judgment, admissions from the source or sources indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious student from within such source or sources.
So much for admission to the M.B.B.S. course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to post graduate courses, such as, M.D., M.S. and the like.
There we cannot allow excellence to be compromised by any other considerations because that would be deterimental to the interest of the nation.
It was rightly pointed out by Krishna Iyer, J. in Jagdish Saran 's case, and we wholly endorse what he has said: "The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scale of speciality here the best skill or talent, must be handpicked by selecting according to capability.
At the level of Ph. D., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the considerations we have expended upon as important loss their potency.
Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk." "If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks then another is entitled to preference for admission.
Merit must be the test when choosing the best, according to this rule of equal chance for equal marks.
This proposition has greater importance when we reach the higher levels of education like post graduate courses.
After all, top technological expertise in any vital field like medicine is a nation 's human asset without which its advance and development will be stunted.
The role of high grade skill or special talent may be less 986 at the lesser levels of education, jobs no disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment.
To devalue merit at the summit is to temporise with the country 's development in the vital areas of professional expertise.
In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation 's talent lying latent can produce.
If the best potential in these fields is cold shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves.
Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless." "Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post graduate or post doctoral courses in specialised subjects.
There is no substitute for sheer flair, for creative talent, for fine tune performance at the difficult highest of some disciplines where the best alone is likely to blossom as the best.
To sympathise mawkishly with the weaker sections by selecting substandard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service.
Even the poorest, when stricken by critical illness, needs the attention of super skilled specialists, not humdrum second rates.
So it is that relaxation on merit, by over ruling equality and quality all together, is a social risk where the stage is post graduate or post doctoral." These passages from the judgment of Krishna Iyer, J. clearly and forcibly express the same view which we have independently reached on our own and in deed that view has been so ably expressed in these passages that we do not think we can usefully 987 add anything to what has already been said there.
We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to post graduate courses are concerned, for pampering local feeling, will boomeriang.
We may with advantage reproduce the recommendation of the Indian Medical Council on this point which may not be the last word in social wisdom but is certainly worthy of consideration: "Student for post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course.
All selection for post graduate studies should be conducted by the Universities.
" The Medical Education Review Committee has also expressed the opinion that "all admissions to the post graduate courses in any institution should be open to candidates on an all India basis and there should be no restriction regarding domicile in the State/UT in which the institution is located.
" So also in the policy statement filed by the leaned Attorney General, the Government of India has categorically expressed the view that: "So far as admissions to the institutions of post graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all India merit subject to constitutional reservations in favour of Scheduled Castes and Scheduled Tribes.
" We are therefore of the view that so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference.
But, having regard to border considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B.S. course from a medical college or university may be given preference for admission to the post graduate course in the same medical colleges or university but 988 such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course.
This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course.
But, even in regard, to admissions to the post graduate course, we would direct that so far as super specialities such as neuro surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.
What we have said about in regard to admissions to the M.B.B.S. and post graduate courses must apply equally in relation to admissions to the B.D.S. and M.D.S. courses.
So far as admissions to the B.D.S. and M.D.S. courses are concerned, it will be the Indian Dental Council which is the statutory body of dental practitioners, which will have to carry out the directions given by us to the Indian Medical Council in regard to admissions to M.B.B.S. and post graduate courses.
The directions given by us to the Indian Medical Council may therefore be read as applicable mutatis mutandis to the Indian Dental Council so far as admissions to BDS and MDS courses are concerned.
The decisions reached by us in these writ petitions will bind the Union of India, the State Governments and Administrations of Union Territories because it lays down the law for the entire country and moreover we have reached this decision after giving notice to the Union of India and all he State Governments and Union Territories.
We may point out that it is not necessary for us to give any further directions in these writ petitions in regard to the admissions of the petitioners in the writ petitions, because the academic term for which the admissions were sought has already expired and so far as concerns the petitioners who have already been provisionally admitted, we have directed that the provisional admissions given to them shall not be disturbed but they shall be treated as final admissions.
The writ petitions and the civil appeal will accordingly stand disposed of in the above terms.
There will be no order as to costs in the writ petitions and the civil appeal.
989 AMARENDRA NATH SEN, J. have had the advantage of reading the judgment of my learned brother, Bhagwati, J.
I agree with the orders passed by my learned brother and also the directions given by him.
I, however, propose to indicates in brief my own reasons.
My learned brother in his judgment has referred to various aspects of national life and has very aptly emphasise on the need of Unity of India.
My learned brother in his judgment has set out the relevant facts and circumstances and has also considered the relevant decisions on the question involved in the present proceedings.
Unity in diversity is the essential peculiarity of Indian culture and constitutes the basic philosophy of Indian nationality.
It is also a fundamental tenet of our constitution which seeks to promote the unity while maintaining at the same time the distinctiveness of the various classes and kinds of people belonging to different States forming the Indian Nation.
Equality in the eye of law is the fundamental postulates and is guaranteed under the Constitution.
Each and every kind of discrimination is not in violation of the Constitutional concept of equality and does not necessarily undermine the Unity of India.
The validity of any discrimination has to be tested on the touchstone of article 14 of the Constitution.
Appropriate classification may in very many cases from the vary core of equality and promote unity in the true sense amidst diversity.
To my mind the questions involved in these proceedings lies within a short compass.
The first question relates to reservation of seats for admission to Medical Colleges in any State on the basis of residence of the applicant in the State for such admission.
Connected with this question is the question of institutionalised reservation of seats for admission to Medical Colleges.
The other question raised is the question of reservation of seats on such considerations for admission to post graduate medical courses.
The question of constitutional validity of reservation of seats within reasonable limits on the basis of residence and also the question of institutionalised reservation of seats clearly appear 990 to be concluded by various decisions of this Court, as has rightly pointed out by my learned brother in his judgment in which he has referred at length to these decisions.
These decisions are binding on this Court and are to be followed.
Constitutional validity of such reservations within the reasonable limit must, therefore, be upheld.
The real question is the question of the extent of the limit to which such reservations may be considered to be reasonable.
The question of reasonableness of such reservations must necessarily be determined with reference to the facts and circumstances of particular cases and with reference to the situation prevailing at any given time.
My learned brother in his judgment has elaborately and carefully considered these aspects.
On a careful consideration of all the facts and circumstances and the materials placed, my learned brother has proposed appropriate orders and has given necessary directions in this regard.
The orders passed by my learned brother and the directions given by him on a consideration of the materials on record and the earlier decisions of this Court will serve the cause of justice, meet the requirements of law and will not affect or undermine national unity.
I am, therefore, in entire agreement with the orders passed and directions given by him in this regard.
On the question of admission to post graduate medical courses I must confess that I have some misgivings in my mind as to the further classification made on the footings of supper specialities.
Both my learned brothers, however, agree on this.
Also in a broader perspective this classification my serve the interests of the nation better, though interests of individual States to a small extent may be affected.
This distinction in case of super specialities proceeds on the basis that in these very important spheres the criterion for selection should be merit only without institutionalised reservations or any reservation on the ground of residence.
I also agree that the orders and directions proposed in regard to admission to MBBS and post graduate courses are also to be read as applicable mutatis mutandis in relation to admission to BDS and MDS courses.
The problem of admission to medical colleges and the post graduate medical studies can only be properly and effectively solved by the setting up of more medical colleges and by increas 991 ing the number of seats in such colleges to enable aspirants to have their aim of being qualified as medical practitioners and specialists in various subjects achieved.
The same is also the position with regard to BDS and MDS courses.
This aspect has been very appropriately noticed by my learned brother in his judgment.
ORDER With these observations I agree with the orders passed and the directions given by my learned brother Bhagwati, J. Some of the students seeking admission to the MBBS course in this academic year have made an application to this Court that the Judgment delivered on 22nd June, 1984 in the medical admission cases may be given effect to only from the next academic year, because admissions have already been made in the medical colleges attached to some of the Universities in the country prior to the delivery of the judgment on 22nd June, 1984 and moreover some time would be required for the purpose of achieving uniformity in the procedure relating to admissions in the various Universities.
We accordingly issued notice on the application to the learned advocates who had appeared on behalf of the various parties at the hearing of the main writ petitions as also to the Attorney General and after hearing them, we have come to the conclusion and this is accepted by all parties that in view of the fact that all formalities for admission, including the holding of entrance examination, have been completed in some of the States prior to the judgment dated 22 6 1984 and also since some time would we required for making the necessary preparations for implementing the judgment, it is not practicable to give effect to the judgment from the present academic year and in fact compelling some States to give effect to the judgment from the present academic year when others have not, would result in producing inequality and if all the States were to be required to implement the judgment immediately, admissions already made would have to be cancelled and fresh entrance examinations would have to be held and this would require at least 2 or 2 1/2 months delaying the commencement of the academic term apart from causing immense hardship to the students.
We therefore direct that the judgment shall be implemented with effect from the next academic year 1985 86.
Whatever admissions, provisional or otherwise, have been made for the academic year 1984 85, shall not be disturbed on the basis of the judgment.
We may make it clear that the judgment will not apply to the States of Andhra Pradesh and Jammu & Kashmir because at the 992 time of hearing of the main writ petitions, it was pointed out to us by the learned advocates appearing on behalf of those States that there were special Constitutional provisions in regard to them which would need independent consideration by this Court.
| In a suit filed in the High Court for a declaration and relief in respect of several properties, the Official Receiver of the High Court was appointed Receiver.
On the request of the parties, the official Receiver, decided to sell one of the properties with the permission of the Court.
The price of the property was fixed at Rs. 3.5 lakhs.
The appellant offered a sum of Rs. 4 lakhs for purchase of the property, and by his advocate 's letter enclosed a draft for Rs. 1 lakh, being 1/4 of the amount.
A meeting was held in the presence of the plaintiff and their counsel, and at the meeting the offer received from the appellant was considered and it was decided that the offer of Rs. 4 lakh by bank draft.
The Official Receiver accepted the offer of the appellant, communicated the acceptance and requested the appellant to deposit the balance amount.
The Official Receiver, thereafter moved the High Court for directions to remove respondents 1 to 4 on the ground that they had trespassed into the property a few months earlier.
Respondents 1 to 4 moved an application for being impleaded in the suit and contended that they were residing with their families under a licence since 1975 and had constructed pucca huts thereon and that with the knowledge of this continuous possession, the parties to the suit have filed the suit among themselves without impleading them (respondents 1 to 4).
583 The Single Judge rejected the aforesaid contentions of respondents 1 to 4 and held that though they were prepared to offer the sum of Rs. 1 lakh more than the appellant the property could not be sold to them.
The Division Bench, however allowed their appeal, directed respondents 1 to 4 to pay to the Official Receiver a sum of Rs. 1.25 lakhs immediately and the balance of Rs. 3.75 lakhs thereafter and on such payment ordered sale of the disputed property to respondents 1 to 4 and their 34 nominees on the ground that the Court should do social justice and in doing such justice no technicality of law would stand in its way.
Dismissing the Appeal to this Court, ^ HELD: [Per Fazal Ali & Sabyasachi Mukharji, JJ Majority] In administering justice social or legal jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human beings as human beings.
The Division Bench of the High Court had adopted the above approach, and no law is breached by the view taken by it.
It is improper for this Court in exercise of the discretion vested under article 136 of the Constitution to interfere with that decision.
[595 FG; 622A B] [Per Fazal Ali, J.] 1.
In our opinion, there appears to be some misapprehension about what actually social justice is.
There is no ritualistic formula or any magical charm in the concept of social justice.
All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society.
Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody.
If such a thing can be done then indeed social justice must prevail over any technical rule.
It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party.
Living accommodation is a human problem for vast millions in our country.[595B D] 2.
Call it social justice or solving a socioeconomic problem or give it any other name or nomenclature, the fact of the matter is that this was the best course in the circumstances that could have been adopted by the court.
Justice social, economic and political is preamble to our Constitution.
Administration of justice can no longer be merely protector of legal rights but must whenever possible be dispenser of social justice.
[595H 596A] 4.
The Division Bench of the High Court has done substantial justice by throwing aboard the technicalities particularly for the reason that courts frown over a champartous litigation or agreement even though the same may be valid.
The Division Bench by its decision got more 584 money for the owners on the one hand and one the other sought to rehabilitate the 38 families of the respondent who had already built permanent structures.
[597G H] In the instant case, the Division Bench was perfectly justified in accepting the offer of the respondents because: (a) the respondents were prepared to pay Rs. 1 lakh more than the appellant and the appellant did not pay the balance of Rs. 3 lakhs, (b) possession being 9/10th of title, the respondents being in actual possession would have no difficulty in becoming the owners, (c) respondents were prepared to purchase the property notwithstanding litigation, because if they became owners no one could challenge their title or possession.
The Single Judge completely ignored two material aspects: (a) that a bulk of the consideration money viz. Rs. 3 lakhs out of Rs. 4 lakhs was not paid by the appellant, and (b) that an owner also has right to impose certain conditions, and in exercise of that, the condition that the purchase would have to buy the land subject to the pending litigation was imposed [579C F; 5 6A D] (Per Varadarajan, J. dissenting) 1.
The Division Bench had no right or justification to alter or modify the earlier order made for the sale of the property which had become final, or to hold that a subsequent offer made by respondents 1 to 4 to purchase the property for Rs. 5 lakhs should be accepted merely because it appears to be advantageous to the owners of the property in the name of social justice.
[612F] 2.
The benefit claimed on behalf of respondents 1 to 4 which cannot called a right, for there is no corresponding obligation cannot be equated with or even brought anywhere near the social justice mentioned in the preamble of the Constitution.
[612G] 3.
Respondents 1 to 4 are trespassers in respect of the property which is in custodia legis and they are in contempt of the Court.
They cannot be allowed to continue to be in contempt and urge it as a ground for obtaining the benefit of the sale of the property in their favour.
If the appellant has not complied with any condition it may be ground for the owners and the Official Receiver not to accept his offer and refuse to sell the property to him and not for respondents 1 to 4 to raise any objection.
The offer has been accepted rightly or wrongly more than once and there fore the appellant may have a right to sue for specific performance of the contract on the basis of that acceptance by the official Receiver given with the approval of the parties.
The same is the position in regard to the delay of about a month in paying the balance of Rs.3 lakhs by the appellant.
[611D F] In the instant case, the property has been agreed to be sold by private treaty and the Official Receiver has been authorised to sell the property either by public auction or by private treaty.
The Court does not come into the picture in such a case and there is no need for the Court to approve 585 or confirm such sale.
The parties who are sui juris must be deemed to have known their interest best when they chose to approve the sale of the property for Rs. 4 lakhs in favour of the appellant notwithstanding the fact that respondents 1 to 4 had offered to purchase the property for Rs.5 lakhs.
The appeal has therefore to be allowed.
[612E; 613B] Everest Coal Company (P) Ltd vs State of Bihar & Others, [1974] 1 SCR P. 571 at P. 573, Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd & Others, [1974] 3 SCR P. 678, Jibon Krishna Mukherjee vs New Bhee bhum Coal Co. Ltd. & Apr., [1960] 2 SCR P. 198.
Tarinikamal Pandit & Others vs Prafulla Kumar Chatterjee, [1979] 3 SCR P. 340, referred to.
(Per Sabyasachi Mukherji, J) 1.
The pendency of the proceedings under Section 145 of the Code of Criminal procedure and order, if any, passed thereon does not in any way affect the title of the parties to the disputed premises though it reflects the factum of possession.
[616D] Bhinka and Others vs Charan Singh, [1959] Supp. 2 S.C.R. P.798 referred to.
When the property is in custody of a receiver appointed by the court, the property is in the custody of the court and interference with such possession should not be encouraged and no party can acquire any title or right by coming in or over the property which is in the possession of the receiver or sanction of the court[618F] Halsbury 's Laws of England, 4th Edn., Vol, 39 pages 451,452 paragraph 890,891: Kerr On Receivers 16th Edn.
pages 121 referred to.
The concept to social justice is not foreign to legal justice or social well being or benefit to the community rooted in the concept of justice in the 20th century.
The challenge of social justice is primarily a challenge to the society at large more than to the court immediately.
Social justice is one of the aspirations of our Constitution.
But the courts, are pledged to administer justice as by law established.[620F] In the instant case, in formulating the concept of justice, however, the inarticulate factor that large number of human beings should not be dislodged from their possession if it is otherwise possible to do so cannot but be a factor which must and should influence the minds of judges.
It is true that the persons who were alleged to be in possession are with unclean hands, but they came for shelter and built in hutments.
They do not want to be rehabilitated at competitive bargain price.
In the circumstances they should not be denied rehabilitation on the ground of their original illegitimacy.
The felt necessities of time and in this case the convenience of the situation and the need for adjusting the rights of a larger number of 586 people without deprivation of any accrued right of anybody would be justice according to law.
Before social justice as something alien to legal justice, is rejected, it should be remembered that a meaningful definition of the rule of law must be based on the realities of contemporary societies and the realities and the realities of the contemporary societies are men are in acute shortage of living accommodation and if they are prepared to bargain and rehabilitate themselves on competitive terms, they should be encouraged and no technical rules should stand in their way.
That would be justice by highways ' and not infiltration 'by bye lanes '.
[621H 622B]
|
Appeals Nos.
1186 1188 of 1972.
Appeals by special leave from the Judgment and Order (fated 12/ 13/15th October, 1971 of the Bombay High Court in Special Civil Application Nos. 555, 556 of 1967 and 72 of 1968.
K. section Cooper, M. K. Shah, P. H. Parekh and Sunanda Bhandare, for the appellants.
B. N. Lokur, Rameshwar Nath, for respondent No. 1.
Subodh Markendeya, for Respondent No. 2.
The Judgment of the Court was delivered by SARKARIA, J.
Whether the principle of apportionment is applicable to the fixation of standard rent of a premises under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, the Act); if so whether on the facts of the case, the principle has been rightly invoked is the two fold question that falls for decision in these three appeals by special leave directed against the judgment of the High Court of Judicature at Bombay.
The material facts are as under A big compound, measuring 11,150 sq.
yards, at 156 Tardeo Road, Bombay, belonged to Raja Bahadur Moti Lal Mills, Ltd., Bombay, appellant No.1.
The Mills were shifted from these premises in the year 1930.
In 1932, the whole of this estate including the structures standing on.
a part of it, was let out to Sound Studios Ltd. Between the years 1932 and 1940, some part of it was sub let by Sound Studios to Sheraj Ali, who was the proprietor of M/s. Famous 579 Cine Laboratory and another part to Neon Signs (India) Ltd., and the rest of the estate continued to be with Sound Studios.
Thereafter, Sound Studios went out of the picture and the whole estate was let out to National Studios Ltd. on October 23, 1940 at a monthly rent of Rs. 1700/ for a period of two years.
In July 1941, National Studios surrendered their lease and Sheraj Ali became a direct tenant under appellant 1 in respect of the premises in his possession, called for the sake of identification, 983/1 (whole) and 983/2 (Ground floor).
On December 1, 1941 and again in November 1942, Sheraj Ali took on rent additional portions of this estate so that his original rent, which was Rs. 400/ , was first increased to Rs. 600/and then to Rs. 700/ and thereafter in November 1942 to Rs. 875/ .
By November 1947, Sheraj Ali was paying Rs. 1200/ per month as rent for the premises demised to him including some new structures which had been built.
Sheraj Ali had taken a loan from M/s. Govind Ram Bros. Ltd., Respondent 1 on the security of his Film Studio Equipments.
He failed to repay the loan.
Thereupon, Respondent 1 instituted a suit for recovery of the amount and obtained a decree from the High Court,.
on February 27,1948.
As a result of the High Court 's decree, the right, title and interest of Sheraj Ali in the mortgaged property were assigned to Respondent 1.
Respondent 1, in consequence, took a fresh lease on March 19,1948 from appellant No. 1 of the, properties (called for identification) 983/1 to 983/12, which were in the tenancy of Sheraj Ali ', at a contractual rent of Rs. 1228/ p.m.
On the same date, Respondent 1 executed another lease in respect of three rooms in the same premises (marked for identification as) 984, in favour of appellant 1, on a monthly rent of Rs. 750/ Respondent 1 failed to pay the contractual rent, regularly, which fell into arrears which were not cleared despite the pressing demands made by the Receiver.
On March 13, 1954 the Receiver wrote to Respondent 1 threatening to take legal proceedings for the recovery of the rent.
This Receiver, who is now appellant No. 2, had been appointed by the High Court in Suit No. 454 of 1949 instituted by appellant 1 against the Insurance Company On April 14, 1954, two applications were filed in the Court of Small Causes by Respondent 1 for fixation of standard rent in respect of the premises comprised in the said two leases one application, R.A.N. 983/54, relates to properties 983/1 to 983/12, and the other (R.A.N. 984) to premises 984.
It was alleged in the applications that since on September, 1, 1940, the entire estate, including the properties in question.
had been let out on a monthly rent of Rs. 1700/ , standard rent of the premises it question should be fixed on the basis of apportionment In particular, it was pleaded that fair rent of Rs. 983/1 to 983/12 should be 1/8th of Rs. 1200/ which was later corrected as 1700/ .
On the same basis it was alleged in the second application, that fair rent of premises 984 should be Rs. 75/ p. m. 580 The appellants resisted these applications and averred in R. A. N. 983/54, that several entirely new structures had been built and substantial alterations made in most of these structures between the years 1940 and 1948, as a result whereof the property had lost its identity, and consequently, fair rent could not be fixed on apportionment basis.
On June 11, 1958, Respondent 1 made an application for amendment of the Standard Rent Application (R.A. N. 983154) for adding an alternative ground based on the value of the land and cost of construction so that in the event of the court holding on the preliminary issue in favour of the appellants, the standard rent could be fixed on the basis of the valuation of the land and the construction.
This application was disallowed.
On July 30,1958 Respondent 1 made an application for amendment of his R. A. N. 984 of 1954 on lines similar to that in R. A. N. 983/54.
It was also dismissed by an order, dated July 31, 1958.
At the stage of arguments on December 4, 1958, Respondent 1 moved another application for amendment and addition of the plea that they were the owners of the structures in premises 983/10, 983/1] and 983/12.
The second amendment was not sought to be made in the other application R. A. N. 98411954 relating to property 984.
This prayer was also declined.
The trial court (Samson J.) by its judgment dated April 2, 1959, found that the premises in question on account of structural alterations had undergone such a change that they could no longer be identified with the property that existed in September 1940 and that the mode of ,determining rent by apportionment was not available to the tenants.
In the result he dismissed the applications, adding "there is no sufficient ,material to ascertain the standard rent in any other way '.
Against those orders, Respondent 1 filed a revision petition under section 129 (3) of the Act before the Revisional Court of Small Causes, Bombay, which accepted, the same set aside the order of the trial judge, allowed the amendment and remanded both the applications for fixation of fair rent to the trial court.
Against this remand order, dated August 8, 1960, of the Revisional Court, the appellants preferred two Civil Revisions to the High Court of Bombay.
During the pendency of those Revisions, the trial court allowed the amendment and proceeded to decide the entire matter afresh.
These facts were brought to the notice of the High Court, which, however, ,dismissed the revision petitions by a judgment dated February 3, 1961 holding that the first Revisional Court had, in fact, remanded the entire matter for trial de novo, after rightly allowing both the amendments.
After the remand, the trial court by its judgment, dated April 25, 1961 held that except 983/10, 983/11 and 983/12, which were new structures there was no change of identity in the rest of the properties 581 i. e. 983/1 to 983/9; that new structures 983/10, 983/11 and 983/12 belonged to Respondent 1 who was consequently, liable to pay rent only for the land underneath; that the cost of repairs of the properties, 983/8 and 983/9 after they had been destroyed by fire, was mainly borne by Respondent 1, the landlord 's contribution being Rs. 8,500/ only.
Applying the principle of apportionment, it fixed the standard rent of the properties 983/1 to 983/12 at Rs. 400/ p.m. subject to permitted increases after 1954.
Regarding the premises 984(in R.A.N.984/54), the trial court gave are turn on the investment of Rs.40,000/ made by the landlord inclusive of the cost of structure and the value of land underneath at Rs. 30/ per sq. yard (as that of 1940) and fixed the standard rent at Rs. 386/ p. m. subject to permitted increases after 1946.
Aggrieved by these orders of the trial court, appellants and Respondent 2 filed two revision applications under section 129 (3) to the Revisional Court of Small Causes which by its judgment, dated September 30, 1964, substantially upheld the findings of the trial court, inter alia with the exceptions : (i) that the ownership of the new structures 983/10, 983/11 and 983/12 vested in Appellant 1, who was entitled to get a fair return on that investment; (ii) that the value of the land "married" to the new structures 983/10, 983/11 and 983/12, and 984/54, should be taken at Rs. 50/ per sq.
yd., i. e. as of 1948 and not as of 1940 as had been done by the trial court on remand.
In the result, the standard rent in R.A.N. 983 was raised to Rs. 981 / and in R.A.N. 984 to Rs.411/ p.m.
To impugn the decision, dated September, 30, 1964, of the Revisional Court, the parties preferred six Special Civil Applications under article 226/227 of the Constitution to the High Court.
By a common order, a learned single Judge of the High Court dismissed these applications except that he corrected some arithmetical errors and, in consequence, fixed the standard rent of properties 983/1 to 983/12 at Rs. 841.07 and that of premises 984/54 at Rs. 462/11 p. m.
It is against this decision dated 12/13th October 1971 of the High Court that these appeals have been filed by special leave.
The first contention of Mr. Cooper, learned Counsel for the appellants is that there is no provision in the Act which requires standard rent to be fixed on apportionment basis; rather, the definition of "premises" in section 5(8) (b) which speaks of "part of a building let separately," read with clause (i) of section 5(10) and clause (c) of section 11 (1) with due emphasis on the article 'the ' immediately preceding the, word 'premises ' in the said clauses, indicates that the standard rent would be the rent for which the suit premises were first let separately on or, after the basic date i.e. September 1, 1940.
If on the basic date proceeds the argument the premises in question did not form the subject of a separate, single ,demise but had been let out together with other portions of larger premises, its standard rent could not be determined on the footing of the rent payable for those different portions.
Reliance 582 has been placed on Dhanrajgirji Naraingirji vs W. G. Ward;(1) and Bata Shoe Co ' Ltd. vs Narayan Das Mullick and Ors.(2) Counsel had further tried to distinguish Capital and Provincial Property Trust Ltd. vs Rice(3) and Bhikaji Ramchandra Paranjpe vs Vishnu Ramchandra Paranjpe(4), referred to in the judgment of the High Court.
On the other hand, Mr. Lokur, learned Counsel for Respondent maintains that the principle of apportionment has always been accepted by the Bombay High Court as an appropriate guide in fixing standard rent under the Act of premises which on the basic date had been let out as part of a larger entity.
It is pointed out that in Narayanlal Bansilal vs Venkatrao Anant Rai(5); a Bench of the High Court while considering the question of standard rent in respect of another portion of the very property of the appellant Mills, had invoked this principle.
Before we deal with the contentions canvassed, it will be proper to make a brief survey of the relevant provisions of the Act: The material part of the definition of "premises" in s.5(8) reads: "Premises" means: (a) any land not being used for agricultural purposes; (b) any building or part of a building let separately.
" (emphasis supplied) Sub section (10) of the same Section defines "standard rent", in relation to any premises, to mean (a) where the standard rent fixed by the court and the Controller respectively under the Bombay ]tent Restrictions Act, 1939 or the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, such standard rent; or (b) Where the standard rent is not so fixed/subject to the provisions of section 11, (i) the rent at which the premises were let on the first day of September 1940, or (ii) where they were not let on the first day of September 1940, the rent at which they were last let before that day, or (iii) where they were first let after the first day of September 1940, the rent at which they were first let, or (iv) in any of the cases specified in section 11, the rent fixed by the Court; (1) (2) A.I.R. 1953 Cal.
(3) [1952] Appeal Cases 142.
(4) (5) 583 Section 1 1 empowers the Rent Court to fix the standard rent at such amount, as having regard to the provisions of this Act and the circumstances of the case, the court deems just (a) where any premises are first let after the first day of September 1940, and the rent at which they are so let is in the opinion of the Court excessive; or (b) where the Court is satisfied that there is no sufficient evidence to ascertain the rent at which the premises were let in anyone of the cases mentioned in sub clause (i) to (iii) of clause (4) of sub section (10) of section 5; or (c) Where by reason of the premises having been let at one time as a whole or in part and another time in parts or a whole, or for any other reasons, any difficulty arises in giving effect to this part; or (d) Where any premises have been or are let rent free or at a nominal rent or for some consideration in addition to rent; or (e) Where there is any dispute between the land lord and the tenant regarding the amount of standard rent.
" Clause (c) read with the opening part of section 11(1) is crucial for our purpose.
One of the primary objects of the Act is to curb exaction of extortionate rents and to stabilise the same at prewar level.
In achieving that object, however, it avoids a Procrustean or mechanical approach.
While pegging the basic line to September 1, 1940, it significantly subordinates "standard rent" by its very definition in section 5 (10) (b) to the benignant jurisdiction of the Court under s.11.
And the key words of the latter provision, into which the conscience of this anti rack renting statute is compressed, are "the circumstances of the case, the Court deems just".
These words inhibit a rigid and ossified determination of "standard rent".
They leave sufficient "play at the joints", investing the court with a wide discretion in the matter.
According to the scheme of the Act, while "rent" recoverable by the landlord, may owing to permitted increases, fluctuate, the 'standard rent ' always remains fixed or stationary.
If on the basic date, the suit premises were not let out separately but were a part of the subject matter of a larger demise as in the instant case difficulty arises in giving effect to the statute.
Clause (c) of section II (1) then comes into operation.
To resolve the difficulty this clause and the related provisions are not to be construed in a narrow technical sense which would stultify or defeat their object.
It is to be interpreted liberally in a manner which would 'advance the remedy ', 'suppress the 584 mischief, and foil 'subtle inventions and evasions ' of the Act.
Construed in accordance with this socially relevant rule in Hayden 's case the meaning of 'the premises ' having been let at one time as a whole, spoken of in this clause, can legitimately be deemed to cover ' the larger premises which, on the basic date, had been let as a: whole and of which the suit premises was a part let out subsequently.
In any event, the amplitude of the phrase "or any other reason" in the latter part of the clause, is wide enough to embrace cases of this kind and confers a plenary curative power on the Court.
True, that unlike the English Rent Control Act of 1920 or the later English Acts, the (Bombay) Act does not expressly speak of apportionment.
But the language of its relevant provisions construed consistently with the scheme and in built policy of the Act, is elastic enough to permit the fixation of standard rent on apportionment basis.
As noticed already, section II (1) gives a discretion to the Court to fix such amount as standard rent as it "deems just".
However, in exercising this discretion the Court has to pay due regard to (i) the provisions of the.
Act and (ii) the circumstances of the case.
Apportionment or equal distribution of the burden of rent on every portion is a rule of justice and good sense.
If the standard rent of a whole was a specific amount, it stands to reason that the standard rent of a part or sub division of that whole should not ordinarily exceed that amount.
Therefore, if in the circumstances of a given case the Court feels that for securing the ends of justice and giving effect to the provisions and policy of the Act, it is reasonably necessary and feasible to work out the standard rent by apportionment, it can legitimately do so.
This principle, however, is applicable where on the basic date, that portion of which the standard rent is to be determined, had not been let separately as on unit, but the whole, of which it is a part, had been let on that date.
Apportionment postulates that on account of its having been let on the basic date, the whole had acquired a standard rent which has to be allocated to smaller units subsequently carved out of it.
It is thus clear that the principle of apportionment is not alien to the spirit of the Act, and has indeed been often invoked by the courts in fixing standard rent under this Act.
In Narayanlal Bansilal 's case (supra), a Division Bench of the Bombay High Court determined standard rent of another part of this very estate of the Mills in accordance with that principle.
However, while conceding that apportionment is not foreign to the scheme, purpose and policy of the Act, we will like to emphasise the need for caution and circumspection in invoking it.
It is not to be rigidly and indiscriminately applied as a cast iron rule of law regardless of time and circumstances or the equities of the case.
A doctrinaire approach, not consistent with a just and fair determination, stultifies the whole salutary purpose of justice to both, the landlord and the tenant.
If necessary, it can be adjusted, adapted and attuned in the light of the particular circumstances of the case, to satisfy the statutory requirement of 585 fixing the standard rent as at a "just amount.
Thus if after the material date, the landlord has made investments and improvements in the promises, it will be just and reasonable to take that factor also into account and to give him a fair return on such investments.
Further, in appor tioning the rant, the Court must consider other relevant circumstances, such as "size, accessibility, aspect, and other 'Physical advantage enjoyed by the tenant of the premises of which the standard rent is in question, as compared with those of the rent of the property in which it is comprised [see Bainbridge vs Contdon(1)].
Where after the basic date, the premises completely change their identity, apportionment as a method of determining just standard rent, loses its efficacy and may be abandoned altogether.
We have only illustrated, not exhaustively enumerated the relevant circumstances and their implications.
At this stage, we may notice the decisions in Danrajgirji vs W.C. Ward (supra) and Bata Shoe and Co. vs Narayan Dass (supra) relied upon by Mr. Cooper.
In the first, a learned single Judge of the Bombay High Court was considering sections 2(1)(a) and 13(1)(a) of the Bombay Rent (War Restriction Act II of 1918), which were, to an extent, similar to sections 5(8)(b) and (10) and 11(1)(c) of the 1947 Act.
There, the Port Trust had in March 24,1915, leased the building known as Watson 's Annexe to one Dr. Billimoria at a rental of Rs. 2,850, besides ground rent and taxes.
Dr. Billimoria sublet the premises in different flats to different tenants.
The premises in the occupation of the defendant were sublet to him at a rental of Rs. 75/ in September, 1915, i.e. before September 1, 1916 which was the basic date under the 1918 Act.
The tenancy of Dr. Billimoria was terminated by a consent decree on July 31, 1923 and thereafter, the defendant held directly under the plaintiff.
The question arose as to whether standard rental of the flat should be calculated on the basis of the actual rent of Rs. 75/ , on the basis of the subletting or whether it should be determined by apportionment of the rent which Dr. Billimoria was paying to the Port Trust on the basis of the first letting.
Pratt J answered this question thus: "The Rent Act itself in the definition of the premises refers to a part of the building separately let as premises of which the standard rent has to be determined and such standard rent must be determined with reference to those premises in the manner spe cified by s 2(1)(a) of the Act.
The standard rent, therefore, must be ascertained on the admitted basic rent of Rs. 75./. .
Again, if the head lease instead of being as here the lease of one building consisting of flats had been a lease of a large number of buildings constituting a large estate, it would be almost impossible to make a correct apportionment of the rent.
I do not think it was the intention of the Rent Act that landlords and tenants should be driven to do a difficult and expensive process of valuation.
and calculation before their rent could be ascertained.
" (1) M45Sup.
CI/75 586 We see force in the argument as also textual and pragmatic support.
But these considerations do not preclude the Court from importing the flexible factors of fairness suggested by the circumstances of the case.
Indeed, section 11, as explained earlier, obliges the Court to do it.
Moreover, the interpretation of "premises" adopted by the learned judge was a little too literal, narrow and divorced from the purpose and content of the provisions relating to fixation of standard rent.
Nor was it in accord with the scheme and object of the 1918 Act.
The court 's jurisdiction to consider, as a strong circumstance, proper apportionment of rent is not taken away, in our view.
It may be noted that just like the opening clause of section 5 of the 1947Act, which defines "premises" "standard rent" etc., the corresponding section 2(1) of the 1918 Act, also, started with the qualifying words "In this Act, unless there is anything repugnant in the subject or context".
While applying these definitions to particular cases and provisions of the Acts, these words should not be lost sight of.
The argument in favour of adopting the restricted interpretation, ignores this rider to the definitions, provided by the Legislature in these statutes.
We do not intend to over burden this judgment with a discussion the decision in Bata Shoe & Co 's case (supra).
Suffice it to say that is a decision under the West Bengal Premises Rent Control Act (17 of 1950) which stands on its own facts.
It cannot be accepted as laying down a rule of universal application.
It is vulnerable, more or less on the same grounds, on which the decision in Dhanrajgirji 's case can be assailed.
We reject the narrow interpretation of the relevant provisions of Ss. 2 and II, canvassed for by the appellants, for two reasons: Firstly, it will leave the door wide open for evasion of this statute by what Abbot C. J. in Fox vs Bishop of Chester(1) called "shift or contrivance" All that a greedy landlord, need do to squeeze out more rent would be to divide his premises into several parts and let them out separately on exorbitant rents.
Such an evasion may amount to a fraud upon the statute.
Secondly, such a construction so manifestly subversive of one of the primary objects of the Act would be wholly beyond the intendment of the Legislature.
For reasons aforesaid we would negative the first contention of Mr. Cooper, as an inflexible proposition and answer the first part of the question posed in the affirmative to the extent indicated.
it takes us to the second part of that question namely whether the principle of apportionment was correctly applied to the fact, of the case ? Mr. Cooper contends that the first trial court (Samson J.) had rightly found that the premises in question on account of extensive alterations and constructions undergone a complete change after the basic date, and therefore standard rent could not be determined by apporoining the rent of the whole among the parts.
It is maintained that (1) (824) ; at 655.
587 this finding of Samson J. was wrongly set aside by the High Court and must be deemed to be still holding the field.
Objection is also taken to the amendments allowed by the trial court on remand.
In the alternative, it is argued that even the courts below found that properties 983/10, 983/11, 983/12 and 984/54 were admittedly new structures and extensive repairs and replacements had been made in the remaining suit premises which had been destroyed or severely damaged by fire in 1948 49.
On account of these substantial alterations and reconstructions the premises in question had lost their identity and consequently, the principle of appointment was not applicable.
The first part of the contention based on the judgment of Samson J. is groundless.
The judgment of the first trial court was set aside in toto by the Revisional Court, and further by the High Court and the case was remanded for de novo trial to the trial court which thereafter, decided the case afresh after allowing the applicant to amend his R.A. N.S.
It is too late in the day any way to argue on the assumption that the findings still survive.
The question whether a certain property has changed its identity after the basic date is largely one of fact.
The courts below have found that excepting properties 983/10, 983/11,983/12 and 984/54 which were admittedly new structures contracted near about 1948, the rest of the properties, namely 983/1 to 983/9 had not lost their identity.
The courts therefore, worked out the economic rent of these new structures by capitalising their value and gave the landlord a fair return on Ms investments and fixed their standard rent mainly on that basis.
It was with regard to the unchanged old properties 983/1 to 983/9 that the High Court and the Revisional Court mainly adopted the method of appointment.
Even so, it allowed the landlord fair return over Rs. 14,448/ being the cost of flooring, ceiling and other fixtures fixed to property 983/6.
Now it is not disputed that on the basic date (September 1, 1940), these properties in question were parts of a larger entity comprised in a single lease or tenancy in favour of Sound Studios at a monthly rent of Rs. 1700/ .
The courts below have therefore taken into account this basic circumstance along with the other relevant facts of the case.
We do not find anything so wrong or unfair or untenable in the method adopted by them which would warrant an interference by this Court in the exercise of its special jurisdiction under article 136 of the Constitution.
Not that apportionment must be applied in all cases as a rule of law but that, if applied along with other considerations dictated by a sense of justice and fairplay, cannot be condemned by this Court as, illegal.
We therefore, overrule this contention, also.
Lastly, it is contended that the courts below have seriously erred in evaluating the land under the suit properties at Rs. 30/ per sq.
on the basis of an instance (exhibit R 6) of the year 1942, while they should have taken into account the value of the land as in the year 1948.
it is added that some photostat co pies of sale deeds pertaining to the rele vant year were produced by Mr. Deweja, architect examined by the Landlord, and the Revisional Court wrongly rejected them As unproved.
it is maintained that in 1948, the market value of the site underneath the 288 structures was Rs. 120/ per sq.
in support of his contention that the value of the land at the date of the letting is the appropriate value to be taken into account, Counsel has cited Bukmanibai Khunji Cooverji vs Shivnarayan Ram Ashre.
We are unable to accept this contention also.
The courts below in capitalising the structures, 983/10 to 983/12 and 984/54 did take into account the value of the land married to those properties at the rate of Rs. 50/ per sq.
yd; which, according to their estimate, after adding Rs. 30/ per sq.
yd for escalation, would be the market value of that land in the year 1948.
Since the rent of the old unchanged properties 983/1 to 983/9 was fixed mainly on apportionment basis, the courts did not think it necessary to take the value of their sites separately into computation in fixing the standard rent.
Moreover, there was no evidence on the record to show that the value of the land in question, in the year 1948 was Rs. 120/ per sq.
We, therefore, do not think it necessary to examine Cooverji 's case cited by the Counsel.
We however, do not rule out the propriety of paying regard to escalations in land value as put forward by Mr. Cooper, but do hold that this Court will be loath to re investigate factual conclusions not shown to be perverse or manifestly unjust.
Such is not the case here.
For all the foregoing reasons, we would answer the question posed for decision.in the affirmative and dismiss these appeals with one set of costs.
V.P.S. Appeals dismissed (1)(1966)67 Bom.
L.R. 692.
| On September 1, 1940, the basic date under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the properties in dispute were parts of a larger entity comprised in a single lease.
In March 1948, the respondent took a fresh lease of the properties in dispute, Thereafter, the respondent filed applications in the court of Small Causes for fixation of standard rent on the basis of apportionment.
The trial court dismissed the applications holding that the premises, on account of structural alterations, had undergone such a change that they could no longer be identified with the property that existed in September 1940; that the mode of determining the rent by apportionment was not available to the tenant; and that there was no sufficient material for ascertaining the standard ' rent in any other way.
This order was set aside in revision and the case was remanded to the trial court.
After remand, the trial court held that except with respect to three items of the premises in dispute, which were new Structures, there was no change of identity in the rest of the properties; that the new structures belonged to the respondent who was consequently liable to pay rent only for the land underneath; and on that basis, applying the principle of apportionment, fixed the standard rent.
With respect to one item the trial court took into consideration the investment made by the landlord inclusive of the, cost of structures, estimated the value of the land underneath as in 1940, and fixed the standard rent on that basis.
In revision it was held that the ownership of the three new structures also vested in the appellant, that he was entitled to get a fair return on that investment also and that the value of the land should be taken as in 1948 and not in 1940, and the standard rent was fixed on that basis.
Further revisions to the High Court were dismissed with some arithmetical corrections.
In appeal to this Court, HELD : The principle of apportionment is applicable to the fixation of standard rent of the premises in dispute and the principle had been rightly invoked and applied.
[584 F G] (a) One of the primary objects of the Act is to curb exaction of extortionate rent.
Section II (1) empowers the Court to fix the standard rent at such amount, as having regard to the provisions of the Act and the circumstances of the case, the Court deems just, If on the basic date the premises were not let out separately but were a part of the subject matter of a larger demise then section 11(1)(c) comes into operation.
If the standard rent of a whole was a specific amount it stands to reason that the standard rent of a part or sub division of the whole should not ordinarily exceed that amount.
Therefore, if in the circumstances of a given case the court feels that for securing the ends of justice and giving effect to the provisions and policy of the Act it is reasonably necessary and feasible to work out the standard rent by apportionment, it can legitimately do so.
The language of the Act consistently with its scheme and in built policy is elastic enough to permit the fixation of standard rent on apportionment basis.
At the same time, caution and circumspection are necessary in applying the principle to the particular circumstances of a case.
For example, if after the material date, the landlord has made investments and improvements in the premises it will be just and reasonable to take that factor also into account and give him a fair return on such investment.
Similarly, in apportioning the rent, the Court must also consider other relevant circumstances and advantages enjoyed by the tenant of the premises of which the standard rent is in question as compared with the rest 578 of the Property in which it is comprised.
Further,where after the basic date the premises completely changed their identity, apportionment as a method of determining just standard rent loses its efficacy and may be abandoned altogether.[583E 585C] Narayanlal Bansilal vs Venkatrao Anant Rai 67 Bom.
L.R. 352, Bainbridge vs Congdon and Fox vs Bishop of Chester ; at 655 referred to.
Dhanrajgirji Naraingirji vs W. G. Ward (1925) 27, Bom.
L.R. 877 and Bata Shoe & Co. Ltd. vs Narayan Das Mullick and Ors.
not approved.
(b)(1) The findings of the trial court before remand had been set aside in the order of remand, and there is nothing wrong or unfair or untenable in the method adopted by the lower courts after remand which would warrant interference by this Court in exercise of special jurisdiction under article 136 of the Constitution.
[587D G] (ii) The question whether certain property has changed its identity after the basic date is largely one of fact.
The factual conclusions arrived at by the revisional court and High Court are not shown to be perverse or manifestly unjust" It was with regard to the unchanged old properties that the High Court and the Revisional Court mainly adopted the method of apportionment.
Even so, they allowed the landlord a fair return over the amount invested by him towards the cost of flooring, ceiling and other fixtures.
since the rent of the old unchanged premises was fixed mainly on apportionment basis, the courts rightly did not think it necessary to take the value of their sites separately into computation in fixing the standard rent.
[588 B D] (iii) As regards the new structures the courts below, in capitalising their value did take into account the value of the land and took the market value of the land as in the year 1948.
[588B]
|
ons Nos. 439 & 440 of 1955.
Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
H. J. Umrigar and R. A. Govind, for the petitioner in Petition No. 439 of 1955.
J. B. Dadachanji, for the petitioner in Petition No. 440 of 1955, M. C. Setalvad, Attorney General of India, B. Sen and R. H. Dhebar, for the respondents.
May 8.
The judgment of section R. Das C. J. and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha J. Jagannadhadas J. delivered a separate judgment, SINHA J.
These petitions under article 32 of the Constitution challenge the constitutionality of some of the provisions of the Bombay Police Act, XXII of 1951, (which hereinafter will, be referred to as "The Act"), with special reference to section 56, as also of the orders passed against them externing them under that section of the Act.
In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is the petitioner and the District Magistrate of Thana, the Deputy Superintendent of Police and Sub Divisional Police Officer, Bhivandi Division, Bhivandi, District Thana, and the State of Bombay are respondents 1, 2 and 3.
The petitioner is a citizen of India and carries on trade in grass at Bhilad, a railway station on the Western Railway.
On 21st January 1955 the Deputy Superintendent of Police and Sub Divisional Police Officer, Bhiwandi Division, served a notice under section 56 of the Act in the following terms: 535 No. Ext.
3/1 of 1955 Office of the S.D.P.O. Bhiwandi, Bhiwandi, dated 21 1 1955.
(I) I, Shri C. V. Bapat, Deputy Superintendent of Police and Sub Divisional office Bhiwandi Division, District Thana, do hereby issue a notice to you, Shri Bhagu Dubai Bhandari alias Bhagwanbhai Dulla Bhai Jadhav of Bhilad District Thana, that it is proposed that you should be removed outside the District of Thana and you should not enter or return to the said district for a period of two years from the date of the order to be made under section 56 of the Bombay Police Act, 1951 for the following reasons: (II) Evidence is forthcoming that your following activities have caused and are calculated to cause alarm, danger and harm to person and property in Bhilad and the surrounding areas: (III) You have been dealing in smuggled foreign liquor and maintained a veil of secrecy by criminal intimidation and physical violence to the villagers and other right thinking persons.
(2) Your activities have been in continuation of your similar activities for the.
last five years, given as under: (a) You criminally assaulted persons with the help of your associates and did violent acts in order to strike terror into the hearts of the villagers, so that they should not challenge you or your men.
(b) You have been criminally assaulting and intimidating Central Excise and Custom officials with the help of your gang, so as to stop them from looking into your anti national, anti social and illegal activities.
As a result of your unlawful and dangerous activities you are held in terrific awe by the Central Excise and Custom Officers and men and villagers in Bhilad area who are continuously labouring under grave apprehension of danger to their per son and property.
(c) You and your associates were and are making use of criminal intimidation against the villagers in order to prevent them from having recourse to legal means.
536 (III) That you and ' your associates are also understood to be in possession of unlicensed firearms which has been causing considerable alarm and spreading a feeling of insecurity of life and property in the mind of villagers from Bhilad and neighbouring villages and Central Excise and Customs employees.
(IV) The witnesses are not willing to come forward and to give evidence against you by reason of apprehension of danger and harm to their person and property.
(V) Now, I Shri C. V. Bapat, Deputy Superintendent of Police and Sub Divisional Police Officer, Bhiwandi Division, District Thana in exercise of the authority conferred upon me under section 59 of the Bombay Police Act, 1951 by the District Magistrate Thana under his number,MAG.
2/ EX dated 17 1 1955 do hereby direct you to appear before me at 11 a.m. on 27 1 1955 at Dahanu in the office of the Sub Divi sional Police Office Dahanu for tendering your explanation regarding the said allegation.
You are also entitled to appear before me by advocate for the purpose of tendering your explanation and examining witnesses, produced by you.
Signed and sealed this day of 21st Jan. 1955. Sd. . . . .
Deputy Superintendent of Police & Sub Divisional Police Officer, Bhiwandi.
To Shri Bhagu Dubal Bhandari @ Bhagwanbhai Dullabhai Jadhav of Bhilad, District Thana".
By that notice the petitioner was called upon to appear before the said police officer on the 27th January 1955 in order to enable the former to offer such explanation and examine such witnesses as he may be advised.
In pursuance of that notice the petitioner appeared, before the police officer aforesaid and the hearing of his case took place on different dates.
The petitioner claims to have examined seven "respectable persons" to testify on his behalf.
Ulti mately on the 11th July 1955 an order was passed by the District Magistrate of Thana externing the petitioner outside the Thana District.
The order of 537 externment is exhibit D to the petition and contains the recitals that after considering the evidence before him and the explanation offered by the petitioner the District Magistrate of Thana (the 1st respondent), was satisfied that the petitioner "engages in giving threats and assaulting Central Excise and Customs Officials men and residents of Bhilad and surrounding villages and indulges in illicit traffic of foreign liquor from Daman" and that in his opinion "witnessess are not willing to come forward to give evidence in public against the said Shri Bhagubhai Dul labhbhai Bhandari alias Bhagwanbhai Dullabhbhai Jadhav of Bhilad by reason of apprehension on their part as regards the safety of their person and property".
It is this order which is challenged as illegal and ultra vires and against which the petitioner has moved this Court for an appropriate writ, direction or order against the respondents " prohibiting them, their servants and agents from acting upon or taking any steps in enforcement, furtherance or pursuance of the said order and from interfering in any manner with the petitioner 's right to reside in Bhilad and carry on his business.
The petitioner had preferred an appeal to the Government against the said order of externment.
But the appeal was dismissed on the 9th September 1955.
Against the said order the petitioner moved the High Court of Judicature at Bombay under article 226 of the Constitution, but the said application was also dismissed in limine by the High Court by its order dated the 7th November 1955, The District Magistrate of Thana, the 1st respondent has sworn to the affidavit filed in this Court in answer to the petition.
He swears that he had passed the externment order complained against after perusing the police reports and going through the explanation offered by the petitioner and the statements of the witnesses produced by him and on hearing his advocate.
He further states in the affidavit that the general nature of the material allegations against the petitioner was given to him, that the material given to him was clear and by no means vague.
Only the names of the persons who had given the, 538 information against the petitioner were not disclosed to him inasmuch as those persons were not prepared to.
come out in the open and depose against him in public as witnesses.
He was satisfied that witnesses were unwilling to come forward to give evidence in public against the petitioner.
He also affirms that the petitioner 's movements and acts were not only causing alarm, danger or harm to personal property of the general public round about Bhilad, but also that his movements and acts were causing danger and alarm to public servants of the police force and the Central Excise who were doing very responsible work at Bhilad which is on the borderline of the Indian territory adjoining Daman area which is Portuguese territory.
He admits that the petitioner was discharged by 'the Judicial Magistrate, First Class, Umbergaon because the witnesses did not appear and depose against 'him for fear of the petitioner.
In Petition No. 440 of 1955, Kunwar Rameshwar Singh is the petitioner and the respondents are 1.
Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch (I) C.I.D., Greater Bombay, 2.
The Commissioner of Police, Greater Bombay, and 3.
The State of Bombay.
The petitioner is a citizen of India and claims to be a "social worker" connected with several social organisations.
He alleges that his main social activity has been the improvement of the lot of prostitutes and singing girls in certain quarters 'of Bombay On the 2nd November, 1954 the petitioner was served with a notice under section 56 read with section 59 of the Act (exhibit A to the petition) setting out the allegations against him and calling upon him to ex plain those matters.
In pursuance of the said notice the petitioner appeared before the Superintendent of Police to show cause against the proposed action against him.
Ultimately on the 4th January, 1955 the Commissioner of Police, the second respondent, passed an order to the effect that the petitioner should remove himself from the limits of Greater Bombay 539 within seven days.
That order is marked exhibit H and is to the following effect.
" Order of Externment (Section 56 of the Bombay Police Act, 1951) Police Station: Nagpada No. 7/c/43/1955.
Whereas the Commissioner of Police, Greater Bombay, has directed by his order, dated the 13th August, 1954 and 11th December 1954, made under sub section (2) of section 10 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) that the powers, functions and duties under the said Act shall also be exercised by the Deputy Commissioners of Police, Greater Bombay.
And whereas evidence has been placed before me, Deputy Commissioner of Police, Crime Branch (1), against the person known as Kunwar Rameshwar Singh, to the following effect: I.
That since October, 1953 in the locality known as Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay his movements and acts are causing alarm and harm to the persons residing in, carrying 'on business in, or visiting the said locality in that: (i) He with assistance of his associates some of them being Sk.
Makbool Sk.
Hussain, Abdul Rahiman, Suleman alias Sapad, Ahmad Yusuf alias Ahmed Dalal, Shafi and others, extort Money from women residing in and carrying on business either as prostitutes or singing girls in the said locality on threats of assault and of causing bodily injury to them; (ii) That he with the assistance of the said associates assault or threaten with assault the aforesaid women who do not comply with his demands for money; (iii) That in order to compel the aforesaid women to pay him the money demanded by him he also posts his associates at or near the places of business of the aforesaid women and prevent customers from entering the rooms of, such women; 70 540 (iv) That he with the assistance of his associates extort money from shopkeepers, hotel keepers, merchants and hawkers carrying on business in the said locality and from rent collectors of buildings occupied by the aforesaid prostitutes and singing girls by assaulting them or threatening them with assault and dislocation of business; (v) That he causes damage to the property of the said hotelkeepers and hawkers of the said locality who do not pay him money demanded by him; (vi) That he accosts persons visiting the rooms of singing girls in the said locality for the purpose of entertainment and demand money from them under threats of assault and of preventing them from visiting the said locality; (vii) That he has committed several acts of the nature mentioned above.
That witnesses to the above incidents are not willing to come forward to give evidence in public against him as they apprehend that they will be assaulted by him and/or by his associates if they do so.
And whereas I have heard the said person and considered the explanation tendered by him and also the evidence given by the witnesses produced by him and have heard his counsel.
And whereas after considering all the evidence and explanation detailed above, I am satisfied that: The Movements and acts of Kunwar Rameshwar Singh since October, 1953, are causing alarm and harm to the persons residing in carrying on business in or Visitin the locality known as Falkland Road, Foras Road Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay and that he indulges in activities mentioned above.
And whereas in my opinion witnesses are unwilling to come forward to give evidence in public against the said person by reason of apprehension on their part as regards the safety of their persons; Now, therefore, in exercise of the powers vested in me under section 56 of the said Act, 1, Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch 541 (1) C.I.D., Greater Bombay himself hereby direct that the said Kunwar Rameshwar Singh shall remove outside the limits of Greater Bombay by Central Rly.
(route) within seven days from the date of service of this order and I further direct that he shall not enter the said area of Greater Bombay for a period of two years from the date of this order without a permission in writing from the Commissioner of Police Greater Bombay, or the Government of Bombay.
W. K. Patil, Dy.
Commissioner of Police, Crime Branch (I) C.I.D. Greater Bombay".
The order quoted above is a self contained one and discloses the nature of the allegations against him which he bad been called upon to explain.
The petitioner preferred an appeal to the third respondent, the State of Bombay.
But his appeal was dismissed on the 17th January 1955.
The petitioner challenged the validity of the said order passed by the respondents by a petition under article 226 of the Constitution to the Bombay High Court, but it was dismissed on the 14th March 1955 after hearing.
The judgment of the High Court is Exhibit D.
The learned Judge of the Bombay High Court who dealt with the petition has set out briefly the main allegations of the petitioner and the affidavit in answer to the petition sworn to by the 1st respondent here.
The learned Judge observed in the course of his judgment that in view of the averments in the petition and those in the affidavit in reply it was impossible for him to hold that the Deputy Commissioner of Police knew that witnesses were willing to give evidence against the petitioner.
The petitioner went up on Letters Patent Appeal and a Division Bench consisting of the Chief Justice and another Judge of the Bombay High Court dismissed the appeal holding that once the opinion has been formed by the authority that witnesses were unwilling to give evidence in public against the petitioner, the court could not go behind that opinion.
They also negatived the plea of want of bona fides in the 1st respondent who had initiated the proceedings.
542 The petitioner removed himself outside the limits of Greater Bombay.
Having come to know that a warrant of arrest had been issued Against him in a certain pending case before the Presidency Magistrate, Fourth Court, at Girgaum, Bombay, on the 6th April 1955, the petitioner entered Greater Bombay to attend court but he was arrested under the Act for committing a breach of the externment order.
He was prosecuted before the Presidency Magistrate, Sixth Court at Mazgaon, Bombay, for an offence under section 142 of the Act.
He was convicted by the Magistrate and sentenced to nine months rigorous imprisonment by a judgment dated the 8th September 1955.
The Magistrate 's judgment is Exhibit to the petition.
The learned Magistrate overruled the petitioner 's contention that the order of externment passed against him was illegal, relying chiefly upon the judgments of the High Court referred to above, upholding the constitutionality of that order.
As regards his defence that he had entered Greater Bombay in obedience to the warrant issued against him, the learned Magistrate observed that as a matter of fact, according to the statement of the petitioner 's counsel before him he had taken that step "to test the validity of the order".
Secondly, the learned Magistrate has rightly pointed out that the petitioner should have obtained the previous permission of the Police Commissioner before returning to Bombay, as otherwise the order of externment would be rendered nugatory.
The learned Magistrate also observed in the course of his judgment that no allegations of mala fides had been made against the police officers who bad initiated the proceedings against the petitioner.
The petitioner went up in appeal to the High Court of Bombay which by its judgment dated the 5th October 1955 upheld the conviction and the sentence.
The judgment of the High Court is Exhibit G to the petition.
A Division Bench of the Bombay High Court repelled the contention on behalf of the appellant that the order of externment was invalid, relying chiefly upon the previous judgment of that very court upholding the constitutionality of the very order 543 impugned.
Another matter referred to in the judgment of the High Court is rather significant.
On behalf of the appellant reliance had been placed upon a letter alleged to have been sent to the petitioner by the Secretary to the Chief Minister granting permission to him to return to Bombay in order to see the Home Secretary.
It was found on enquiry by the learned Government Pleader who intimated to the court that the alleged letter had not been signed by the Secretary to the Chief Minister and that no such letter had actually been sent to him.
On that statement being made, the petitioner 's counsel did not press his contention that his return was after permission.
The petitioner moved this Court for special leave to appeal against the said judgment of the High Court in Petition No. 601 of 1955.
One of the grounds in the petition was that the High Court should have held that the externment order was illegal and that therefore the petitioner 's entry was lawful.
A Constitution Bench of this Court by its order dated the 21st November 1955 dismissed the petition for special leave to appeal.
This completes the statement of the case made on behalf of the petitioner.
In answer to this petition the first respondent has sworn to the affidavit filed in this Court.
It is necessary to state in some detail the facts stated in this affidavit which furnish the background to the whole case against the petitioner.
The petitioner is said to be a native of Balrampur, District Gonda, Uttar Pradesh.
After passing his school examination in 1940, he joined the then Royal Indian Navy in 1942.
In the year 1946 while he was attached to section section Talwar in Bombay, be was "released from service".
In 1947 he joined the B. B. & C. 1.
Railway as a clerk and was removed from his post in July 1947 for having made baseless allegations against his superior officer.
In 1949 he made an attempt to enter the police force of Greater Bombay, but that failed as he was found to be unreliable.
Subsequently, in August 1950 he joined the State Transport Department as a clerk but had again to be removed from that post in April 1951.
Later on, the petitioner obtained accommodation in 544 Bombay on a false representation that he was a refugee from Pakistan.
He was prosecuted and convicted and sentenced to pay a fine of Rs. 30 or three months rigorous imprisonment in default.
His appeal from that order of conviction and sentence to the High Court of Bombay was dismissed by a Division Bench in September 1954.
On a similar false repre sentation he had obtained from the Custodian of Evacuee Property two shops in Bombay.
Necessary proceedings had to be taken against him for evicting him from those shops.
After his removal from Government jobs as aforesaid, the petitioner "came forward" as a social worker directing his activities mainly to "the redlight district" in certain quarters of Greater Bombay inhabited by over 10,000 public women.
Along with his associates he started a norent campaign and resorted to violence with the help of so called volunteers who were themselves bad characters, externees, drunkards and persons with previous convictions.
With the help of associates like those he moved in the "redlight district" and realised money from his victims by threat and intimidation.
Thus by all questionable means the petitioner started extorting moneys by harassing the inmates of that district and those who frequented those quarters.
The rest of the long affidavit running into 29 paragraphs is devoted to denying the allegations made by the petitioner that he had been a victim of police combination against him or that the procedure laid down by the law had not been followed or that the petitioner had not a fair and full opportunity of explaining his case to the authorities.
The affidavit further asserts that witnesses who had given their statements to the police against the petitioner were not willing to come forward openly to depose against him and some of those witnesses who did turn up were prevailed upon by the petitioner to change their original statements made during the preliminary inquiries.
On those averments it was submitted by the 1st respondent that the proceedings against him were regular and in accordance with the provisions of 545 the Act and that there was no merit in his contentions.
These two petitions were heard along with Petition No. 272 of 1955 which is being disposed of by a separate judgment.
In that case the order impugned had been passed under section 57 of the Act.
Sections 56 to 59 of the Act are closely connected.
The common arguments addressed to us by Shri Purshotham challenging the validity of sections 56 to 59 have been dealt with in that judgment and need not be repeated here.
It is only necessary to deal with the provisions of the section impugned in these two cases, namely, section 56 of the Act, which is in these terms: "Whenever it shall appear in Greater 'Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section to the District Magistrate, or the Sub Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an.
Offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit., direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the, outbreak or spread of such disease or to remove himself outside the area Within the local limits of his jurisdiction by 546 such route and within such time as the said officer may prescribe and not to enter or return to the said area from which he was directed to remove himself".
In order to attract the operation of the section quoted above with special, reference to the portions relevant to these cases, it is necessary (1) that the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in that behalf, as the case may be, should be satisfied that the movements or acts of any person are causing or calculated to, cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force of violence or an offence punishable under Chapter XII, XVI or XVII, Indian Penal Code, or in the abetment of any such offence, and (2) that in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property.
When the officer concerned is satisfied about these two essential matters, he may direct such person to remove himself outside the local limits of his jurisdiction and not to return to the said area for a period not exceeding two years as laid down in section 58.
But before passing such orders the person proceeded against under section 56 has to be given an opportunity of explaining matters against him by adducing such evidence as he may tender after he has been informed in writing as to the "general nature of the material allegations against him".
Such a person is entitled to appear before the officer by an advocate or attorney for the purpose of tendering his explanation.
and evidence.
It has not been contended on behalf of the petitioners that they had not been given the opportunity contemplated by section 59.
But grievance was sought to be made of the fact that particulars of the evidence against the petitioners and of their alleged activities have not been given to them.
That argument has 547 been dealt with in the judgment in the other case.
It is necessary therefore to deal only with the particular arguments advanced on behalf of each petitioner peculiar to his case.
In Petition No. 439 of 1955, it was said that this Court had laid down in the case of Gurbachan Singh vs State of Bombay(1) as follows: "The law is certainly an extraordinary, one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein".
The words "no witnesses" have been emphasized as supporting the argument that unless all the witnesses before the police are unwilling to give evidence in open court the provisions of section 56 cannot be taken recourse to.
In our opinion, it is reading too much into the observations of this Court quoted above, made by Mukherjea, J. (as he then was).
The learned Judge did not mean to lay down, and we do not understand him as having laid down, that unless each and every witness is unwilling to give evidence in open court, the provisions of section 56 are not available to the police.
The words of section 56 quoted above do not lend themselves to that extreme contention.
If such an extreme interpretation were to be put on that part of section 56, it is not difficult to imagine a situation where it will become almost impossible to apply that section to any case.
It was next contended on behalf of the petitioner in this case that the section contemplates witnesses other than members of the police force and employees and officers of the Customs Department.
It is said that it is the duty of the police force as of the employees of the Customs Department to brave all danger and to come out in the open even against desperate criminals to give evidence against them in court and to subject themselves to cross examination.
That is a counsel of perfection which every member (1) 71 548 of the police force or every employee of the Customs Department may not be able to act up to.
Furthermore, the terms of the section do not justify any such restricted meaning being given to the word "witness".
Hence, in our opinion, there is no justification for the contention that members of the police force and employees and officers of the Customs Department must always come in the open and give evidence against criminals or potential criminals.
If the officer concerned is satisfied that witnesses of whatever description they may be, are not willing to come out in the open, one of the essential conditions of the application of section 56 is fulfilled and it is no more necessary for them to stop to consider as to which class of persons those witnesses may come from.
In Petition No. 440 of 1955 the learned counsel for the petitioner had a more uphill task in view of the fact that this very order impugned bad been examined in the criminal prosecution against the petitioner by the Presidency Magistrate and by the High Court on appeal and the petition for special leave to appeal to this Court had been refused.
But it was argued on behalf of the petitioner that section 56 itself wag invalid as contravening the provisions of article 19 of the Constitution an argument which has already been dealt with by this Court in Gurbachan Singh vs State of Bombay(1) referred to above.
In that case, Mukherjea, J. (as he then was) delivered the judgment of the court after examining the constitutionality of section 27(1) of the City of Bombay Police Act, (Bombay Act IV of 1902).
The operative words of that section are almost exactly the same as those of section 56 of the Act.
It is not therefore necessary to re examine the constitutionality of those very provisions in this case.
It is enough to point out that no attempt was made in this Court to ;bake the authority of that decision.
Shri Dadachanji, who appeared on behalf of the petitioner in this case faintly suggested that the petitioner had been proceeded against under the penal sec (1) ; 549 tion of the Act notwithstanding the fact that he had entered Greater Bombay in order to look after the case pending against him in which a warrant of arrest had been issued.
But that is a closed chapter so far as the courts including this Court also are concerned inasmuch as his conviction stands conformed as a result of the refusal of this Court to grant him special leave to appeal from the, judgment of the Bombay High Court.
He further contended that his conviction for his ' having entered Greater Bombay itself is an indication of the unreasonableness of the restriction and of the law under which the order of externment had been passed against him.
But if the petitioner had only taken the course indicated by the law, namely, of obtaining the previous permission of the prescribed authority, he could have avoided the prosecution and the conviction.
It must therefore be held that there is no merit in this contention also.
For the reasons aforesaid it must be held that section 56 of the Act is not unconstitutional and that the orders passed against the petitioners are not invalid.
These applications must stand dismissed.
JAGANNADHADAS J.
In view of the decision of this Court in Gurbachan Singh vs The State of Bombay(1), I agree that these petitions should be dismissed.
But I think it right to add that if the matter were res integra I should have felt difficulty in upholding the validity of section 56(b) of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters, serious either because of the nature of the offence contemplated or the circumstances under which it is to be committed and so forth.
I should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a (1) ; 550 period as two years.
it has been said that there is a power of cancellation at any time vested in the officer concerned.
Even so, I should have thought that the vesting of a power to extern, a person out of his home for so long a period without the obligation to review the order at some stated periodical intervals, say once in three months or six months, is prima facie unreasonable.
Externment might appear on the surface not to be as serious an interference with personal liberty as detention.
But in actual practice it may be productive of more serious injury to the person concerned or the rest of his family if he is the earning member.
An externed person is virtually thrown on the streets of another place where be has got to seek his livelihood afresh.
He has to start in a new society with the black mark of externment against him and may be driven thereby to more criminality.
On the other hand, in the case of a person under detention, the State normally takes or is bound to take care of him, and in appropriate cases provides also for his family.
In view, however, of the previous decision of this Court which is binding on me, I am prepared to accept the validity of section 56 of the Bombay Police Act, 1951, and of the orders of externment passed thereunder in these two cases.
Petition dismissed.
| Section 56 of the Bombay Police Act, 1951, is not unconstitutional and does not contravene the provisions of article 19 of the Constitution.
Gurbachan Singh vs State of Bombay ( ; , followed.
In order to attract the operation of the section the Officer concerned should be satisfied that the witnesses are not willing to come forward to give evidence in public, but it is not necessary to show that all the witnesses are unwilling to give evidence.
The terms of the section do not justify any restricted meaning being given to the word "witnesses" and it is applicable to members of the police force and employees and officers of the Customs Department also.
Gurbachan Singh vs State of Bombay ( ; , explained.
Under the provisions of section 56 of the Bombay Police Act, 1951, an order of externment was passed against the petitioner by which he was directed to remove himself outside the limits of Greater Bombay and not to enter the said area for a period of two years without the prescribed permission; and subsequently he entered Greater Bombay in order to attend Court in a case pending against him in which a warrant of arrest had been issued.
He was convicted for committing the breach of the externment order and he contended that his conviction was in itself an indication of the unreasonableness of the restriction.
Held, that the restrictions cannot be said to be unreasonable, as the petitioner could have avoided the prosecution.
and the conviction by obtaining the previous permission of the prescribed authority.
Per JAGANNADHADAS J.
If the matter were res integra should have felt difficulty in upholding the validity of section 56(b) of 534 the Bombay Police Act, 1951, in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters.
I.should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a period as two years.
|
minal Appeal No. 241 of 1968.
Appeal by special leave from the judgment and order dated September 9, 1968 of the Rajasthan High Court in Criminal Appeal No. 134 of 1968.
section V. Gupte, D. P. Singh, R. K. Jain and V. J. Francis, for the appellants.
Debabrata Mukherjee and R. N, Sachthey, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal by special leave against the order and judgment dated 9 September, 1968 of the High Court Rajasthan.
883 The question for consideration is whether the Additional Special Judge, Rajasthan, Jaipur could proceed with the trial of Criminal Case No. 2/68/Spl.
as directed by the order of the High Court.
, That case was initiated under a sanction accorded ' by the Central Government under section 197 of the Code of Criminal Procedure and section 6 (1) (a) of the Prevention of Corruption Act and the appellants along with four civilians were charged, with offences punishable under sections 120 B, 161, 165A. 4,20, 409 and 467 A of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act read with sections 5 (1 ) (a) and 5 (1 ) (d) of the Prevention of Corruption Act.
The Special Police Establishment, Jaipur Branch on 27 January, 1966 put up before the Special Judge, Jaipur a charge sheet against the four appellants and four civilians.
One of the civilians turned approver.
The four appellants thereafter made an application on 13 September, 1966 before the Special Judge that they were Commissioned Officers of the Indian Army and without complying with the provisions of section 549 of the Code of Criminal Procedure and the Rules thereunder called the "Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules," the Special Judge could not proceed against the appellants in the criminal court which under the is described as a civil court as opposed to court martial under the Army Acts.
The Special Judge rejected that application on 10 October, 1966 and ordered that the case would be put up for further proceedings on 16 January, 1967.
A revision application was thereafter moved in the Rajasthan High Court.
The High Court of Rajasthan by order and judgment dated 20 December, 1966 said that the Special Judge would proceed in accordance with the provisions of Rules 3 and 4 of the Rules framed under section 549 of the Code of Criminal Procedure.
In compliance with the aforesaid order of the High Court, the Special Judge on 12 January, 1967 gave notice to the Commanding Officer, 123 Infantry Battalion (T.A.), Jaipur notifying under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 that the appellants along with three civilians were charged with the offences as indicated above and charges would be "framed against the accused after the expiry of a period of seven days from the date of the service of the notice".
On 16 January, 1967 the OfficerCommanding wrote to the Special Judge for Rajasthan that in exercise of the powers conferred upon him by Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 the Officer Commanding gave notice that the four Officers meaning thereby the appellants belonged to his Unit and that the appellants would be tried by Court Martial under the for the offences alleged to have 884 been committed by the in as set out in the notice of the Special Judge and that the Court of the Special Judge was requested to stay the proceedings against the four appellants with immediate effect.
The letter concluded by stating that the four appellants might be delivered immediately to Major R. N. Kesar who was carrying the notice to be handed over to the Court by hand.
On 17 January, 1967 the State of Rajasthan made an appli cation before the Special Judge that under section 122 of the army Act, 1950 a period of three years was provided after which no Court Martial proceedings could be commenced against the Army Officers and the period of limitation was to be computed from the date of such offence.
The charges of conspiracy and corruption against the appellants were alleged to have been committed in the month of December, 1962 and the end of the year 1963 and as such, according to the State of Rajasthan, the limitation for the purpose of Court Martial expired with the close of the year 1966.
The State of Rajasthan submitted that the Special Judge took cognizance of the case on the basis of sanction granted by the Central Government and there were two orders one from the highest authority of the Government, namely, the President of India sanctioning the prosecution of the appellants by a competent criminal court and the other by an Officer Commanding for holding a Court Marlial and therefore the matter might be referred to the Central Government for clarification.
The Special Judge on 17 January, 1967 held that along with the appellants three civilians were charged with the commission of offence and they could not be tried by Court Martial.
The Special Judge requested the Com manding Officer to make a reference to the Central Government within seven days failing which the Special Judge would make a reference to the Central Government.
The Special Judge did not deliver the four appellants to the Commanding Officer.
On 28 January, 1967 the Officer Commanding, 123 Infantry Battalion (T.A.), Jaipur wrote to the Special Judge that the notice under Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 served by the Officer on the Special Judge by letter dated 16 January, 1967 might be treated ,as cancelled.
On 21 March, 1968 the appellants made an application before the Additional Special Judge, Jaipur that the Commanding Officer acted illegally and without jurisdiction in cancelling the earlier notice dated 16 January, 1967 and the Commanding Officer should have made a reference to the Chief of the Army Staff.
The appellants prayed that they might be handed over to the Commanding Officer in terms of the letter dated 17 January, 1967 issued by the Commanding Officer asking the Special Judge to deliver the appellants, to the Army authorities.
On 5 April, 1968 the Additional 885 Special Judge held that the Officer Commanding revised his discretion and intimated by letter dated 28 January, 1967 that the earlier notice dated 16 January, 1967 issued under Rule 5 requiring delivery of the appellants to the Army authorities for trial by Court Martial was cancelled and therefore the Special Judge would try the case and not deliver the appellants to the army authorities.
The appellants thereafter made an application to the High Court of Rajasthan under section 435 read with section 561 A of ,the Code of Criminal Procedure for quashing the proceedings before the Additional Special Judge and for directing the Special Judge to hand over the appellants to be tried by Court Martial.
The High Court by order dated 9 September, 1968 dismissed the revision application and directed the Special Judge, Rajasthan to conduct the trial expeditiously, because sufficient time had elapsed since the submission of The charge sheet by the Special Police Establishment Branch, Jaipur.
Counsel on behalf of the appellants contended that the order of the High Court was wrong for 3 reasons : First, that the Special Judge having issued a notice on 12 January, 1967 under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 19,52 to the Officer Commanding and having received a reply dated 16 January, 1967 from the Officer, the Special Judge had no jurisdiction to deal with an application of the State made on 17 January, 1967 and pass an order on 17 January, 1967 on the stay application that the Commanding Officer should make a reference to the Central Government.
The second contention was that the Commanding Officer had no power to cancel the intimation dated 16 January, 1967 by the subsequent letter dated 28 January, 1967.
Thirdly, it was said that the sanction for prose caution accorded by the Central Government had no relevance to section 549 of the Code of Criminal Procedure read with the Rules.
Counsel on behalf of the respondent on the other hand contended that the Officer Commanding by letter dated 28th January, 1967 cancelled the earlier notice dated 16th January, 1967 with the result that no Court Martial proceeding was to be commenced against the appellants.
It was said on behalf of the respondent that the competent military authority had power and jurisdiction to cancel the letter dated 16th January, 1967.
Secondly, it was said that the Special Judge had jurisdiction and authority to try and dispose of the case which was pending on 30th June, 1966 in the criminal court by virtue of the provisions contained in the Criminal Law Amendment (Amending) Act, 1966.
The third, contention was that the Special Judge, was justified in making an order on 17th January, 1967 requesting the competent military authority to make a reference to the Central Government failing which the Special Judge would make a reference to the Central Government.
886 In order to appreciate the rival contentions reference has to be made to sections 125 and 126 of the Any Act and Rules 3 to 9 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 made by the Central Government in exercise of the powers under section 549 of the Code of Criminal Procedure.
Sections 125 and 126 of the are framed for the purpose of ensuring that there is no conflict between the criminal court and the Court Martial.
Section 125 confers discretion on the Officer Commanding of the army corps division or brigade in which the accused is serving to decide before which court proceedings shall be instituted in respect of an offence legend to be committed by the accused.
If the decision will be for institution of proceedings before the Court Martial direction is given for detention of the accused in military custody.
Section 126 provides that where a criminal court having jurisdiction is of opinion that proceedings shall be instituted before it in respect of any alleged offence, the criminal court, may require the Officer Commanding mentioned in section 125, of the either to deliver the offender to the Magistrate or to postpone proceedings pending a reference to the Central Government.
Section 126(2) of the provides that the Officer Commanding shall either deliver the offender to the Magistrate or shall refer the question to the Central Government whose order upon such reference shall be final.
These two sections of the AnY Act do not leave any room for doubt that if after commencement of Court Martial proceedings the ordinary criminal court intends to proceed against an accused who is subject to, the control of the , the criminal court will have to adopt either of the two courses mentioned The order of the Central Government shall be final in cases of, reference by the criminal court to the Government.
In the present case there was in the beginning suggestion by the Officer Commanding of institution of Court Martial pro ceedings.
When the Special Judge found on the application made by the State on 17 January, 1967 that section 122 of the raised the bar of limitation with regard to initiation of Court Martial proceedings and further found that there were civilians.
charged along with the appellants, it was not unjustified in asking the Officer Commanding to make a reference to the Government in order to prevent any competition or conflict between the criminal courts and Court Martial.
On 17th January, 1967 as matters stood, the Special Judge had the intimation from the Officer Commanding that Court Martial proceedings would be instituted.
Therefore on a reading of section 126 of the Army 887 Act the Special Judge requested the Officer Commanding to refer the question to the Central Government for determination as to, the Court before which proceedings would be started.
Section 549 of the Code of Criminal Procedure empowers the Central Government to make Rules as to the case in which persons subject, to military, naval or air force law be tried by a court to which the Code of Criminal Procedure applies or by Court Maritial.
When any such person is brought before the Magistrate and charged with an offence for which he is liable to be tried either by a court or by Court Martial, the Magistrate ' shall have regard to such Rules and shalt in appropriate cases deliver him together with the statement of the, offence of Which he is accused to the Commanding Officer for the purpose of being tried by Court Martial.
There are 9 rules under section 549 of the Code of Criminal Procedure.
These Rules are called Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.
Broadly stated, rules 3 to 9 are, as follows Under rule 3, (a) a Magistrate may proceed against a person subject to military, naval or air force laws without being moved by 'a competent military, naval: or air force authority, or (b) by being moved by such authority.
, Under rule 4 if the Magistrate is of opinion that he will precede against such a person without being moved by the competent military, naval or air force authority, he shall give written notice, to the Commanding Officer of the accused and until the expiry of a period of seven days shall not (a) convict or acquit the accused, or (b) hear him in defence or (c) frame in writing a charge, or (d) make an order committing the accused for trial by the High Court or by the Court of Sessions under section 213 of the Code of Criminal Procedure Under Rule 5 where within, the period of seven days or at any time thereafter before the Magistrate has done any act or issued any order, the Commanding Officer gives notice to the Magistrate that the accused should be tried by Court Martial, the Magistrate shall stay the proceedings and if the accused is in his power or under this control the Magistrate shall deliver him to the relevant authority Under rule 6 where a Magistrate has been moved by the competent military, naval or air force Authority under rule 3(b) and the Commanding Officer subsequently gives notice to the Magistrate that the accused shall be tried by Court Martial, such Magistrate,.
if he has not before receiving such notice done any act or issued any order referred to in rule 4, shall stay proceedings and, if the accused is in his power, or under his control, shall deliver him to the relevant authority.
Under rule 7 where an accused person having been delivered by the Magistrate under rule 5 or 6 is not tried by a court martial for the offence of which he is accused, 888 or other effectual proceedings are not taken against him, the Magistrate shall report the circumstance to the State Government which may, in consultation with the Central Government take appropriate steps to ensure that the.
accused person is dealt with in accordance with law.
Under rule 8, where it comes to the notice of the Magistrate that a person subject to military, naval or air force law has committed an offence, proceedings in respect of which are instituted before him and that the presence of such a person cannot be procured unless through military, naval or air force, authorities the Magistrate may by a written notice require the Commanding Officer of such person either to deliver such a person to a Magistrate to be named in the said notice for being proceeded against according to law, or to stay the proceedings against such person before the court martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceedings should be instituted.
Under rule 9 where a person subject to military, naval or air force law has committed an offence which in the opinion of the competent military, naval or air force authority, as the case may be, ought to be tried by a Magistrate in accordance with the civil law in force or where the Central Government has on a reference mentioned in rule 8, decided that proceeding$ against such person should be instituted before a Magistrate the Commanding Officer of such person shall after giving a written notice to the Magistrate concerned, deliver such person under proper escort to that Magistrate.
These Rules enjoin coming of criminal courts and Court Martial.
Before proceeding against the person subject to military law, the Magistrate is required to give notice to the Commanding Officer.
If within the period of seven days or before the Magistrate has done, any, act or issued any order the Commanding Officer gives notice that the accused should be tried by a Court Martial the criminal court shall stay proceedings.
If thereafter the court martial proceeding is not taken the Magistrate may report to the State Government which may in consultation with the Central Government take appropriate steps to ensure that the accused is dealt with in accordance with law.
Where.
it comes to the notice of the Magistrate that proceedings ,,ought to be instituted before him he may by written notice require the Commanding Officer to deliver the accused to the 'Magistrate or require the Commanding Officer to stay the Court ',Martial proceedings if instituted and to make a reference to the ,Central Government for determination as to the Court before which the proceedings shall be instituted.
Rule 8 again supports The step taken by the Magistrate in the present case, on 17th 889 January, 1967 when he required the Commanding Officer to make a reference to the Central Government.
Under rule 9 if the relevant authority of the armed forces is of opinion that the criminal court ought to try the offender or if the Central Government on a reference to it is of similar opinion the offender is delivered to the Magistrate.
Rule 9 is also attracted in the present case by reason of two features, viz., the Officer Commanding on 28th January, 1967 informed that no Court Martial proceeding would be instituted, and, secondly, the military authorities never asked the criminal court to deliver the appellants to the military authority.
The facts and circumstances indicate that the competent military authority formed the opinion that the appellants should be tried by the Special Court.
This Court in the case of Ram Sarup vs The Union of India(1) considered the question whether section 125 of the could be said to be discriminatory and violative of Article 14 of the Constitution.
In that case Ram Sarup who was subject to the was tried by the General Court Martial found guilty and sentenced to death.
He then filed a petition under Article 32 of the Constitution for a writ of habeas corpus and a writ of certiorari setting aside the order of the Court Martial and the order of the Central Government.
It was contended there that section 125 of the left to the unguided discretion of the Officer mentioned in that section to decide whether the accused should be tried by a court martial or by a criminal 'court.
This Court repelled that contention and held "there is sufficient material in the Act which indicates policy which is to a guide for exercising discretion and it is expected that the discretion is exercised in accordance with it.
The Magistrate could question it and the Government in case of difference of opinion between the views of the Magistrate and the Army authorities decide the matter finally".
In Ram Sarup 's case (supra) this Court further examined the meaning of sections 125 and 126 of the and section 549 'of the Code of Criminal Procedure and Rues 3 to 9 of the Criminal Courrts Court Martial (Adjustment of Jurisdiction) Rules, 1952 made under the Code of Criminal Procedure and laid down two pro,positions; First, if the Magistrate will find that the military authorities do not take effectual proceedings under the within a reasonable time the Magistrate can report the cirCumstance to the State Government which may in consultation with the Central Government.take appropriate steps to ensure that the accused is dealt with in accordance with law.
Secondly, whenever there will be difference of opinion between the criminal (1) ; 890 court and the military authorities about the forum where an accused is to be tried for the particular offence committed by him, final choice about the forum of the trial of a person accused of a civil offence meaning thereby an offence triable by criminal court rests with the Central Government.
This Court in the recent decision in Som Datt Datta vs Union of India & Ors.(1) considered the effect of rule 3 of the Rules framed under section 549 of the Code of Criminal Pro cedur The petitioner in that case made an application under Article 32 for a writ of certiorari for quashing the proceedings before the Court Martial whereby he was found guilty of charges under sections 304 and 149 of the Indian Penal Code and sentenced to 6 years ' rigorous imprisonment.
The contention in that case was that having regard to the provisions of section 125 of the and having further regard to the fact that the Army Officer had in the first instance decided to hand over the matter for investigation to the Civil Police and by reason of absence of notice under Rule 5 of the Rules under section 549 of the Code of Criminal Procedure that the petitioner should be tried by Court Mar tail, the criminal court alone had jurisdiction under rule 3 to try the petitioner.
This Court held that the action of the Officer under section 125 of the constituting a court martial indicated that decision was taken under section 125 of the for institution of Court Martial proceedings.
Rule 3 was said to be applicable to a case where the Police had completed the investigation and the accused was brought before the Magistrate after submission of the charge sheet.
Rule 3 could not be invoked where the Police metered started investigation.
In Some Datt Datta 's case (supra) this Court said about sections 125 and 126 of the "These two sections of the provide a satisfactory machinery to resolve the conflict of jurisdiction having regard to the exigencies of the situation in particular case.
" In the present case the special Judge gave notice to the Officer Commanding.
The Officer Commanding had first said that Court Martial proceedings would be instituted.
The Officer Commanding thereafter cancelled that intimation.
There is no further aspect of conflict between the criminal court or the Court Martial in the present case.
The appellants contended that they should be delivered to the Army authorities.
The Army authorities did not want delivery of the appellants to them for any Court Martial proceedings.
On the contrary, the Army authorities indicated in no uncertain terms that the Special Judge should proceed with the case.
When Special Judge asked the Army authorities to make a reference (1) ; 891 to the Government the Army authorities instead of making a reference to the Government cancelled their first intimation about ,the institution of Court Marial proceedings with the result that the Officer Commanding expressed the opinion that the appellants ought to be tried by a Magistrate in accordance with law of the land.
This Court in the recent unreported decision in Joginder Singh vs State of Himachal Pradesh(1) considered the question as to whether the trial and conviction by the Assistant Sessions Judge in respect of an offence, under section 376 of the Indian Penal Code violated provisions of the read with criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.
The contention in that case was that the criminal court did not follow the provisions contained in section 126 of the read with rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.
It was particularly emphasised in that case that it was for the competent officer to decide in the first instance that the appellant should be tried by Court Martial.
This Court referred to the earlier decision of this Court in Major E. G. Barsay vs State of Bombay (2) for the proposition that there was no exclusion of Jurisdiction of the ordinary criminal courts in respect of offences which are also triable by Court Martian.
Sections 125 and 126 of the leave no doubt in that matter.
Rule 3 (a) of the Criminal Courts and Court Martial (Adjustment of Juris diction) Rules also indicates that the criminal court can of its own motion start proceeding against an accused who is subject to the .
The several provisions of the and the Rules also indicate that the criminal court is not powerless when it is of opinion that the case should be tried in a criminal court and in case of conflict between the criminal court and the Court Martial the order of the Central Government is final decision as to the forum of trial of the offence.
In Joginder Singh 's case (supra) this Court examined the Rules and said that the absence of a notice under rule 4 was not fatal in the facts and circumstances of the case because the competent military authority knowing the nature of the offence released the accused from military custody and handed him over to the civil authorities, and the action amounted to a decision by the military authorities that the accused in that case was to be tried by an ordinary criminal court and not by Court Martial.
The provisions of the , the Rules under section 549 of the Code of Criminal Procedure and the decision of this (1) Criminal Appeal No.34 of 1969 decided on 30 11 1970 (2) ; 892 Court all support the conclusion that the Special Judge in the present case was justified in asking the Officer Commanding to make a reference to the Central Government and that the Officer Commanding in the facts and circumstances of the case expressed the opinion that the appellants should be tried by criminal courts because there would in fact be no Court Martial proceedings.
The contention on behalf of the appellants that the Officer Commanding having once exercised the discretion under rule 5 could not cancel the discretion is unacceptable.
The Officer Commanding upon consideration of facts and circumstances and particularly in the context of the communication of the Special Judge on 17th January, 1968 intimated on 28 January, 1967 that the previous letter dated 16 January, 1967 was cancelled.
There are no allegations of malafide or abuse of power to challenge the propriety of the exercise of power and discretion.
The Officer Commanding did not lack authority of jurisdiction to communicate to the Special Judge that Court Martial proceedings would not be instituted.
The Criminal Law Amending Act , 1966 being Act No. 22 of 1966 has an important bearing on the present appeal.
Section 5 of Act 22 of 1966 is as follows : "(1) Notwithstanding anything contained in this Act or in the principal Act as amended by this Act, (a) cases pending immediately before the 30th day of June, 1966, before a Special Judge in which one or more persons subject to military naval or air force law is or are charged with and tried for an offence under the principal Act together with any other person or persons not so subject, and (b) cases pending immediately before the said date before a Special Judge in which one or more persons subject to military, naval or air force law is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons shall be tried and disposed of by the special Judge.
(2) Where in any case pending immediately before the 30th day of June, 1966, before a special Judge one or more persons subject to military naval or air force law is or are alone charged with and tried for an offence under the principal Act and charges have not been framed against such person or persons before the said date, 893 Or where, on appeal or on revision against any sentence passed by a special Judge in any case in which one or more persons so subject was or were alone tried, the Appellate Court has directed that such person or persons be, retired and on such retrial charges have not been framed against such person.
or persons before the said date, then, in either case, the special Judge shall follow the procedure laid down in section 549 of the Code of Criminal Procedure, 1898, as if special Judge were a Magistrate.
The question is whether the present appeal relates to a case Pending immediately before 30 June, 1966 before a Special Judge within the meaning of section 5(1)(a).
Sanstion was accorded on 29 October, 1965 under section.
197 of the Code of Criminal Procedure.
A charge sheet was submitted before the Special.
Judge on 27 January, 1966.
On 5 March, 1966 the case was adjourned to 4 July, 1966 at the request of the Public Prosecutor for enabling the Public Prosecutor to supply the copies of documents envisaged by section 113 of the Code of Criminal Procedure.
The case was numbered 4/66/Spl.
The word 'pending 9 came up for consideration before this Court in Asgarali Nazarali Singaporawalla vs The State of Bombay(1).
Criminal Law Amendment Act.
1952 provided for the trial of all offences under section 161, 165 or 165 A of the Indian Penal Code or sub section (2).
of section 5 of the Prevention of Corruption Act, 1947 exclusively by Special Judges and directed the transfer of all such trial pending on the date of the, coming into force of the Act to Special Judges.
The Presidency Magistrate continued the trial and acquitted the appellant.
Upon appeal by the State Government the High Court held that from the date of the commencement of the.
Act the Presidency Magistrate lost all jurisdiction to continue I the trial and ordered retrial ' by the Special Judge.
It was contended that on the date of the coming into force of the Criminal Law Amendment Act, 1952, viz., 28 July, 1952, the case was not pending because no Special Judge was appointed until 26 September, 1962 and the trial also came to an end on 26 September, 1962.
This Court did not accept that contention because the, accused was not called upon his defence on 28 July, 1962 and the examination of the.
accused ' under section 342 of the Code of Criminal Procedure took Place after that date and the accused filed his writer statement on 14 August, 1952 and the addresses by the prosecution as well as the defence continued right UP to 26 September, 1952.
The word 'pending ' will ordinarily mean that the matter is not concluded and (1) 8 94 the court which has cognizance of it can make an order on the matter in issue.
The test is whether any proceedings can be taken in the cause before the court or tribunal where it is said to be pending.
The answer is that until the case is concluded it is pending.
Judged by these tests it will appear that this present appeal relates to a case pending before 30 June, 1966.
The next question is as to what meaning should be given to the words 'charged with and tried for an offence under the principal Act ', occurring in section 5(i)(a).
Counsel for the appellants contended that the words "charged with and tried for an offence" would mean that charges 'had been actually framed and trial commenced.
There is a distinction between clauses (a) and (b) of sub section (1) of section 5 of Act 22 of 1966.
Clause (a) deals with persons who are subject to the military, naval or air force law being charged with and tried for an offence together with a person or persons not so subject whereas clause (b) deals only with persons who are subject to military, naval or air force law.
In the present case, the appellants are persons who were subject to military law and they were charged along With civilians.
Therefore, clause (a) is attrached.
It is in connection with a case which concerns only persons subject to military, naval or air force law that under section 5(1)(b) it is en.acted that a case is not only to be pending before 30 June, 1966 before a Special Judge but that charges should also have been framed against such persons.
The absence of framing of charges ,in clause (a) and requirement of framing charges in clause (b) repels the construction suggested by counsel for the appellants that charges should have been framed in the present case in order to make it a case pending within the meaning of section 5 (1) (a) of the 1966 Act.
The words, "charged with and tried for an offence" mean that there are accusations and allegations against the person.
The words "charged with" are used in section 5 (1) (a) in contra distinction to the words "charges have already been framed" in section 5 (1) (b) of the Act.
Therefore the use of separate words in the two separate clauses: (a) and (b) is significant to indicate that the statute speaks of the words charged with" in clause (a) not in the sense of "charges have been framed" in clause (b).
The legislative intent is abundantly clear from the use of separate words.
Sections 251, 251A, 252, 253 and 254 of the Code of Criminal Procedure throw some light as to the meaning to be given to the words "charged with and tried for an offence '.
In the trial of warrant cases instituted on a police report, the Magistrate is to ;follow the procedure specified in section 251A and the present is one such.
Section 251A contemplates that the Magistrate on the commencement of the trial shall satisfy himself that 89 5 the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them he shall cause them to be so furnished.
In the present case, it will appear that in the month of March, 1966 the Public Prosecutor made an application to the Special Judge for adjournment of the case till the month of July, 1966 to enable copies of papers to be given to the accused under section 173 of the Code of Criminal Procedure.
Under section 251A(2) if, upon consideration of all the documents referred to in section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.
This provision that the Magistrate may discharge the accused where the charge against the accused appears to be groundless indicates that the words "charged with" cannot be said to mean framing of a charge.
It is because the charge or the allegation or accusation against the accused is groundless that he is.
discharged.
Again, in section 252 it will appear that the Magistrate in any case instituted otherwise than on a police report shall proceed to hear the complainant and take evidence` in support of the prosecution.
Under section 253, if, upon taking the evidence referred to in section 252, and making such examination of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out, the Magistrate shall discharge him.
The provisions contained in sections 252 and 253 are cases where the Magistrate deals with warrant case instituted not on a police report but upon a complaint.
These three sections i.e. sections 251A, 252 and 253 indicate that an accused can be discharged by the Magistrate if the charge appears to be groundless.
Charge is framed under section 254 of the Code of Criminal Procedure when the Magistrate upon evidence and examination is of opinion that there is ground for presuming that the accused has committed an offence which the Magistrate is competent to try and which could be ordinarily punished by them that he shall frame in writing a charge against the accused.
The charge under section 255 of the Code of Criminal Procedure is read and explained to the accused and he shall be asked whether he is guilty or has any defence to make.
The Special Judge therefore has jurisdiction to try and dispose of the case.
It is a case pending before 30 June, 1966 and under Act 22 of 1966 it is to be tried and disposed of by the Magistrate.
The letter dated 28 January, 1966 is an additional reason to indi L1100SupCI/71 896 cate that the appellants are not required to be delivered to the competent military authorities.
It is also in evidence that no court martial proceeding is pending and the appellants are to be Tried by the Special Judge.
The judgment of the High Court is upheld.
The appeal therefore fails and dismissed.
R. K. P. section Appeal dismissed.
| The respondents organised a money circulation scheme.
For alleged cheating and misrepresentation in connection therewith they were convicted by the Sessions Judge, Bhopal under section 120B and section 420 Indian Penal Code.
The High Court however acquitted them.
The State of Madhya Pradesh by special leave appealed to this Court.
In support of the appeal the following facts were stressed: (1) None of the 200 odd persons who purchased the policy issued under the scheme received Rs. 2309.50, the assured amount in the policy.
(2) The large amounts of Rs. 90,750 and Rs. 5,52,587.95 were detained by the respondents and showed the extent of wrongful gain by them.
(3) The policy holders had no control over other policy holders which would assure continuance of the scheme.
(4) Merely because some persons receive some amount it could not be inferred that the scheme was not fraudulent.
(5) The evidence showed that the names entered in columns 3, 4, 5, 6 and 7 of the pamphlet, issued by the respondents were bogus and that 2696 money orders were sent back to the remitter, as the persons were not traceable because of wrong address on the form.
HELD: As held by the Calcutta High Court in Radha Ballav Pal 's case and Haridas Barat 's case there was an element of speculation in money circulation schemes, but those who ran them could not be held guilty of cheating unless there was misrepresentation or dishonest concealment of facts.
It could not be said in the present case that the respondents had deceived the public and thereby induced it to contribute money to the scheme.
The appeal must accordingly fail.
[131H 132F] Radha Ballav Pal vs Emperor, A.I.R. 1939 Cal.
327 and Hari Das Barat vs Emperor, , approved.
Nadir Barga Zaidi vs State of U.P.
A.I.R. 1960 All. 103 and In re M. K. Srinivasan, A.I.R. 1944 Mad. 410, referred to.
It is for the legislature to intervene if it wants to protect people who participate in these schemes, knowing that sooner or later the schemes are bound to fail.
[132F G]
|
iminal Appeal No. 43 of 1952 and Petition No. 173 of 1952.
Appeal by Special Leave granted by the Supreme Court on the 11th May, 1951, from the Judgment and Order dated the 11th December, 1950, of the High Court of Judicature at Hyderabad (Manohar Prasad J.) in Criminal Appeal No. 598 of 1950, and Petition under Article 32 of the Constitution.
A. A. Peerbhoy (J. B. Dadachanji, with him) for the appellant.
V. Rajaram Iyer, Advocate General of Hyderabad (R. Ganapathy Iyer, with him) for the respondent.
March 30.
The Judgment Of PATANJALI SASTRI C.J., MUKHERJEA, section R. DAS, and BHAGWATI JJ.
was delivered by MUKHERJEA J. GHULAM HASAN J delivered a separate but concurring judgment.
MUKHERJEA J.
The appellant before us, who in the year 1947 was a Revenue Officer in the District of Warangal within the State of Hyderabad, was brought to trial before the Special Judge of Warangal appointed, under Regulation X of 1359F. on charges of murder, attempt to murder, arson, rioting and other offences punishable under various sections of the Hyderabad Penal Code.
The offences were alleged to have been committed on or about the 9th of December, 1947, and the First Information Report 664 was lodged, a considerable time afterwards, on 31st January, 1949.
On 28th August, 1949, there was an order in terms of section 3 of the Special Tribunal Regulation No. V of 1358 F., which was in force at that time, directing the appellant to be tried by the Special Tribunal (A).
The accused being a public officer, the sanction of the Military Governor was necessary to prosecute him and this sanction was given on 20th September, 1949.
On 13th December, 1949, a new Regulation, being Regulation No. X of 1359F., was passed by the Hyderabad Government which ended the Special Tribunals created under the previous Regulation on and from 16th December, 1949 ; and consequently upon such termination pro vided for the appointment, power and procedure of Special Judges.
Section 4 of the Regulation authorised the Chief Minister to appoint, after consulting the High Court, as many Special Judges as may from time to time be required for the purpose of section 5.
Section 5(1) laid down that every Special Judge shall try (a) such offences of which the trial was immediately before the 16th December, 1949, pending before a Special Tribunal deemed to have been dissolved on that date, and are made over to him for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf; and (b) such offences as are after the commencement of this Regulation made over to him for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf.
On 6th January, 1950, the case against the appellant was made over to Dr. Lakshman Rao, a Special Judge of Warangal, who was appointed under the above Regulation under an order of the Civil Administrator, Warangal, to whom authority under section 5 of the Regulation was delegated by the Chief Minister and on the same date the Special Judge took cognizance of the offences.
The trial commenced on and from 11th February, 1950, and altogether 21 witnesses were examined for the prosecution and one for 665 the defence.
The Special, Judge, by his judgment dated the 8th of May, 1950, convicted the appellant of all the offences with which he was charged and sentenced him to death under section 243 of the Hyderabad Penal Code (corresponding to section 302 of the Indian Penal Code) and to various terms of imprisonment under sections 248, 368, 282 and 124 of the Code of Hyderabad (which correspond respectively to sections 307, 436,342 and 148 of the Indian Code).
Against this judgment the appellant took an appeal to the High Court of Hyderabad and the appeal was first heard by a Division Bench consisting of Shripat Rao and section Ali Khan JJ.
On 29th September, 1950, the learned Judges delivered differing judgments, Shripat Rao J. taking the view that the appeal should be dismissed, while the other learned Judge expressed the opinion that the appeal ought to be allowed and the accused acquitted.
The case was then referred to Mr. Justice Manohar Prasad, as a third Judge and by his judgment dated the 11th of December, 1960, the learned Judge agreed with the opinion of Shripat Rao J. and dismissed the appeal upholding the conviction and sentences passed by the Special Judge.
The appellant then presented an application for leave to appeal to this court.
That application was rejected by the High Court of Hyderabad, but special leave to appeal was granted by this court on 11th May, 1951, and it is on the strength of this special leave that the appeal has come before us.
The present hearing of the appeal is confined to certain constitutional points which have been raised by the appellant attacking the legality of the entire trial which resulted in his conviction on the ground that the procedure for trial laid down in Regulation X of 1359F. became void after the 26th of January, 1960, by reason of its being in conflict with the equal protection clause embodied in article 14 of the Constitution.
These grounds have been set forth in a separate petition filed by the appellant under article 32 of the Constitution and following the procedure adopted in the case of Qasim Razvi [Case No. 276 666 of 1951(1)],we decided to hear arguments on the con stitutional questions as,preliminary points in the appeal itself.
Whether the appeal would have to be heard further or not would depend on the decision which we arrive at in the present hearing.
The substantial contention put forward by Mr. Peerbhoy, who appeared in support of the appeal, is that as the procedure for trial prescribed by Regulation X of 1359F. deviated to a considerable extent from the normal procedure laid down by the general law and deprived the accused of substantial benefits to which otherwise he would have been entitled, the Regulation became void under article 13(1) of the Constitution on and from the 26th of January, 1950 The conviction and the sentences resulting from the procedure thus adopted must, therefore, be held illegal and inoperative and the judgment of the Special Judge as well as of the High Court should be quashed.
The other point raised by the learned counsel is that the making over of the case of the appellant to the Special Judge was illegal as the authority to make over such cases was not properly delegated by the Chief Minister to the Civil Administrator in the manner contemplated by section 5 of the Regulation.
As regards the first point, it is to be noted at the out set that the impugned Regulation was a pre Constitution statute.
In determining the validity or otherwise of such legislation on the ground of any of its provisions being repugnant to the equal protection clause, two principles would have to be borne in mind, which were enunciated by the majority of this court in the case of Qasim Razvi vs The State of Hyderabad (1), decided on the 19th of January, 1953, where the earlier decision in Lachman Das Kewalram vs The State of Bombay(1) was discussed and explained.
Firstly, the Constitution has no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for enforce ment of rights and liabilities accrued before the (1) (2) ; 667 coming into force of the Constitution.
Secondly, article 13(1) of the Constitution does not necessarily make the whole statute invalid even after the advent of the Constitution.
It invalidates only those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution.
The statute becomes void only to the extent of such inconsistency but otherwise remains valid and operative.
As was said in Qasim Razvi 's case(1) the fact that " trial was continued even after 26th January, 1950, under the same Regulation would not neces sarily render the subsequent proceedings invalid.
All that the accused could claim is that what remained of the trial must not deviate from the normal standard in material respects, so as to amount to a denial of the equal protection of laws within the meaning of article 14 of the Constitution.
For the purpose of determining whether the accused was deprived of such protection, we have to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case.
" As has been stated already, the Special Judge took cognizance of this case on the 5th of January, 1950, ' which was prior to the advent of the Constitution.
It must be held, therefore, that the Special Judge was lawfully seized of the case, and it is not possible to say that the appointment of a Special Judge was in itself an inequality.
in the eye of the law.
The trial undoubtedly commenced from the 11th of February, 1950, that is to say, subsequent to the coming into force of the Constitution, and the question that requires consideration is, whether the procedure that was actually followed by the Special Judge acting under the impugned Regulation did give the accused the substance of a normal trial, or, in other words, whether he had been given a fair measure of equality in the matter of procedure ? (1) 668 Mr. Peerbhoy lays stress on two sets of provisions in the impugned Regulation which, according to him, differentiate the procedure prescribed in it from that laid down under the ordinary law.
The first set relates to the elimination of the committal proceeding and the substitution of warrant procedure for the sessions procedure in the trial of offences.
The other set of provisions consists of those which deny to the accused the rights of revision and transfer and withdraw from him the safeguards relating to confirmation of sentences.
The first branch of the contention, in our opinion, is unsustainable having regard to our decision in Qasim Razvi 's case(1).
It was pointed out in that case that under the Hyderabad Criminal Procedure Code the committal proceeding,is not an indispensable preliminary to a sessions trial.
Under section 267A of the Hyderabad Criminal Procedure Code, the Magistrate is quite competent, either without recording any evidence or after recording only a portion of the evidence, to commit an accused for trial by the sessions court if, in his opinion, there are sufficient grounds for such committal.
If the committal proceeding is left out of account as not being compulsory, and its absence did not operate to take away the jurisdiction of the Special Judge to take cognizance of the case before the Constitution, the difference between a warrant procedure prescribed by the impugned Regulation to be followed by the Special Judge after such cognizance was taken and the sessions procedure at that stage applicable under the general law is not at all substantial, and the minor differences would not bring the case within the mischief of article 14 of the Constitution.
This question having been already decided in Qasim Razvi 's case(1) it is not open for further arguments in the present one.
With regard to the other set of provisions, the contention of Mr. Peerbhoy is based entirely upon the language of section 8 of the Regulation.
In our opinion, the interpretation which the learned counsel seeks to put upon the section is not quite correct, (1) 669 and it seems to us that not only the right of an accused to apply for transfer of his case has not been taken away by this section, but the right of revision also has been left unaffected except to a small extent.
Section 8 of the Regulation X of 1359 F. is in these terms: "All the provisions of section 7 of the said Regulation shall have effect in relation to sentences passed by a Special Judge as if every reference in the said Regulation to a Special Tribunal included a reference to a Special Judge.
" The expression "said Regulation" means and refers to Regulation V of 1358 F. and section 7 of the said Regulation provides inter alia that "there shall save as here in before provided, be no appeal from any order or sentence passed by a Special Tribunal, and no court shall have authority to revise such order or sentence or to transfer any case from Special Tribunal or have any jurisdiction of any kind in respect of any proceeding before a Special Tribunal and no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever.
" It will be noticed that what section 8 of the impugned Regula tion does, is to incorporate, not the whole of section 7 of the previous Regulation, but only such portion of it as relates to sentences passed by a Special Judge.
By "sentence" is meant obviously the final or definitive pronouncement of the criminal court which culminates or ends in a sentence as opposed to an "order", interlocutory or otherwise, where no question of infliction ' of any sentence is involved.
The scope of section 7 of the earlier Regulation is thus much wider than that of present section 8 and all the limitations of the earlier statute have not been repeated in the present one.
The result, therefore, is that revision against any order which has hot ended in a sentence is not interdicted by the present Regulation, nor has the right of applying for transfer, which has no reference to a sentence, been touched at all.
These rights are expressly preserved by section 10 of the present 87 670 Regulation, which makes the Code of Criminal 'Procedure applicable in all matters except where the Regulation has provided otherwise.
Reading section 8 of the present Regulation with section 7 of the earlier one, it may be held that what has been taken away from an accused is, in the first place, the right of revision against non appealable sentences, and in the second place, the provisions relating to confirmation of sentences.
The first one is immaterial for our present purpose, as no question of any non appealable sentence arises in the case before us.
The second is undoubtedly a discriminatory feature and naturally Mr. Peerbhoy has laid considerable stress upon it.
Section 20 of the Hyderabad Criminal Procedure Code lays down the rule relating to confirmation of sentences in the following manner: Every Sessions Judge may pass any sentence authorised by law, but such sentence shall not be carried into effect until (1) in the case of a sentence of 10 years 'impri sonment or more, the appropriate Bench of the High Court; (2) in the case of life imprisonment, the Government; and (3) in the case of death sentence, H.E.H. the Nizam, shall have assented thereto.
Section 302 provides that when a sessions court as passe a sentence of death 'or of life imprisonment or of imprisonment exceeding 10 years, the file of the case shall be forwarded to the High Court and the execution of the sentence stayed until manjuri is given in accordance with section 20.
Section 307 further provides that when the High Court has affirmed a death sentence or sentence of life imprisonment, then its opinion together with the file of the case shall be forwarded ' for ratification to the Government within one week and the sentence shall not be carried into effect until after the assent thereon of H.E.H. the Nizam in the case of death sentences and of the Government in the case of 671 sentences of life imprisonment.
Mr. Peerbhoy 's complaint is that the sentence imposed upon his client has, in the present case, neither been ' confirmed by the High Court, nor by H.E.H. the Nizam.
This, he says, is a discrimination which has vitally prejudiced his client and does afford a ground for setting aside the sentence in its entirety.
admits of no dispute that section 8 of Regulation X of 1359F. must be held to be invalid under articles 13(1) and 14 of the Constitution to the I extent that it takes away the provision relating to confirmation of sentences as is contained in the Hyderabad Criminal Procedure Code.
This, however, is a severable part of the section and being invalid, the provisions of the Hyderabad Criminal Procedure Code with regard to the confirmation of sentences must be followed.
Those provisions, however, do not affect in any way the procedure for trial laid down in the Regulation.
All that section 20 of the Hyderabad Criminal Procedure Code lays down is that sentences of particular description should not be executed unless assent of certain authorities to the same is obtained.
The proper stage, therefore, when this, section comes into operation.
is the stage of the execution of the sentence.
The trial or conviction of the accused is not affected in any way by reason of the withdrawal of the provision relating to confirmation of sentences in the Regulation.
The withdrawal is certainly inoperative and in spite of such withdrawal the accused can insist on the rights provided 'for under the general law.
In the case before us the records show that no reference was made by the Special Judge after he passed the sentence of death upon the appellant in the manner contemplated by section 307 of the Hyderabad Code, which corresponds to section 374 of the Indian Criminal Procedure Code.
There was, however, an appeal preferred by the accused and the entire file of the case came up before the High Court in that connection.
As said already, the Division Bench, which heard the appeal, was divided in its 672 opinion and consequently no question of confirmation of the death sentence could or did arise before that Bench.
The question was, however, specifically raised towards the conclusion of the arguments before the third Judge, to whom it was referred; and it is significant to note that some time before that a Full Bench of the Hyderabad High Court had decided that the provision in the Regulation relating to confirmation of sentences was void and inoperative and consequently in spite of the said provision the sentences were required to be confirmed in accordance with the general law.
The question was then raised whether the confirmation was to be made by the third Judge alone or it had to be done by the two Judges who agreed in dismissing the appeal.
Mr. Justice Manohar Prasad decided that as the whole case was referred to him, he alone was competent to make the order for confirmation of the death sentence and he did actually confirm it by writing out in his own hand the order passing the sentence of death according to the provision laid down in the Hyderabad Code.
Mr. Peerbhoy contends that this confirmation was illegal and altogether invalid as not being made in conformity with the provisions of the Hyderabad Code.
We do not want to express any opinion on this point at the present moment.
There appears on the face of the record an order for confirmation of the death sentence made by a Judge of the High Court.
If this order is not in conformity with the provisions of law, the question may be raised before this court when the appeal comes up for hearing I on its merits.
This is, however, not a matter which affects the constitutional question with which only we are concerned at the present stage.
Under section 20 of the Hyderabad Code, as mentioned above, a death sentence could not be executed unless the assent of H.E.H. the Nizam was obtained.
Mr. Peerbhoy points out that this has not been done in the present case.
To that the obvious reply is that consent of H.E.H. the Nizam is necessary only before the sentence is executed, and that stage apparently 673 has, not arrived as yet.
The final judgment of the High Court in this case was passed on 11th December, 1950.
There was an application for leave to appeal presented by the accused immediately after that date and this application was rejected on 2nd January, 1951.
On the 5th of February, 1951, an application for special leave was made to this court and the execution of the death sentence was stayed during this period under orders of the High Court itself.
The special leave was granted by this court on 11th May, 1951, and the carrying out of the death sentence has been stayed since then under our orders, pending the disposal of the appeal.
The question as to whether any further confirmation by H.E.H. the Nizam is necessary could only arise if and when the death sentence passed by the courts below is upheld by this court.
Mr. Peerbhoy points out that since the 1st April, 1951, the Indian Criminal Procedure Code has been introduced in the State of Hyderabad and there is no power in the Nizam now to confirm a sentence of death, although such confirmation was necessary at the time when the sentence was pronounced both by the Special Judge as well as by the High Court on appeal.
We do not think that it is at all necessary for us at the present stage to discuss the effect of this change of law.
If the assent of the Nizam to the execution of a death sentence is a matter of procedure, it may be argued that the procedural law which obtains at the present moment is the proper law to be applied.
On the other hand, if it was a question of substantive right, it may be open to contention that the law which governed the parties at the date when the trial began is still applicable.
We are, however, not called upon to express any opinion on this point and we deliberately decline to do so.
We also do not express any opinion as to whether the rights which could be exercised by the Nizam under section 20 of the Hyderabad Criminal Procedure Code were appurtenant to his prerogative as a sovereign or were statutory rights exercisable by the person designated in the statute.
These matters 674 may be considered when the appeal comes up for final hearing on the merits.
Our conclusion is that there has not been any discrimination in matters of procedure in this case which can be said to, have affected f the trial prejudicially against the accused and the accused is not entitled to 'have his conviction and sentence set aside on that ground.
The other question raised by the appellant relates to delegation of the authority by the Chief Minister to make over cases for trial by the Special Judge.
Mr. Peerbhoy lays 'stress on section 5 (b) of the Regulation which speaks of offences being " made over to the Special Judge for trial by the Chief Minister or by a person authorised by the chief Minister in this behalf ", and it is argued that this section requires that the delegatee is to be mentioned by name.
What the Chief Minister has done is that he issued a notification authorising all civil administrators of the districts to exercise within their respective jurisdictions the powers of the Chief Minister under the said section.
This, it is argued, is not in compliance with the provisions of the section.
We do not think there is any substance in this contention.
The delegates can certainly be described by reference to his official designation and the authority may be vested in the holder of a particular office for the time being.
This, we think, is quite a proper and convenient way of delegating the powers which are exercisable by the Chief Minister.
In our opinion, the constitutional points raised by Mr. Peerbhoy fail.
The application under article 32 of the Constitution is thus rejected and the case is directed to be posted in the usual course for being heard on its merits.
GHULAM HASAN J. I concur in the order proposed by my learned brother Mr. Justice Mukherjea that the petition under article 32 of the Constitution be dismissed, but I deem it necessary to make a few observations in view of my dissenting judgment in Qasim Razvi 's case(1).
The majority judgment delivered by Mr. Justice Mukherjea on the.
19th January, 1953, in (1) [1952] S C R, 710.
675 Qasim Razvi 's case(1) while interpreting the decision in Lachmandas Kewalram Ahuja vs The State of Bombay(1) laid, down the principle that the mere fact that some of the provisions of the impugned Regulation are discriminatory on the face of it, is not sufficient to render the trial and the conviction void under article 14, read with article 13 (1) of the Constitution and that in such cases where the trial is continued after the 26th January, 1950, under the impugned Regulation, it is necessary to see whether the procedure followed after the material date was such as deprived the accused of the equal protection of laws within the meaning of article 14 of the Constitution and that if the accused under such procedure received substantially the benefits of the trial under the ordinary law, the trial and conviction cannot be held as void and illegal.
I take it that the majority decision is binding and that the principle enunciated by the majority is no longer open to question.
With this preliminary observation I must proceed to express my concurrence generally with the view taken by my learned brother Mr. Justice Mukherjea in the present case.
It is to be borne in mind that Regulation V of 1358 F. under which the Tribunal was constituted to try Qasim Razvi 's case was in material respects different from Regulation X of 1359 F. under which the Special Judge tried the petitioner Habeeb Mohammad.
I agree with my learned brother in holding that there was no flaw in making over the case of the petitioner for trial to the Special Judge under section 5 (b) of the Regulation.
The Special Judge took cognizance of the case before the Constitution came into force, but the entire evidence of the prosecution, unlike Qasim Razvi 's case, was recorded after the 26th of January, 1950.
The Regulation in question was challenged before us as being void under article 14 read with article 13(1) of the Constitution on the following grounds: (1) (2) 676 (1) that the Regulation excludes the committal proceedings, (2) that the procedure of the sessions trial is replaced by the warrant procedure, (3) that there is no right of transfer, (4) that there is no revision, (5) that the right of confirmation by the Nizam in case of sentences of death has been negatived.
As regards the first two grounds, Mr. Justice Mukherjea, following the view taken in Qasim Razvi 's case(1) has held that under section 267A 'of the Hyderabad Criminal Procedure Code committal proceedings are not compulsory and that there is no substantial difference , between the sessions trial and the warrant procedure which was followed in the petitioner 's case.
These two grounds of attack there.
fore disappear.
So far as grounds Nos.
(3) and (4) are concerned, I agree with Mr. Justice Mukherjea in his interpretation of section 8 of the Regulation and hold in concurrence with the view taken by him that the right to apply for transfer has not been taken away and that the right of revision has been denied only in so far as non appealable sentences are concerned.
The present is a case of murder and other serious offences which are undoubtedly all appealable.
The only discriminatory feature of the Regulation left therefore is that no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever contained in section 7 (2) of Regulation V of 1358F which is made applicable,under section 8 of Regulation X of 1359 F., in other words, that the right of the Nizam to confirm the death sentence has been taken away.
This is un questionably a valuable right available to the accused who is sentenced to death by the Sessions Judge or the High Court as the case may be.
We were told by Mr. Peerbhoy, counsel for the petitioner, that no death sentence passed by the ' courts in Hyderabad during the last 50 years or go has ever been carried into effect and that the Nizam has always exercised (1) , 677 this right in favour of commuting the death sentence to.a sentence for life.
The denial of this right in the Regulation is discriminatory on the face of it and deprives the petitioner of a valuable right.
I concede, however, that this objectionable feature of the Regulation is severable from the other parts.
I further agree that the stage for the exercise of that right has not yet arisen, for the appeal of the petitioner is still pending in this court.
If the appeal is allowed, or the sentence is reduced, no question of the confirmation of the death sentence by the Nizam will arise.
If, however, the appeal is dismissed, it will be open to the petitioner to claim this right.
It would not be desirable at this stage to express an opinion whether this right is a substantive right which vests in the petitioner or one relating to a more matter of procedure, as that question will have to be considered and decided when the appropriate stage arrives.
I would, therefore, agree in dismissing the petition.
Petition dismissed.
Agent for the petitioner: Bajinder Narain.
Agent for the respondent : G. H. Rajadhyaksha.
| The appellants are a firm carrying on business in the United States of America.
The respondents are an Indian Firm.
These two firms entered into a contract in writing by which the appellant agreed to buy certain goods from the respondents.
An arbitration clause in the contract provided that disputes arising out of the contract are to be settled by arbitration in New York according to the rules of the American Arbitration Association.
Disputes having arisen the appellants referred them to arbitration.
The respondents thereupon filed a suit on the Original side of the Calcutta High Court for the cancellation of the contract and for the issue of a perpetual injunction restraining the appellants from taking steps in purported enforcement of the contract.
The appellants then filed a petition before the same High Court for the stay of that suit under section 34 of the .
This petition was heard by a Single Judge who held that the remedy of the party aggrieved by manner in which the proceedings are conducted by foreign Tribunal was to contest the proceedings according to the law applicable to the tribunal and that the respondents have not shown sufficient reasons for not granting stay.
In appeal under the Letters Patent the order was set aside and the appellants appealed with special leave.
The main question before this Court was whether the Court of first instance has or has not exercised its discretion properly in granting stay.
Held, that a clause in a commercial contract between mer chants residing in different countries to go to arbitration is 20 an integral part of the contract on the faith of which the contract is entered into, but that does not preclude the court having territorial jurisdiction from entertaining a suit at the instance of one of the parties to the contract even in breach of the covenant.
The court ordinarily requires the parties to resort for resolving disputes arising under a contract to the tribunal contemplated by them at the time of the contract.
The court may in such cases refuse its assistance in a proper case when the party seeking it is without sufficient reason resiling from the bargain.
It is for the court having regard to all the circumstances to arrive at a conclusion whether sufficient reasons are made out for refusing to grant stay.
Whether the circumstances in a given case make out sufficient reasons for refusing to stay a suit is essentially a question of fact.
In the present case all the evidence of the parties was in India, and the current restrictions imposed by the Government of India on the availability of foreign exchange, made it impossible for the respondents to carry their witnesses to New York for examination before the arbitrator.
The proceeding before the arbitrator would in effect be ex parte.
The High Court was therefore right in its conclusion, on a review of the balance of convenience, that stay should not be granted.
|
ivil Appeal No. 1 770 of 1972.
Appeal by Special Leave from the Judgment and order dated 30th November, 1971 of the Orissa High Court in O.J.C. No. 48 of 1968.
P. K. Chatterjee and Rathin Dass for the Appellant.
section V. Gupte, Attorney General and G. section Chatterjee for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
The short question raised in this appeal by special leave is whether section 8(1) of the Orissa Agricultural Income Tax Act, 1947 suffers from the vice of discrimination and as such hit by article 14 of the Constitution ? The appellant is the Mahant of Emar Math at Puri, which is an ancient public Hindu Religious Trust.
The trust owns considerable endowed properties both agricultural and non agricultural.
After the passing of the Orissa Agricultural Income Tax Act, 1947 (hereinafter called 'the Act '), the appellant as a trustee has been assessed in the status of an 'individual ' under the Act for the assessment years 1948 49 to 1967 68 in respect of the income derived from agricultural lands owned by the trust.
It appears that these assessments have been made after granting the exemption under section 8(1) of the Act which provides that "any sum derived from land held under such trust and actually spent for the said purposes (charitable or 658 religious purposes) shall not be included in the total agricultural income of such assessee".
By a Writ Petition No. 48 of 1968, filed under articles 226 and 227 of the Constitution, the appellant challenged the constitutional validity of section 8(1) of the Act under which the assessments were made principally on the ground that section 8(1) was discriminatory and hit by article 14 of the Constitution inasmuch as under the said provision in respect of non Muslim public trusts created for religious or charitable purposes the exemption contemplated therein was confined to such agricultural income as was actually spent for the public purposes of charitable or religious nature while in the case of Muslim trusts (wakfs) the entire agricultural income, whether spent for charitable or religious purposes or not, was exempt from the operation of the Act under section 9 of the Act.
The contention was refuted on behalf of the respondents.
On an examination of the provisions of sections 8 and 9 in the context of the scheme of the Act the Orissa High Court negatived the said contention and dismissed the Writ Petition on November 30, 1971.
The appellant has come up in appeal to this Court.
Since counsel for the appellant raised the self same contention before us in support of the appeal it will be desirable to set out the provisions of sections 8 and 9 of the Act in order to appreciate his submissions on the point.
Section 8 runs thus: "8.
Exemption of charitable or religious trusts: (1) Where the assessee is a trustee and the trust under which he holds the property is a trust, created for public purposes of a charitable or religious nature, any sum derived from land held under such trust and actually spent for the said purposes, shall not be included in the total agricultural income of such assessee.
(2) In this section purposes of a charitable nature include relief of the poor, education, medical relief and advancement of any other object of general public utility.
" Section 9 runs thus: "9.
Exemption of Wakf alal aulad.
All agricultural income of Muslim trusts referred to in section 3 of the Musalman Wakf Validating Act, 1913, created before the commencement of this Act, shall be excluded from the operation of this Act: Provided that the share of a beneficiary under a trust under the aforesaid Act, commonly known as Wakf alal 659 aulad, shall not be exempted and the tax may be realised from the mutawali and the basis of taxation shall be the share of each beneficiary.
Explanation.
For the purposes of this section, a beneficiary means the settler, his family, children and descendants.
" Since section 9 refers to Muslim trusts 'referred to in section 3 of the Musalman Wakf Validating Act, 1913 ', it would be proper to set out the provisions of section 3 of the Musalman Wakf Validating Act, 1913.
Section 3 of that Act runs ac follows. "3.
Power of Mussalmans to create certain wakfs.
It , shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Musalman law, for the following among other purposes: (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated: Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character." Mr. Mukherjee for the appellant contended that the exemption contemplated by section 8(1) of the Act is confined only to such part of the income derived from agricultural lands held under a public charitable or religious trust as is actually spent for the charitable or religious purposes while under section 9 all agricultural income of Musalman trusts (wakfs) irrespective of whether the same is spent on public purposes of charitable or religious nature or not is exempt from the operation of the Act; in other words in the matter of granting exemption between the agricultural income of two types of public trust created for charitable or religious purposes, the Act has practised hostile discrimination against agricultural income of non Muslim public trusts, the classification having no reasonable nexus with the object sought to be achieved by the statute which is to tax agricultural income derived from lands and to exempt the income so derived 660 by a public charitable or religious trust.
According to him though section 9 refers to all agricultural income of Muslim trusts "referred to in section 3 of the Musalman Wakf Validating Act, 1913, (Act VI of 1913), the wakfs contemplated by section 3 of the said Act (Act VI of 1913) include not merely Wakf alal aulad but also other wakfs where property has been permanently dedicated for any purposes recognised by the Musalman Law as religious, pious or charitable and this, he argued, becomes clear from sub clause (a) of section 3 which speaks of wakf created by a Muslim for the maintenance and support wholly or partially of his family, children or descendants; in other words, according to Mr. Mukherjee, section 9 of the Act is not confined to Muslim trusts known as wakf alal aulad but is applicable to all wakfs and, therefore, in case of wakfs other than wakf alal aulad the exemption granted by section 9 of the Act which is in respect of all agricultural income must be regarded as discriminatory as against the exemption granted by section 8(1) of the Act.
He, therefore, urged that section 8(1) which grants a limited exemption would be violative of article 14 of the Constitution.
On the other hand, the learned Attorney General appearing for the respondents contended that section 9 is confined to Muslim trusts commonly known as wakf alal aulad and all other Muslim trusts are covered by section 8(1) of the Act with the result that to all such Muslim trusts, other than wakf alal aulad, the limited exemption is applicable.
He urged that wakfs alal aulad do stand in a class by themselves and as such have been dealt with by section 9 in keeping with the objective of the Act.
He further urged that sections 8(1), 9 and 16 showed the scheme of the Act and if these provisions were considered in light of the main objective of the enactment it was clear that section 8(1) could not be held to be discriminatory or violative of article 14.
Before considering the rival contentions touching the constitutional validity of section 8(1) of the Act it would be proper to keep in mind the main objective as well as the scheme of the Act, particularly in regard to the charging provision and the provisions dealing with exemptions contained therein.
The Act, as its preamble would indicate, has been put on the Statute Book with the object of imposing a tax on agricultural income derived from lands situated in the State of Orissa.
Section 2(a) defines the expression "agricultural income" comprehensively.
The charging provision is contained in section 3 which provides that agricultural income tax at the rate or rates specified in the Schedule 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 person; the proviso, however, states that no agricultural income tax shall be 661 charged on the agricultural income of the Central Government or any A State Government or any local body.
Section 5 prescribes limits of taxable income while section 6 prescribes the method and manner of determining the agricultural income of every assessee.
Then come the two material provisions dealing with exemptions, namely, sections 8 and 9 which have been reproduced above.
The other material section which deals with exemption is section 16 which provides that agricultural income tax shall not be payable by an assessee in respect of any amount actually spent by him out of his total agricultural income for the benefit of the people of the State or for charitable purposes, but this exemption is subject to the proviso that agricultural income tax shall be payable on the remainder of the total agricultural income of such assessee at the rate which would have been applicable if such deduction had not been made.
It is unnecessary to refer to other provisions as they are not material for our purposes.
The scheme if the Act, as disclosed by the aforesaid provision, is that under the charging provision agricultural income tax is levied on the total agricultural income of the previous year of every assessee subject to the exemptions which have been provided for under sections 8, 9 and 16.
It is also clear that whereas the exemption in regard to the amount actually spent for charitable purposes under section 8(1) is in relation to the agricultural income of a public charitable trust, the exemption of similar nature and extent contemplated by section 16 is in regard to the agricultural income of any assessee who may not be a trustee owing lands under a public charitable trust; in other words, in either case the exemption is confined to such part of the agricultural income which is actually spent by the assessee for charitable purposes.
The legislative intent of granting such a limited exemption having been thus clearly brought out by sections 88(1) and 16 of the Act, the question would be whether by enacting section 9 the Legislature really intended to accord or has actually accorded favourable treatment to Muslim trusts in the matter of granting exemption in the manner suggested by counsel for the appellant ? Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus: Whether sections 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature ? In other words is section 8(1) which confers a limited exemption as compared to section 9 hit by article 14 ? It 662 has not been disputed before us that Muslim trusts known as Wakf alal aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon plea that section 9 of the Act covers all Musalman wakfs and not merely wakfs known as the Wakf alal aulad and, therefore, it will be necessary to examine the provisions of section 9 in order to ascertain whether the plea that it covers all Musalman wakfs is warranted or not.
Section 9 in terms says that the exemption thereunder is confined to Muslim trusts "referred to in section 3 of the Musalman Wakf Validating Act, 1913" and the question is what wakfs are referred in section 3 of the Musalman Wakf Validating Act, 1913 (hereinafter called 'the Validating Act ').
The Validating Act, as we shall indicate presently, was enacted only for the purpose of validating wakfs in the nature of wakf alal aulad: As has been pointed out by this Court in Fazlul Rabbi Pradhan vs State of West Bengal and others,(1) wakfs (which were primarily family settlements in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act.
The leading decision of the Privy Council in that behalf rendered in Abul Fata Mahomed Ishak and others vs Russomoy Dhur Chowdhery and others,(2) caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary Object of removing the difficulties created by that decision.
The preamble of the Act makes this very clear.
Section 3 declares the right of a person professing Musalman faith to create a wakf (which in all other respects is in accordance with the provisions of Musalman law) for the maintenance and support wholly or partially of his family, children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the life time or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Musalman law as a religious, pious or charitable purpose of a permanent character.
Section 4 also declares that no such wakf as is referred to in section 3 shall be deemed to be invalid merely because of remoteness of benefit to charity.
In fact, section 3 s declaratory of a right of a Muslim to (1) A. I. R. (2) 22 Indian Appeals 76.
663 create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made, such family settlement (private wakfs) would be invalid.
It is conceivable that a deed or instrument of wakf may be a composite one, partly incorporating public wakf and partly private wakf but section 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private n wakf wakf alal aulad, the vaildity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not.
It is thus clear that section 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf alal aulad.
The exemption in section 9 of the Act, therefore, clearly applies only to Muslim trusts which are in the nature of wakf alal aulad.
This is also clear from the marginal note to section 9 as well as the proviso to the section.
If that be so then all other wakfs would squarely fall under section 8(1) and to all such wakfs the limited exemption contemplated therein would apply.
Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under section 8(1) and the other part will be covered by section 9, for, the language d section 8(1) is wide enough to include such a deed to the extent that it incorporates a public wakf.
In other words, Muslim trusts i.e. wakfs other than wakf alal aulad would be covered by section (8) (1) and to such wakfs the limited exemption contemplated by section 8(1) would apply.
If that be so, the gravamen of complaint that all wakfs (Muslim trusts) other than wakf alal aulad are receiving favourable treatment as against non Muslim public charitable trusts must fall to the ground.
As regards Muslim trusts which are in the nature of wakf alal aulad which alone are covered by section 9, the proviso clearly shows that the share of the beneficiary under such a trust far from being exempted is brought to tax and the tax is made realisable from the mutawali and read with the proviso the main provision really confines the benefit or exemption only to ultimate illusory or remote public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act.
In the result, we are clearly of the view that section 8(1) of the Act is free from the vice of discrimination under article 14 of the Constitution and the said provision is perfectly valid and constitutional.
The appeal is.
therefore, dismissed with costs.
S.R. Appeal dismissed.
| The Municipalities of Punjab are governed by two enactments.
The numerous little ones are statutory bodies created and controlled by the Punjab Municipal Act, 1911 and few large ones by the Punjab Municipal Corporation Act, 1976.
For the purpose of the present petitions the provisions run on identical terms.
The State of Punjab in April, 1977 required the various municipal bodies in the State to impose tax on the sale of Indian made foreign liquor @ Re. 1/ per bottle w.e.f. 20 5 1977.
The Municipal authorities having failed to take action pursuant to the directive the State of Punjab directly issued a notification under sec.
90(5) of the Punjab Municipal Corporation Act, 1976 and similar provision of the Municipal Act, 1911.
The petitioner challenged the constitutional validity of the said statutes and levy on the following grounds: 1.
Section 90(2)(b) of the Act suffers from the vice of excessive delegation or legislative abdication.
There are no guidelines for the exercise of the wide fiscal power of the Corporation or Government which make it too unreasonable to be salvaged by article 19(5) and too arbitrary to be equal under article 14.
The order imposing the tax itself is vitiated because: (a) It seeks to impose the tax which is already imposed and, therefore, violates section 90 (4); (b) There is double taxation; (c) It levies too heavy taxation; (d) Picking out from the broad spectrum of luxury goods or intoxicants the Indian made foreign liquor amounts to discrimination; (e) No opportunity of being heard was given; (f) Unequals are being treated equally by imposing Re. 1/ per bottle irrespective of the type of liquor taxed, price of the liquor and alcoholic content.
Dismissing the appeal.
^ HELD: (1) There is nothing in article 265 of the Constitution prohibiting double taxation.
[850 D] 846 Cantonment Board Poona vs Western India Theatres Ltd., AIR 1954 Bom.
261 approved.
(b) The plea that flat rate of Re. 1/ per bottle be it on brandy or other stronger beverage or be it Rs. 50/ or Rs. 500/ per bottle cannot be seriously pressed.
In the field of taxation many complex factors enter the fixation and flexibility is necessary for the taxing authority.
[850E F] Moopil Nair (K.T.) vs State of Kerala, ; ; East India Tobacco Co. vs State of A.P., ; at 406; A. Hajee Abdul Shakoor & Co. vs State of Madras. ; at 230 referred to.
(2) If the Municipal body proposed to impose a tax it is required to offer an opportunity to the residents of area.
No such procedural fetter is to be found under sec.
90(5) if the levy is imposed by the State Government.
It is impossible for the Court to imply invitation of objections. 'No taxation without representation ' is not applicable to a Government controlled by an elected legislature exercising its power of taxation.
[852B, C, D] (3) Sec.
90(4) talks of tax not already imposed.
The Sales Tax imposed by the state legislature under the Punjab General Sales Tax Act 1948 is no bar to the present levy.
Section 90 deals with the levy of taxes for Municipal Corporation.
The injunction is confined to repetition of the taxes which the Municipality has already imposed.
If the Corporation has not already imposed the tax.
the embargo is absent.
It is of no moment that some other body, including the State Legislature has already entered the field.
The question is has the Municipal Committee or Corporation under this Act already exacted a similar tax ? [852F, H, 853BC] (4) The Founding Document of the nation has created the three great instrumentalities and entrusted them with certain basic powers legislative, judicative and executive.
Abdication of these powers by the concerned instrumentalities, amounts to betrayal of the constitution and it is intolerable in law.
The legislature cannot delegate the essential legislative functions.
The legislature is responsible to the people and its representative, the delegate may not be and this is why excessive delegation have been frowned upon by constitutional law.
However, the complexities of modern administration are so bafflingly intricate and bristle with details, urgencies difficulties and the need for flexibility is such that our legislature may not get off to a start if they must directly and comprehensively handle legislative business in all their plenitude and particularisation.
Delegation of some part of legislative power becomes a compulsive necessity for viability.
Of course, every delegate is subject to the authority and control of the principal and exercise of delegated power can always be directed or cancelled by the Principal.
Therefore, even if there be delegation, parliamentary control over delegated legislation should be a living continuity as a constitutional necessity.
[853GH, 854A, B, C, D, E] Devi Das Gopal Krishnan & Ors.
vs State of Punjab & Ors.
, ; at 565; P. N. Kaushal etc.
vs vs Union of India & Ors.
; ; Corp. of Calcutta & Anr.
vs Liberty Cinema, referred to.
The taxes levied under the Act can be utilised only for the purpose of the Act.
There is a clear purpose contained in the provisions about the purpose and limit of the tax.
What is needed for the purpose of the Act by way of financial resources may be levied by the Corporation.
Beyond that not.
Moreover the 847 items on which taxes may be imposed are also specified.
Thus the legislature has fixed the purpose of the taxation, objects of the taxation and limits of the taxation.
[856A B] It is too late in the day to contend that the jurisprudence of delegation of legislative power does not sanction parting with the power to fix the rate of taxation, given indication of the legislative policy with sufficient clarity.
[860 B] When the Government is imposing taxes for the Municipality the Government is bound to know what ought to have been done by the Municipality.
The whole scheme of the statute shows that Government has an important role to play in the running of the municipalities.
The financial control over the corporation is with the State Government.
[865E] As between the two interpretations that which sustains the validity of law must be preferred.
[864E] M. K. Papiah & Sons vs The Excise Commr. & Anr., ; ; Sita Ram Bishambhar Dayal vs State of U.P., ; referred to.
|
Appeal No. 1827 of 1970.
(From the Judgment and Decree dated 28 4 1970 of the Madhya Pradesh High Court (Gwalior Bench) in First Appeal No. 133 of 1968).
S.N. Andley and Uma Dutta, for the appellants Ram Panjwani and H.S. Harihar, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal on certificate by Prithvi Raj Taneja (now deceased and represented by his legal repre sentatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensa tion for the acquisition of land.
A plot of land measuring 27 bighas and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction o,f a police station and residential quarters for policemen.
A bigha, it is stated, is equivalent to 2,500 square yards.
The land sought to be acquired measured 68,658 square yards.
Notification under section 4 of the Land Acquisition Act for the acquisition of the land was issued on April 7, 1961.
The Land Acquisition Officer as per award dated June 13, 1961 awarded compensation for the land at the rate of Rs. 100 per bigha.
In addition to that, he awarded a sum of Rs. 1,175 for large trees and Rs. 1,380 for small trees standing on the land.
The appellant was also awarded Rs. 1,000 as compensation for a well which had been sunk in the. land, and Rs. 800 for a house standing on the land In all, the appellant was awarded a sum of Rs. 7,616.
including solatium at the rate.
of fifteen per cent by the Land Acqui sition Officer.
The appellant wanted compensation for the land at the rate of Rs. 10 per square yard.
He accordingly had the matter referred to the District Judge.
Learned Additional District Judge determined the market value of the land in question to be Rs. 900 per bigha.
Regarding the well, the Additional District Judge awarded compensation of Rs. 3,000 as against the amount of Rs. 1,000 which had been awarded by the Land Acquisition Officer.
In other respects, the award of the Land Acquisition Officer was upheld.
Computing solatium at the rate of 10 per cent, the.
total amount awarded by District Judge to the appellant was Rs. 32,285 besides interest at the rate of six per cent per annum.
The appellant not being satisfied with the award of the Additional District Judge took the matter in appeal to the High Court.
The High Court awarded compensation to the appellant at the rate of Re. 1.
per square yard for the land in question.
The High Court also awarded Rs. 2,500 for the loss of earnings to the appellant.
The rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to, fifteen per cent.
In all, the appel lant was held entitled to a compensation of Rs. 88,381 besides interest at the rate of six per cent per annum.
The appellant thereupon obtained a certificate of fit ness for appeal to this Court under article 133(1)(a) of the Constitution, as it stood at that time.
In appeal before us, Mr. Andley on behalf of the appel lant has argued that more than half of the land in dispute is within.
the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly.
It is further stated that the land in question abutts Ashok Nagar Isagarh Road and is situated near the tehsil building and the. railway station.
Learned counsel has also referred to the fact that small plots of land adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960.
In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute.
The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed.
We agree with the High Court that the price 635 paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of land.
We may in this context refer to a recent judgment in the case of Smt.
Padma Uppal etc.
vs State of Punjab & Ors.
C) wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold.
Section 23 of the Land Acquisition Act provides that in mining the amount of compensation to, be awarded for the land acquired under the Act, the Court shall take into.
account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act.
The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired.
In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded.
There is an element of guess work inherent in most cases involving determination of the market value of the acquired land.
But this in the very nature of things cannot be helped.
The essential thing is to keep in view the relevant factors prescribed by the Act.
If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be dis turbed (see Thakur Kanta Prasad Singh (dead) by L. rs.
vs State of Bihar(2).
After having been taken through the material on the record, we find no infirmity in the judgment of the High Court as might induce us to disturb its find ing.
The appeal consequently fails and is dismissed but in the circumstances without costs.
Appeal dismissed.
| The respondent State Government was exercising powers delegated to it by the Central Government under the .
It introduced an 'Incentive Export Scheme ' under which, millers, who delivered 50% of their purchases to the Food Corporation of India towards mill levy, would be eligible for exporting rice either within the State from one block to another or to States outside.
On payment of administrative charges.
On the representation of the millers (appellants) that they could not sell rice locally because there was no demand, and that unless they were allowed to move rice outside the blocks or outside the State there would be deterioration of stocks resulting in loss to both trade and the consuming public, the State passed orders permittion the export of rice subject to the fulfilment of their commitments to the Food Corporation and the payment of administrative charges; and also set up the necessary administrative machinery for ensuring such export.
Permits were accordingly granted on terms and on condition of payment of the surcharge fixed.
and the millers paid the surcharge and received the benefits under the permits.
Thereafter, they claimed refund of the administrative surcharge on the ground that the State had no right to collect it and that they made the payments under mistake of law.
Where the State collected administrative charges but could not grant permits, the State refunded the money, but, where millers obtained permits and had taken advantage thereof, the State contended that there was no mistake on the part of the millers and that the payments were made voluntarily with full knowledge of facts and in discharge of their contractual obligations.
The millers filed writ petitions praying for directions to the State to refund the administrative surcharges collected from them, but the High Court held that they were not entitled to the relief on the grounds of delay, insufficiency of particulars regarding expenses and charges incurred by the Government, and the payments being voluntary.
Dismissing the appeals to this Court, ^ HELD: The petitions were rightly dismissed by the High Court.
Also, since various question of fact are involved as to whether there was really a mistake, or whether it was a case of voluntary payment pursuant to contractual rights and obligations.
the remedy under article 226 is not appropriate in the present cases.
[396C D] (a) A mandamus will go where there is a specific legal right.
If there is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done.
A writ of mandamus for recovery of money could be issued only when the petitioner was entitled to recover that money under some statute.
An order for payment of money may sometimes be made to enforce a statutory obligation.
A mandamus for refund of tax could be issued when the assessments were held to be illegal; but contractual obligations cannot be enforced through a writ of mandamus.
Normally, the parties are relegated to a suit of enforce civil liability arising out of a breach of contract or a tort, to pay an amount of money.
Mandamus may also be refused where there is an alternative remedy which is equally convenient, beneficial and effectual [395F 396C] 388 R. V. Bristol and Exeter Railway Co. 1845(3) Ry.
& Can.
Cas. 777; Lekh Raj v Deputy Custodian, ; Har Shankar & ors.
vs Deputy Excise and Taxation Commissioner & Ors., ; ; Sales Tax officer Banaras & ors.
vs Kanhaiya Lal Mukundalal Saraf, ; Suganmal vs State of Madhya Pradesh & ors., A.I.R. 1965 S.C. 1740; Burmah Construction Co. vs State of Orissa, [1962] Supp. 1 S.C.R 242 and State of Kerala vs Aluminium Industries Ltd., 16 S.T.C. 689, referred to.
(b) The ground of delay on which the High Court, in the exercise of its discretion, refused to grant a mandamus is not confined purely to the period of limitation.
Though some of the petitions were filed within 3 years from the date of payment, the delay is bound up with matters relating to the conduct of parties in regard to payments pursuant to agreements between the parties.
[395B C] (c) In the present cases, several petitioners have joined in the writ petitions.
Since each has an individual and independent cause of action, such a combination would be open to the objection of misjoinder even in a suit.
[395C D] (d) The issues regarding limitation, estoppel and questions of fact in ascertaining the expenses incurred by the Government for administrative purposes of the scheme and allocating the expenses with regard to the quality as well as quantity of rice covered by the permits, are triable more appropriately in a suit.
[395D] (e) The plea of mistake is a bare averment in the writ petition.
The payments did not disclose the circumstances under which the alleged mistake occurred nor the circumstances in which the legal position became known to the millers.
Whether there was a mistake in paying the amounts and when exactly the mistake occurred, are also issues triable in a suit.
[1396D E] (f) The Government did not support its demand for administrative charges either as a tax or a fee, but as a condition of the permit and as a term of agreement between the parties to meet the maintenance and supervision ex penses for the Scheme of export permits.
Under section 72, Contract Act, 1872 if one party, under a mistake of law, pays to another money which is not due by contract or otherwise, that money has to be repaid.
The mistake is material only so far as it leads to the payment being made without consideration.
But if a mistake of law had led to the formation of a contract.
section 21 of the Contract Act enacts that such a contract is not, for that reason, voidable; and if money is paid under that contract, it cannot be said that the money was paid under mistake of law.
It was paid because it was due under a valid contract, and if it had not been paid, payment could have been enforced.
[396E 397A] The State of Kerala etc.
vs K. P. Govindan Tapioca Exporter etc.
; ; State of Madhya Pradesh vs Bhailal Bhai ; and Shiba Prasad Singh vs Srish Chandra Nandi, 76 I.A. 244, referred to.
(g) Where the High Court has, in the exercise of its discretion refused to grant a writ of madamus, this Court does not ordinarily interfere [394E] Municipal Corporation of Greater Bomboy vs Advance Builders (India) Private Limited.
[1972] I S.C.R. 408 at p. 420 and D. Cawasji d Co. vs State of Mysore [1975] 2 S.C.R. 511 at p. 527, referred to.
|
minal Appeal No. 119 of 1961.
Appeal from the judgment and order dated December 21, 1961, of the Calcutta High Court in Cr. A. No. 423 of 1958.
P. K. Chakravarty, for the appellant.
section C. Mazumdar, for respondent No. 1.
D. N. Mukherjee, P. K. Mukherjee for P. K. Bose, for the respondent No. 2. 1962.
August 3.
The Judgment of the Court was delivered by SINHA, C.J.
This appeal on a certificate of fitness granted by the High Court under Act 134(1), (c).
566 of the Constitution, is directed against the order of a Division Bench of the Calcutta High Court dated December 21, 1960, setting aside the order of acquittal passed by the trial Magistrate, dated July 2, 1958.
We heard this appeal on the eve of the long vacation and pronounced our order to the effect that the appeal was allowed and the order of acquittal was to stand, and that reasons would be given later.
It appears that the appellant, who it; a practising lawyer, had been employed by the respondent to work for him to investigate the title to some property which the latter was about to purchase, sometime in October 1952.
The prosecution case was that the respondent had entrusted the.
sum of Rs. 5000/ to the appellant for depositing in Court in connection with an application in respect of the proposed transaction, under the Bengal Money Lenders ' Act, and that the appellant having been so entrusted with the money, in breach of trust, misappropriated the amount, thus causing loss to his client.
The appellant was, therefore, charged under section 409 of the Indian Penal Code, with having committed criminal breach of trust in respect of the sum of Rs. 5000/ , which had been entrusted to him as a lawyer on behalf of the respondent.
The appellant defense was that the case, against him was false and that he had been falsely implicated for reasons which need not be stated.
In order to substantiate the charge against him, the complainant (now respondents examined himself and a number of witnesses.
He also adduced in evidence a certain document, marketed exhibit 1, purporting to be a letter in the handwriting of the appellant, to show that Rs. 4200/ being a portion of the amount of Rs. 5000/ required for the deposit, had been asked for by the appellant.
It also con tained writings in the hand of the complainant &owing that there was correspondence in the matter 567 of the deposit.
That was a very important piece of evidence, which if genuine could go a long way to prove the case against the appellant.
But the appellant challenged the document as a forgery in material parts, and cross examined the complainant who had produced the document.
In spite of the fact that the complainant was very pointedly cross examined with a view to showing that the document placed before the Court was a forgery in material parts, the complainant did not take any steps to get an expert on handwriting examined.
The trial Court, on an examination of the evidence, oral and documentary, came to the conclusion that the case against the accused had not been proved and acquitted him.
The complainant preferred an appeal to the High Court against the order of acquittal, which was heard by a Division Bench, The High Court took the view that, in the circumstances of the case, there should be retrial by another magistrate, who should give an opportunity to the complainant to adduce the evidence of a handwriting expert in order to establish the genuineness of the questioned document.
Apparently, the High court, sitting in appeal on the judgment of the acquittal, passed by the learned Magistrate, was not satisfied as to the genuineness of the questioned document.
Otherwise it could have pronounced its judgment one way or the other, on the merits of the controversy, whether or not the prosecution had succeeded in bringing the charge home to the accused.
If it were not a case between a lawyer as an accused and his client as the complainant, perhaps the High Court may not have taken the unusual course of giving a fresh 'opportunity to the complainant to have second round of litigation, to the great prejudice of the accused.
In this connection, the following observations of the High Court may be extracted in order to show the reasons.for the unusual course it took in this case: 568 "Thus there can be no doubt that this was a document of considerable importance.
According to the prosecution it clearly showed the respondent 's connection with the sum of Rs. 4200/ which was a part of the sum of Rs. 5000/ , the subject matter of the charge.
According to the respondent, the figures 4200 and the Bengali word 'sankranta ' were for geries just as at the bottom of the document the word yes ' and the signature of the res pondent with date were also forgeries.
This case was clearly put by the respondent to Bimla, Krishna Ben and it was suggested to him that the impugned portions of the document were clear forgeries made by the appellant in order to falsely implicate the respondent.
It must be said that inspite of this challenge, the appellant took no steps what.
ever to produce expert evidence to aid the court in coming to a conclusion as to the authorship of the impugned portion of the document.
It is true that expert evidence cannot always be a final settler; still in a call of this kind, it is eminently desirable that the court should be assisted by a qualified expert since almost the whole case depends upon proof of the fact whether the impugned portions of that document were in the hand of the respondent. .
Comment was also made by the Magistrate on the appellant 's failure to call expert evidence.
In one sense that comment was justified; but in a case of this kind between lawyer and client we think the matter cannot be left, where it is.
In view of the fiduciary relation.
ship between the parties it is as much necessary in the interest of, the prosecution as in.
the interest of the accused that the whole matter should be cleared ' up, and no steps 569 should be spared which might ensure complete justice between the parties.
If it were an ordinary case between one litigant and another, we might have hesitated at this dis tance of time to send the case back even though the prosecution did not avail of the opportunity of proving its own case.
" In all civilised countries, criminal jurisprudence has firmly established the rule that an accused person should not be placed on trial for the same offence more than once, except in very exceptional circumstances.
In this case, the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person.
It was not that he proved for the examination of an expert and that opportunity had been denied to him.
The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial Court.
That Court was not satisfied that evidence was adequately reliable to bring the charge home to the accused.
The accused was thus acquitted.
On appeal, it was open to the High Court to take a different view of the evidence, if the facts and circumstances placed before it could lead to the conclusion that the appreciation of the evidence by the trial Court was so thoroughly erroneous as to be wholly unacceptable to the Appellate Court.
If the High Court could come to the conclusion, it could have reversed the judgment and converted the order of acquittal into an order of conviction.
But it should not have put the accused to the botheration and expense of a second trial simply because the prosecution did not adduce all the evidence that should, and could, have been brought before the Court of first instance.
It is not a case where it in open to the Court of Appeal, against an order of acquittal, to order a retrial for the reasons that 570 the trial Court has not given the prosecution full opportunity to adduce all available evidence in support of the prosecution case.
It has no where been suggested that the trial Magistrate had unreasonably refused any opportunity to the prosecution to adduce all the evidence that it was ready and willing to produce.
That being so, the High Court, in our judgment, entirely misdirected itself in setting aside the order of acquittal and making an order for a fresh trial by another Magistrate, simply on the ground that the case was between a lawyer and his client.
Simply because the accused happened to be a lawyer would not be a ground for subjecting him to harassment a second time, there being no reason for holding that his prosecutor had not a fair chance of bringing the charge home to him.
In our opinion, the High Court gave way to considerations which were not relevant to a criminal trial.
The High Court was not sitting on a disciplinary proceeding for professional misconduct.
It had to apply the same rules of criminal jurisprudence as.
apply to all criminal trials, and, in our opinion, the only.
reason given by the High Court for ordering retrial is against all well established rules of criminal jurisprudence.
The fact that the appellant is a practising lawyer does not entitle him to any preferential treatment when he is hauled up on a criminal charge, even as he is not subject to any additional disability because the cam was between a lawyer and his client.
There was no relationship of lawyer and client so far as the criminal case was concerned.
Hence, in our opinion, the order of retrial passed by the High Court is entirely erroneous and must be set aside.
Appeal allowed.
| The Bombay City Civil Court Act of 1948, an Act passed by the Provincial Legislature of Bombay, provided by section 3 that the Provincial Government may, by notification in the official Gazette, establish for the Greater Bombay a court to be called the Bombay City Civil Court, and that this court shall, notwithstanding anything contained in any law, have jurisdiction to receive, try ' and dispose of all suits and other proceedings of a civil nature nob exceeding Rs. 10,000 in value arising within Greater Bombay except certain kinds of suits which were specified in the section.
Section 4 of the Act provided that subject to the exceptions speci fied in 8. 3 the Provincial Government may, by notification in the official Gazette, invest the City Civil Court with jurisdiction to 52 receive, try and dispose of all suits and other proceedings of civil nature arising within the Greater Bombay and of such value not exceeding Rs. 25,000 as may be specified in the notification.
Section 12 barred the jurisdiction of the Bombay High Court to try suits and proceedings cognizable by the City Civil Court.
In exercise of the powers conferred by section 4 the Provincial Government invested the City Civil Court with jurisdiction to receive, try and dispose of all suits and proceedings of a civil nature not exceeding Rs. 25,000 in value.
The first respondent instituted a suit in the High Court of Bombay for recovery of Rs. 11,704 on the basis of a promissory note, contending that the Provincial Legislature had no power to make laws with respect to juris diction of courts in regard to suits on promissory notes which was a matter covered by item 53 of List I, and the Bombay City Civil Court Act of 1948 was therefore ultra vires.
It was further contended on his behalf that in any event section 4 of the Act was invalid as it involved a delega tion of legislative powers to the Provincial Government and that the suit was therefore cognisable by the High Court.
Held by the Full Court. (i) that the impugned Act was a law with respect to a matter enumerated in List II and was not ultra vires; (ii)that, as the legislature had exercised its judgment and determined that the City Civil Court should be invested with pecuniary jurisdiction up to Rs. 9,5,000 and all that was left to the discretion of the Provincial Government was the determination of the conditions under which the court should be invested with the enhanced juris diction, section 4 did not involve any delegation of legislative powers but was only an instance of conditional legislation and was not ultra vires or invalid on this ground; (iii) inasmuch as the impugned Act was in pith and substance a law with respect to a matter covered by List II, the fact that it incidentally affected suits relating to promissory notes (a subject falling within items 28 and 53 of List I) would not affect its validity and the suit was accordingly not cognisable by the High.
Court.
Per FAZL ALI, MEHR CHAND MAHAJAN and MUKHERJEA JJ.
The power of the Provincial Legislature to make laws with re spect to "administration of justice" and "constitution and organisation of all courts" under item 1 of List II is wide enough to include the power to make laws with regard to the jurisdiction of courts established by the Provincial Legis lature; the object of item 53 of List I, item 9, of List II and item 15 of List III is to confer special powers on the Central and the Provincial Legislatures to make laws relat ing to the jurisdiction of courts with respect the particu lar matters that are referred to in Lists I and II respec tively and the Concurrent List, and these provisions do not in any way curtail the power of Provincial Legislature under Item I of List II to make laws with regard to juris diction of courts and to confer jurisdiction on courts established by it to try all causes of a civil nature sub ject to the power of the Central and 53 Provincial Legislatures to make special provisions relating to particular subjects referred to in the Lists.
Per PATANJALI SASTRI and DAS JJ.
The words" adminis tration of justice" and "constitution and organisation of all courts" in item 1 of List II must be understood in a restricted sense excluding from their scope "jurisdiction and powers of courts" as the latter subject is specifically dealt with in item 2 List II.
Item 1 of List II does not therefore by itself authorise legislation with respect to jurisdiction and powers of courts, and the legisltive power under item 9.
in regard to "jurisdiction 'and powers of courts ", which can legitimately be exercised with respect to any of the matters in List II, can be exercised with respect to administration of justice as this is one of the matters enumerated in that List, with the result that the subject of general jurisdiction of courts is brought within the authorised area of provincial legislation; and as the Provincial Legislature is thus competant to make a law with respect to the general jurisdiction of the court, the apparent conflict with the central legislative power under item 53 of List I can be resolved by invoking the doctrine of pith and substance and incidental encroachment.
[The legislative practice which prevailed in India before 1935 was relied on in this case in support of the view that the Provincial Legislatures had power under the constitution of 1935 to invest courts constituted by them with general pecuniary jurisdiction].
Quaere: Whether it was not open to the Legislatures of India under the Government of India Act of 1935 to delegate their legislative powers to other agencies.
Queen vs Burah (59.
A 178).applied.
Jatindra Nath Gupta vs Province of Bihar distinguished.
Mulchand Kundanmmal Jagtiani vs Raman (51 Born.
L.R. 86 :, United Provinces vs Atiqa Begum Prafulla Kumar Mukherjea and Others vs Bank of Commerce, Khulna referred
|
ivil Appeal Nos.
188 89 of 1987.
From the Judgment and Order dated 21.11.
1986 of the Punjab & Haryana High Court in First Appeal Order Nos.
620 & 619 of 1986.
571 K.K. Jain and Pramod Dayal for the Appellant.
Meera Chhabra and Ms. Pani Chhabra for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by special leave challenging the reversing common decision of the Punjab & Haryana High Court holding the insurer liable for compensa tion under the of 1939.
The insurer repudiated its liability by maintaining that the policy had been taken after the accident and, therefore, it had no liability to meet the award of compensation against the owner.
The Tribunal accepted this stand and rejected the claim against the insurer.
In appeal, the High Court took the view relying upon certain decisions that the insurance policy obtained on the date of the accident became operative from the commencement of the date of insurance i.e. from the previous mid night and since the accident took place on the date of the policy the insurer became liable.
Apart from the judgment under appeal, we find that this view is supported by two judgments of the Madras High Court and an earlier decision of the Punjab & Haryana High Court Two Division Benches of the Madras High Court have taken the view after discussing the law at length that the policy taken during any part of the day becomes operative from the commencement of that day.
Besides these judgments a Division Bench decision of the Allahabad High Court in Jaddoo Singh & Anr.
vs Smt.
Malti Devi & Anr., AIR 1983 All. 87 supports this view on principle.
There is evidence in this case that the vehicle was insured earlier upto 31.8.
1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from 28th of September, 1984, which is the date of the accident.
We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the inability of the owner under the award.
As pointed out in Stroud 's judicial Dictionary 'Date ' means day, so that where a cover not providing for temporary insurance of a motor 572 car expires 15 days after date of commencement, it runs for the full 15 days after the day on which it was to commence.
" Similarly it has been stated in Stroud that "a bill of exchange, or note, is of the date expressed on its face, not the time when it is actually issued." 'To the same effect is the decision in Re F & B Warren, where it has been held that a judicial act will be referred to the first moment of the day on which it is done.
A payment made by a bankrupt in the morning of a day is, therefore, not made, within section 45 of the Bank ruptcy Act, 1914 before the date of a receiving order made later in the same day.
The ratio of these also supports the view we have taken.
The appeals fails and are dismissed.
There would, howev er, be no order for costs.
N.P.V. Appeals dis missed.
| The normal age of retirement of an employee of an aided school prescribed under section 208 of the Delhi Education Code, 1965 was 60 years.
The proviso to section 8(1) of the Delhi Education Act, 1973, prohibited the administrator from varying the conditions of service of an employee of an existing school at the commencement of that Act to his disadvantage While fixing the retirement age of employees of recognised private schools at 58 years sub rule (1) of rule 110 of the Delhi Education Rules, 1973 protected the entitlement of existing employees to higher age of retire ment.
The petitioner teacher, who had joined service before the coming into force of the Act, assailed her retirement on attaining the age of 58 years on the ground that under section 8 of the Act read with rule 110 of the Rules she had a statu tory right to continue upto the age of 60 years in terms of section 208 of the Code and that the management had acted arbi trarily and discriminately in depriving her of two years of service and consequential benefits.
For the respondents it was contended that the management of the school was neither a State nor an authority under Article 12 of the Constitu tion and as such no writ petition against the respondent management was maintainable, and that the Education Code had no force of law and as such the petitioner had no enforce able right much less under Article 32 of the Constitution.
Allowing the writ petition, the Court, HELD: 1.
The petitioner 's claim is just.
She was enti tled to be ,retired at the age of 60 years.
[417A, E] 413 2.
Prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers.
The age of superannuation provided in Rule 110 of the Rules is 58 years except in the case of existing employees who were in service on April 1, 1973, the date of coming into force of the Act, and in their case the higher age of retirement to which they were entitled has been protected.
The petitioner was an existing employee of the respondent management.
[417E, 415D] 3.
The respondent management was under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school.
When an authority is required to act in a particular manner under a statute it has no option but to follow the statute.
The authority cannot defy the statute on the pretext that it is neither a State nor an "authority" under Article 12 of the Constitution of India.
[416G H] 4.
The petitioner having already attained the age of 60 years the respondents are directed to pay her salary and allowances for the period of two years.
The post retirement benefits to which she is entitled be redetermined assuming her to have retired at the age of 60 years.
The arrears of salary and allowances be paid to her within three months.
[417F G]
|
Appeal No. 313 of 1955.
Appeal by special leave from the judgment and order dated the 12th May 1955 of the Punjab High Court at Chandigarh in Liquidation Miscellaneous No. 72 of 1954.
J. B. Dadachanji.
and Rameshwar Nath, for the appellant.
M. C. Setalvad, Attorney General for India and Ratanlal Chowla, for the respondent.
1956 May 9.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against an order of the High Court of Punjab dated the 12th May, 1955, in the following circumstances.
The appellant was a resident of Lahore who came over to India in or about November, 1947, and took up residence at Banaras as a displaced person.
He 605 had, prior to the 15th August, 1947, a fixed deposit of Rs. 1,00,000 in the Lahore Branch of the Simla Banking and Industrial Co. Ltd. (hereinafter referred to as the Bank) which had its head office at Simla.
He had also at the time a cash credit account in the Bank.
The fixed deposit matured in 1948.
The Bank did not pay the amount to the appellant in spite of repeated demands but seems to have adjusted it towards part payment of a sum of Rs. 4,00,000 which is alleged to have been due from the appellant to the Bank in his cash credit account and which the appellant disputed and denied.
On the 7th November, 1951, the (LXX of 1951) was passed providing certain facilities and reliefs to displaced debtors and displaced creditors.
Section 4 of that Act empowered the State Government to specify any civil court or class of civil courts, ,As the Tribunals having authority to exercise jurisdiction under the Act for areas to be defined therein.
Section 13 of the Act enabled a displaced creditor claiming a debt from any person who is not a displaced person to make an application for recovery thereof to the Tribunal having local jurisdiction in the place where the said creditor resides, and provided for the purpose a special limitation of one year from the date when the Act came into force.
Admittedly the appellant is a displaced person, and the Bank is not a displaced Bank, within the meaning of those expressions as defined in the said Act.
Taking advantage of these provisions, the appellant filed on or about the 24th April, 1952, an application (Case No. I of 1952) to the Tribunal at Banaras constituted under section 4 of the Act, claiming the fixed deposit amount of Rs. 1,00,000 as a debt due from the Bank.
During the pendency of this proceeding there was an appli cation on the 27th December, 1952, under the Indian Companies Act, 1913 (VII of 1913) in the High Court of 'Punjab by some creditors for the winding up of the Bank.
On the 29th December, 1952, an ex parte interim order was passed by the High Court under section 171 of the Indian Companies Act staying proceedings in all suits and applications pending against 606 the Bank, at the time.
The application Case No. I of 1952 filed by the appellant before the Banaras Tribunal was also specified therein.
It would appear however that before the order was communicated to the Tribunal, the said case before it was disposed of and a decree was passed on the 3rd January, 1953, against the Bank for the sum claimed with future interest at three per cent.
per annum.
On the 6th January, 1953, the appellant filed an application before the Tribunal for execution of the decree and it was numbered as Execution Case No. 8 of 1953.
It appears that on or about the 27th January, 1953, one Mr. D. D. Dhawan was appointed by the Punjab High Court as a Provisional Liquidator of the Bank.
On the application of certain petitioning creditors in the winding up proceedings, the High Court passed another order under section 171 of the Indian Companies Act on the 30th January, 1953, staying execution of the decree against the Bank obtained by the appellant.
This order also does not appear to have been communicated to the Tribunal by the Court.
But the Tribunal was informed generally about the situation by a letter of the Provisional Liquidator dated the 13th March, 1953.
Thereby, the attention of the Tribunal was invited to section 171 of the Indian Companies Act which enacted that pending proceedings could not be proceeded with except with the leave of the Court.
The Tribunal was accordingly requested by this letter of the Liquidator to stay further proceedings before it in Case No. I of 1952.
In view of this intimation, the Tribunal passed an order dated the 20th March, 1953, staying execution, notwithstanding a further application by the appellant dated the 16th March, 1953, to proceed with the execution.
On the 21st March, 1953, the Provisional Liquidator filed an appeal in the Allahabad High Court against the decree of the Tribunal obtained by the appellant against the Bank.
That appeal is said to be still pending.
On the 24th September, 1953, the winding up of the Bank was finally ordered by the Company Judge and the Provisional Liquidator was appointed as the Official Liquidator for the purpose.
607 It is said that as against this order of a single Judge, there is a Bench appeal now pending in the High Court of Punjab.
At this stage the Banking Companies (Amendment) Ordinance, 1953, (Ordinance No. 4 of 1953), was promulgated on the 24th October, 1953.
This was repealed and substituted, on the 30th December, 1953, by the Banking Companies (Amendment) Act, 1953 (LII of 1953).
On the 17th February, 1954, the appellant filed a further application before the Tribunal asking that the execution case filed be fore the Tribunal on the 6th January, 1953, which was stayed in view of the letter of the Liquidator dated the 13th March, 1953, should now be proceeded with having regard to the various reasons set out in that application.
Curiously enough two of the reasons alleged were (1) that section 171 of the Indian Companies Act was overridden and varied by section 45 C of the Banking Companies (Amendment) Ordinance (Act), and (2) that the Tribunal Under the is not a Court and hence the stay under section 171 of the Indian Companies Act or under section 45 C of the Banking Companies Act has no application to proceedings pending before the Tribunal.
The application of the 17th February, 1954, above mentioned also prayed for an order to send the case for execution to the Bombay High Court on the ground that the Bank had property within the local limits of the jurisdiction of the said High Court against which it was intended to seek execution.
On this application, notice was issued to the Official Liquidator to appear and show cause by the 24th April, 1954.
The Liquidator however did not appear.
The Tribunal made an order on the 24th April, 1954, transferring to the Bombay High Court under section 39 of the Code of Civil Procedure the said decree for execution.
On the 8th June, 1954, the appellant filed an application for execution before the Bombay High Court (Application No. 123 of 1954) and asked for attachment and sale of the right, title and interest of the Bank in certain shares and securities belonging to the Bank and lying with the Central Bank of India Ltd., Bombay subject to the charge if 608 any on the said Bank.
The attachment was ordered on the 18th June, 1954 and was affected on or about the 19th June, 1954.
At this stage the Official Liquidator obtained an order on the 26th June, 1954, from the Punjab High Court purporting to be one under section 45 C of the Banking Companies Act, transferring from the Court of the Banaras Tribunal, the proceedings before it for execution of the decree in Case No. 1 of 1952, obtained.
against the Bank by the appellant.
It would appear that the Tribunal, on receipt of this order, informed the High Court by letter dated the 14th July, 1954, that the execution proceedings had already been transferred to the High Court of Bombay and that no proceedings relating to the execution case were at the time pending before it.
Thereafter the Liquidator made an application dated the 28th October, 1954, to the Punjab High Court for setting aside the order of the Bombay High Court dated the 18th June, 1954, directing attachment of the shares and securities be longing to the Bank in the possession of the Central .Bank of India Ltd. Bombay.
The main grounds on which this application was made are (1)That the order of the Tribunal at Banaras in execution Case No. 8 of 1953, transferring the decree for execution to the Bombay High Court more than six months after the passing of the winding up order, without obtaining leave from the Punjab High Court,was null and void.
(2)That the proceedings taken in execution against the Bank in the Bombay High Court were also null and void in view of sections 171 and 232 of the Indian Companies Act.
(3)That in view of the Banking Companies (Amendment) Act, 1953, it is only the Punjab High Court that has exclusive jurisdiction to entertain and decide all claims between the Bank and the appellant and to deal with the execution proceedings initiated by the appellant against the Bank.
(4)That the execution proceeding was in fact transferred by the Punjab High Court to itself by its order dated the 25th June, 1954, and all questions 609 arising therefrom have to be dealt with and disposed of by the Punjab High Court itself.
The appellant contested this application in the Punjab High Court on various grounds.
The main contentions were (1)That the provisions of the Banking Companies Act could not override the provisions of the , and that the proceedings thereunder are not affected by the Banking Companies Act.
(2)That in any case there was no valid order of transfer to the Punjab High Court of the execution proceeding relating to the decree obtained by him against the Bank in the Banaras Tribunal.
These contentions were negatived by the Punjab High Court.
It was held that the provisions of the Banking Companies Act of 1953 had an overriding effect and that exclusive jurisdiction was vested thereby in the appropriate High Court notwithstanding anything in.
It was also held that there was a valid order of transfer to the Punjab High Court, of the execution proceedings taken by the appellant in respect of his decree.
It was therefore held that the order of attachment obtained by the appellant from the Bombay High Court was invalid.
The said order was accordingly set aside.
It is against this order that the present appeal has been brought.
Both the above contentions have been strenuously urged before us on behalf of the appellant and equally strenuously opposed on behalf of the Bank.
The learned Attorney General for the Bank placed reliance on section 232 of the Indian Companies Act at the forefront of his argument and pointed out that under the said section no attachment could have been made without leave of the Court when the Bank was in the process of being wound up by order of the Court.
On the other side it has been suggested that neither section 171 nor section 232 of the Indian Companies Act are applicable to these proceedings in view of the Banking Companies Act as amended in 1953.
This suggestion,proceeds on a misconception and ignores 610 section 2 of the Banking Companies Act which specifically provides that the provisions of the Act shall be in addition to and not in derogation of the Indian Companies Act as expressly provided.
Hence no leave under section 232 of the Indian Companies Act having been obtained, this might have been enough to dispose of the case against the appellant if the order of attachment had been set aside by the Bombay High Court itself, on the application of the Liquidator to it.
Since in this case the order to set aside attachment was passed by the Punjab High Court, the question has to be gone into as to the jurisdiction of that Court to interfere with the order of the Bombay High Court or to declare it to be void.
That jurisdiction can only be supported on the view, that exclusive jurisdiction over the matter was vested in the Punjab High Court, under the Banking Companies Act, and that a valid order of transfer of the execution proceeding to the said Court had been made in exercise of the powers under that Act.
These questions have, therefore, to be dealt with.
On the facts above stated one matter is clear, viz., that the attempt of the appellant is to realise the amount due to him under the decree by getting at the assets of the Bank which is under liquidation ignoring the purported adjustment of the deposit made by the Bank towards its alleged dues from him under his cash credit account.
His proceeding to execute the decree by attachment is in substance an attempt to constitutes himself an independent preferential creditor.
So far as the decree is concerned, we wish to say nothing about its validity or otherwise since the matter is pending in appeal before the Allahabad High Court.
What we are concerned with now is the proceeding in execution of that decree and the appellant 's attempt to get at the assets of the Bank in satisfaction thereof.
There can be no doubt that,, apart from any argument available under the , which will be considered presently, the matters which must necessarily arise in the course of such an execution proceeding are matters which would directly fall 611 within the scope of section 45 B of the Banking Companies Act as amended in 1953 which runs as follows: "The High Court shall, save as otherwise expressly provided in section 45 C, have exclusive jurisdiction to entertain and decide any claim made by or against a banking company which is being wound up (including claims by or against any of its branches in India) or any application made under section 153 of the Indian Companies Act, 1913 (VII of 1913) by or in respect of a banking company or any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of a banking company, whether such claim or question has arisen or arises or such application has been made or is made before or after the date of the order for the winding up of the banking company or before or after the commencement of the Banking Companies (Amendment) Act, 1953".
There has been some faint argument before us that the questions that arise in execution in this case and particularly the question relating to attachment which has been effected by the Bombay High Court, are not questions which fall ' within the scope of section 45 B.
In our opinion this contention is so obviously untenable, in view of the very wide and comprehensive language of the section that, it requires no more than to be mentioned and rejected.
If, therefore, the proceeding to execute the decree obtained by the appellant in this case and the claims and matters which must necessarily arise in the course of that execution fall within the scope of section 45 B, the execution proceeding in this case would prima facie be within the exclusive jurisdiction of the High Court under section 45 B subject to the two questions that have been raised in the case which are (1) whether there is anything in the , which overrides this jurisdiction, and (2) whether in view of the fact that the original execution application to the Tribunal was made before the Banking Companies (Amendment) Ordinance and Act of 1953, came into force.
, there has been any valid order under section 45 C of 612 the Banking Companies Act by the Punjab High Court transferring the pending execution proceeding to it self.
So far as the first of the above questions is concerned, learned counsel for the appellant relies on sections 3 and 28 of the .
Section 28 declares that the civil court which passed the decree as a Tribunal shall be competent to execute it.
Section 3 runs as follows: "3.
Overriding effect of Act, rules and orders:Save as otherwise expressly provided in this Act, the pro visions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any decree or order of a court, or in any contract between the parties".
On the strength of these sections learned counsel for the appellant argues that the jurisdiction, which the Tribunal has under section 28 for executing the decree must prevail over the jurisdiction of the High Court in respect of this matter under section 45 B of the Banking Companies Act.
On the other hand, the respondent relies on section 45 A of the Banking Companies Act, which runs as follows: "The provisions of this Part and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in the Indian Companies Act, 1913 (VII of 1913), or the Code of Civil Procedure, 1908 (Act V of 1908), or the Code of Criminal Procedure, 1898 (Act V of 1808), or any other law for the time being in force or any instrument having effect by virtue of any such law but the provisions of any such law or instrument in so far as the same are not varied by, or inconsistent with, the provisions of this Part or rules made thereunder shall apply to all proceedings under this Part".
Now the question as to which of the provisions of these two Acts has got overriding effect in a given case, where a particular provision of each is equally applicable to the matter is not altogether free from difficulty.
In the present case, prima facie by virtue 613 of section 28 of the the jurisdiction to execute the Tribunal 's decree is in the Tribunal.
But it is equally clear that the jurisdiction to decide any of the claims which must necessarily arise in the execution of the decree is vested in the High Court by virtue of section 45 B of the Banking Companies Act.
Each of the Acts has a specific provision, section 3 in the and section 45 A in the Banking Companies Act, which clearly indicates that the relevant provision, if applicable, would have overriding effect as against all other laws in this behalf.
Each being a special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case.
In support therefore of the overriding effect of the of 1951 as against section 45 B of the Banking Companies Act, learned counsel for the appellant called in aid the rule that a later Act overrides an earlier one.
(See Craies on Statute Law, pages 337 and 338).
He urged that the Banking Companies (Amendment) Act of 1953 should be treated as part of the 1949 Banking Companies Act and hence overridden by the of 1951 and relied on the case in Shamarao V. Parulekar vs The District Magistrate, Thana, Bombay(1) and on the passage therein at page 687 which is as follows: "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".
Now there is no question about the correctness of this dictum.
But it appears to us that it has no application to this case.
It is perfectly true as stated therein that whenever an amended Act has to be (1) (1952) S.O.R. 683.
614 applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it.
This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended 'part or in the amended part.
But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act.
That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication.
the facts of that case the question that was considered arose in the following circumstances.
There was an order of detention under the Preventive Detention Act of 1950.
That Act was due to expire on the 1st April, 1951.
But there were subsequent amendments of the Act which extended the life of the Act up to 1st October, 1952.
The amending Act provided inter alia that detention orders which had been confirmed previously and which were in force immediately before the commencement of the amending Act "shall continue to remain in force for so long as the principal act is in force".
The question for consideration was whether this indicated the original date of expire of the principal Act or the extended date of the principal Act.
The Court had no difficulty in holding that it obviously related to the latter, notwithstanding that the principal Act was defined as meaning "Act of 1950".
It was pointed out that the phrases "principal Act" and "Act of 1950" have to be understood after the amendment as necessarily meaning the 1950 Act as amended, i.e., which was to expire on the 1st October, 1952.
In the present case what we are concerned with is not the meaning of any particular phrase or provision of the Act after the amendment but the effect of the amending provisions in their relation to and effect on other statutory provisions outside the Act.
For such a purpose the amendment cannot obviously be treated as having been part of the original Act itself so as to 615 enable the doctrine to be called in aid that a later Act overrides an earlier Act.
On the other hand, if the rule as to the later Act overriding an earlier Act is to be applied to the present case, it is the Banking Companies (Amendment) Act, 1953,.
that must be treated as the later Act and held to override the provisions of the earlier .
It has been pointed out, however, that, section 13 of the , uses the phrase "notwithstanding anything inconsistent therewith in any other law for the time being in force" and it was suggested that this phrase is wide enough to relate even to a future Act if in operation when the overriding effect has to be determined.
But it is to be noticed that section 45 A of the Banking Companies Act has also exactly the same phrase.
What the connotation of the phrase " 'for the time being" is and which is to prevail when there are two provisions like the above each containing the same phrase, ate questions which are not free from difficulty.
It ;Is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.
Now so far as the Banking Companies Act is concerned its purpose is clearly, as stated in the heading of Part III A, for speedy disposal of winding up proceedings.
It is a permanent statutory measure which is meant to impart speedy stability to the financial credit structure in the country in so far as it may be effected by banks under liquidation.
It was pointed out in Dhirendra Chandra Pal vs Associated Bank of Tripura Ltd.(1) that the pre existing law relating to the winding up of a company.
involved considerable delay and expense.
This was sought to be obviated so far as Banks are concerned by vesting exclusive jurisdiction in the appropriate High Court in respect of all matters arising in relation to or in the course of (1) 616 winding up of the company and by investing the provisions of the Banking Companies Act with an overriding effect.
This result was brought about first by the Banking Companies (Amendment) Act, 1950 and later by the Banking Companies (Amendment) Act, 1953.
Sections 45 A and 45 B of Part III brought in by the 1950 Act vested exclusive jurisdiction in, the appropriate High Court to decide all claims by or against a Banking Company relating to or arising in the course of winding up.
But sections 45 A and 45 B of the Part III A substituted by 1953 Act are far more comprehensive and vest not.
merely exclusive jurisdiction but specifically provide for the overriding effect of other provisions also.
Now, the is one of the statutory measures meant for relief and rehabilitation of displaced persons.
It is meant for a temporary situation brought about by unprecedented circumstances.
It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose.
It is by and large a measure for the rehabili tation of displaced debtors.
Notwithstanding that both the Acts are important beneficial measures, each in its own way, there are certain relevant differences to be observed.
The first main difference which is noticeable is that the provisions in the are in a large measure enabling and not exclusive.
There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal, if he is satisfied with the reliefs which an ordinary civil court can give him in the normal course.
It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal 's jurisdiction comes into operation.
At this point it is necessary to notice the further difference that exists in the between applications by displaced debtors and ap 617 plications by displaced creditors against persons who are not displaced persons.
So far as the applications by displaced debtors are concerned, section 15 in terms provides for certain consequences arising, when the application is made to the Tribunal by a displaced debtor under section 3 or section 5(2), i.e., stay of all pending proceedings, the cessation of effect of any interim orders or attachments, etc.
and a bar to the institution of fresh proceedings and so forth.
But the terms of section 13 relating to the entertainment of an execution proceeding by the said Tribunal on a decree so obtained, do not appear to bring about even the kind of consequences which section 15 contemplates as regards applications by displaced debtors.
Section 13 is, in terms, only an enabling section and section 28 merely says that "it shall be competent for the civil court to execute the decree passed by it as a Tribunal".
They are not couched in terms vesting exclusive jurisdiction in the Tribunal.
Whatever, therefore, may be the inter se, position, in a given case, between the provisions of the Banking Companies Act and the provisions of the , in so far as such provisions relate to displaced debtors, we are unable to find that the jurisdiction so clearly and definitely vested in the High Court by the very specific and comprehensive wording of section 45 B of the Banking Com panies Act with reference to the matters in question, can be said to be overridden or displaced by anything in the , in so far as they relate to displaced creditors.
It is also desirable to notice that so far as a claim of a displaced creditor against a non displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may ' have been time barred), (2) a decree can be obtained on a mere application, i.e., without having to ' incur the necessary expenses byway of court fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has 80 618 jurisdiction over the place where he resides, i.e., a place more convenient 'to him than if be had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises.
There may also be a few other minor facilities.
But what is necessary to notice is that the overriding provision of the Banking Companies Act, so far as a displaced creditor is concerned, is substantially only as regards jurisdiction.
Section 45 A thereof, while providing that the provisions of Part III A and the rules made there under shall have effect notwithstanding anything in consistent therewith in any other law for the time being in force, specifically provides that "the provisions of any such law in so far as the same are not varied by or inconsistent with, the provisions of that part or rules made thereunder, shall apply to all proceedings under that Part".
Therefore, in the present case the overriding effect of section 45 B of the Banking Companies Act deprives him only of the facility of pursuing his execution in the jurisdiction of the Tribunal.
But there is no reason why he should not get the benefit of other provisions, if any, which may give him an advantage and are not inconsistent with any of the other specific provisions of the Banking Companies Act.
Having regard to all the above con siderations and the wide and comprehensive language of sections 45 A and 45 B of the Banking Companies Act, we are clear that a proceeding to execute the decree obtained by the appellant from the Tribunal against the Bank in Case No. I of 1952 and all other incidental matters arising therefrom such as attachment and so forth are matters within the exclusive jurisdiction of the Punjab High Court subject to the provisions of section 45 C of the Banking Companies Act as regards pending matters.
This leads us to the question whether in terms of section 45 C there has been a valid transfer of the execution proceeding to the Punjab High Court.
Before dealing with this question it is necessary to notice the argument that section 45 C of the Banking Companies Act has no application at all to a pro 619 ceeding pending before the Tribunal.
The argument is that section 45 C applies only to a proceeding pending in any other Court immediately before the commencement of the Banking Companies (Amendment) Act.
It is urged that the Tribunal under the is not a Court.
In support thereof the judgment of one of the learned Judges in Parkash Textile Mills Ltd. vs Messrs Muni Lal Chuni Lal(1) has been cited to show that the Tribunal constituted under this Act is not a Court.
The question that arose in that case was a different one, viz., as to whether the Tribunal had the exclusive jurisdiction to determine for itself the preliminary jurisdiction on facts and it is for that purpose the learned Judge attempted to make out that a Tribunal was a body with a limited jurisdiction, which limits were open to be determined by a regular court when challenged.
It is unnecessary for us to consider whether the view taken by the learned Judge was correct.
No such question arises in this case and we are quite clear that the Tribunal which is to exercise the jurisdiction for executing the decree in question is "a Court" within the scope of section 45 C of the Banking Companies Act.
Section 28 of the itself is reasonably clear on that point.
That section runs as follows: "It shall be competent for the civil court which has been specified as the Tribunal for the purposes of this Act to execute any decree or order passed by it as the Tribunal in the same manner as it could have done if it were a decree or order passed by it as a civil court".
It is quite clear on the wording of this section that it is a civil court when it executes the decree, whatever may be its status when it passed the decree as a Tribunal.
There is, therefore, no substance in this argument.
Now coming to the question whether there has been a valid transfer of the execution proceedings to the Punjab High Court, there can be no doubt that the (1) 620 execution proceeding filed by the appellant before the Tribunal on the 6th January, '1953, continued to remain pending by the date when the Banking Companies (Amendment) Act, 1953, came into operation.
This appears from the subsequent applications dated the 16th March, 1953, and the 17th February, 1954, which always relied on the earlier application of the 6th January, 1953, as the main pending application.
This application was, therefore, a pending application for the purposes of section 45 C of the Banking Companies Act.
The jurisdiction of the Punjab High Court with reference to this execution proceeding must depend upon whether or not there was a valid order of transfer of this proceeding to itself under section 45 C.
This section contemplates, in respect of pending proceedings that (a) the Official Liquidator is to make a report to the High Court concerned within the time specified in sub section (2) thereof, (b) the High Court is to consider which out of these pending proceedings it should transfer to itself, and (c) the High Court should pass orders accordingly.
It further provides by sub section (4) thereof that as regards such of the pending proceedings in respect of which no such order of transfer has been made the said proceeding shall continue in the Court in which it is pending.
It is with reference to these provisions that on the 23rd November, 1953, the Official Liquidator appears to have submitted a report to the Punjab High Court, requesting that certain proceedings mentioned in lists A and B attached to the said report should be transferred to the High Court under section 45 C(3).
List A pertains to suits and List B to applications under the Displaced Persons 'Debts Adjustment) Act, 1951.
It is pointed out that list B which shows an application before the Tribunal under section 19 of the , does not show the execution application under section 28 of that Act then pending in the Banaras Tribunal and with which we are concerned.
It is strenuously urged that this shows that there was no application for transfer of this proceeding to the Punjab High Court and that, therefore, there could 621 have been no transfer thereof and that accordingly by virtue of section 45 C(4) of the Banking Companies Act the jurisdiction in respect of the execution proceeding continued to be with the Tribunal.
It is urged that since sub section (4) of section 45 C enjoins that such proceeding "shall be continued" in the Court in which the proceeding was pending, there can be no question of any transfer thereafter.
It is pointed out that the view of the High Court that there has been a valid transfer to itself is based on an order passed on an alleged supplementary report by the Liquidator on the 25th June, 1954, which is beyond the three months ' time provided in section 45 C (2) and that such an.
order of transfer is invalid.
It is also urged that the transfer so made was without notice to the appellant.
That there was in fact an order of transfer made by the Punjab High Court specifically of this execution proceeding with which we are concerned admits of no doubt as a fact.
This is also admitted by the appellant in his application for special leave.
The order itself is not before us nor are the exact circumstances under which this order came to be made, clearly on the record.
So far as one can gather from the papers before us the position seems to be this.
When the appellant filed his application to the Tribunal on the 17th February, 1954 (by which he asked that its order dated the 20th March, 1953, staying execution proceedings should be vacated for reasons shown therein) notice to show cause against it and for appearance therefor on the 24th April, 1954, was sent to the Official Liquidator by the Tribunal.
The Official Liquidator not having appeared on that date, the Tribunal, as already stated, passed the order as prayed for on the 24th April 1954, transferring the execution to the Bombay High Court.
It may be mentioned at this stage that an argument has been advanced that the Liquidator, not having appeared on notice, can no longer challenge the validity of the continuance of the execution proceeding by the Tribunal and of the subsequent attachment by the Bombay High Court.
The question, however, is one 622 of jurisdiction depending on the validity of transfer made by the High Court under statutory power.
The argument is without substance.
To resume the narrative, the Official Liquidator on receiving notice, addressed a letter dated the 19th March, 1954, to the Company Judge of the Punjab High Court mentioning the fact that he, received a notice from the Banaras Tribunal to appear and show cause on the 24th April, 1954.
He mentioned therein his doubt as to the jurisdiction of the Tribupal to entertain the application and requested that in order to avoid inconvenience and expenditure an immediate transfer of the execution case together with the appellant 's application to the Tribunal for vacating the stay order should be made by the High Court in exercise of the powers conferred on it by section 45 C of the Act.
On this the learned Judge appears to have passed an order dated the 22nd March, 1954, issuing notice to the appellant for appearance on the 2nd April, 1954.
This appears to have been adjourned from time to time and it would appear that on the 25th June, 1954, to which date the matter stood adjourned, the Liquidator addressed another letter to the Company Judge, which is referred to in the record as the supplementary report of the Liquidator.
Therein he only narrated the entire history of the suit and of the execution proceeding and the circumstances which rendered it necessary that an order of transfer should be made immediately.
Probably this was meant for opposing any further adjournment.
It appears at any rate that it was on this date that the order of transfer was passed.
All the facts stated above can be gathered from the two letters of the Liquidator dated the 19th March, 1954, and the 25th June, 1954, and a further note of the Liquidator put up to the Company Judge with reference to the letter dated the 14th July, 1954, received from the Tribunal which is all the relevant material included in the paper book before us.
The actual date of the note does not appear from the record.
Unfortunately neither the original order of the Judge made on the report of the Liquidator dated the 23rd November, 1953, nor the order of 623 transfer relating to this particular case, which appears to have been made on the 25th June, 1954, on the letter of the Liquidator dated the 19th March, 1954, are before us.
We do not know the exact terms in which those orders were made and the reason why no specific order of transfer was made on the first report and why an additional order of transfer was made as appears so late as on the 25th June, 1954.
In any case the argument on behalf of the appellant on this part of the case seems to be based on a misapprehension of the facts.
If, as appears, the order of the 25th June, 1954, was made with reference to the letter of the Liquidator dated the 19th March, 1954, a fact which appears ears to be admitted by the appellant in para 16 of his application for leave to appeal to this Court and what is called supplementary report dated the 25th June, 1954, was nothing more than bringing additional facts to the notice of the Court by way of the history of the execution proceeding, there appears to be no foundation in fact for the contention that the order was made on a report filed beyond three months provided under section 45 C(2) of the Banking Companies Act.
Sub section (2) of section 45 C provides that "the Official Liquidator shall, within three months from the date of the winding up order or the commencement of the Banking Companies (Amendment) Act, 1953, whichever is later, or such further time as the High Court may allow, submit to the High Court a report containing a list of all such pending proceedings together with particulars thereof".
The letter of the Official Liquidator dated the 19th March, 1954, is within three months of the commencement of the Banking Companies (Amendment) Act, 1953, which came into force on the 30th December, 1953, and there is nothing in subsection (2) of section 45 C that two or more successive reports may not be made within the prescribed period of three months.
It appears also from the papers above referred to that notice was issued to the appellant with reference to this letter of the 19th March, 1954, of the Liquidator to transfer the execution application to itself.
It appears to us, therefore, 624 from such record as is before us, that the contention of the appellant raising objection to the validity of the order of transfer is untenable on the facts. ' Nor, are we satisfied that even if the facts as to how the order of transfer dated the 25th June, 1954, came to be made are shown to be otherwise than above stated, there is any reason to think that sections 45 C(2), (3) and (4) are to be construed so as to make the power of the Court to transfer dependent on the filing of a report by the Liquidator strictly within three months.
The various sub sections, taken together seem to imply the contrary.
Section 45 C(1) definitely imposes a bar on any pending matter in any other court being proceeded with except in the manner provided therein.
The jurisdiction of that other Court to proceed with a pending proceeding is made to depend on the fact that its pendency is brought to the notice of the appropriate High Court and its decision, express or implied, to leave it out without transferring it to itself.
Having regard to the scheme and policy of sections 45 B and 45 C of the Banking Companies Act, it appears more reasonable to think that in respect of a pending matter which was not in fact brought to the notice of the Court by the Liquidator within the three months, there is nothing to prevent the Court exercising its power of transfer at such time when, it is brought to the notice of the Court.
It is, however, unnecessary to decide that point finally in this case since, to gay the least, all the facts and the requisite records have not been properly placed before us.
We have been asked to send for all the relevant records in order to ascertain the facts correctly or to give an opportunity for the purpose.
We do not think it right to do so in the circumstances of this case.
It is necessary to point out, as admitted by the appellant in his application for special leave that there has been an application to this Court dated the 16th October, 1954, for the grant of special leave specifically as against the order of transfer of the Punjab High Court made on the 25th June, 1954, but that application 'Was rejected.
It 625 has been suggested that while so rejecting, this Court left the matter open.
There is nothing to substantiate it.
Therefore, an argument as to the invalidity of the order of transfer cannot be entertained at this stage.
For all the above reasons we are satisfied that the view taken by the High Court that it bad exclusive jurisdiction in respect of the present matter and that there was a valid transfer to itself by its order dated the 25th June, 1954, is correct.
In the proceedings before the High Court a good deal has been made as to the alleged suppression of .material facts by the appellant from the Bombay High Court, in obtaining the impugned order of attachment from that Court and the learned Judge 's order also indicates that be was to some extent influenced thereby.
It appears to us that the alleged suppression has no bearing on the questions that arose for decision before the learned Judge, on this appli cation.
The learned Attorney General frankly conceded the same.
We have been told that there has been some application for contempt in the Court on the basis of the alleged suppression.
We do not, therefore, wish to say anything relating to that matter which may have any bearing on the result of those proceedings.
In the result this appeal is dismissed with costs.
Appeal dismissed.
| The appellant was a temporary sub inspector of Police.
While he was posted at Shahjahanpur the Superintendent of Police, Shahjahanpur commenced disciplinary proceedings against him on the charge that he had violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 in as much as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive.
At the stage of evidence, the Deputy Inspector General of Police, Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence has been committed at Pithoragarh, situated in a different police range, and therefore, the proceedings taken against the appellant were incompetent.
Meanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police Service or who were involved encouraging crime.
The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him.
On April 27, 1970, the Dy.
Inspector General of Police made an order terminating the services of the appellant, reciting that the services of the appellant "are no more required and that he will be considered to have ceased to be in service. " The appellant filed a Writ Petition against the order terminating his services and claimed that the order contravened Article 311(2) of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from service without satisfying the conditions prescribed therein.
Allegations of malafide were also made.
The Writ Petition was dismissed.
An appeal to the Division Bench was also dismissed.
Hence the appeal by special leave.
Dismissing the appeal, the Court.
^ HELD: 1.
It is now settled law that an order terminating the services of a temporary Government servant and ex facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its 614 terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying with article 311(2) of the Constitution.
[615H, 616A B] 2.
The question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order.
The application of the test is not always easy.
In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services.
The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.
[616B E] In the instant case: (a) the appellant was a temporary Government servant, and the question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March 1970 for weeding out Police Officers who were unsuitable or unfit to be continued in service; (b) the material which the Superintendent of Police considered was sufficient to lead to the conclusion that the appellant, who was a temporary Government servant, was not suitable for being retained in service his general character and conduct led to that impression and there was nothing to show that the impugned order was made by way of punishment; (c) the circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment, and (d) the impugned order was not intended by way of punishment.
[616E G] State of Maharashtra vs Veerappa R. Saboji and Anr. ; ; applied.
State of Bihar and Ors.
vs Shiva Bhikshuk Mishra, ; State of U.P. & Ors.
vs Sughar Singh ; and Regional Manager & Anr.
vs Pawan Kumar Dubey; ; ; distinguished.
|
ivil Appeal No. 4457 of 1989.
Appeal under Section 35 L(b) of the Central Excise and Salt Act, 1944 from the Order No. 285/89 C dated the 29th June, 1989 of the Customs, Excise and Gold (Control), Appel late Tribunal, New Delhi in Appeal No. E/2489/87 C. K.K. Venugopal, D. Shroff, Ravinder Narain, Raj Darak, P.K. Ram and D.N. Mishra for the Appellant.
Kapil Sibal, Additional Solicitor General, P. Parmeshwa ran and Ms, Indu Malhotra for the Respondent.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
This appeal involves the question whether the products, Bifuran Supplement, Neftin 50 and Neftin 200, manufactured by the appellant, are chargeable to excise duty as 'patent or proprietary medicines ' under Item 14 E of the First Schedule to the Central Excise and Salt Act, 1944, (hereinafter referred to as the 'Excise Tariff ') or the said products are exempted from excise duty under notification No. 6/84 dated February 15, 1984, as animal feed supplement.
At the relevant time Item 14 E of the Excise Tariff was as under. "14 E Patent or proprietary medicines not containing alco hol, opium, Indian Hemp or other narcotic drugs or 446 other narcotics other than those medicines which are exclu sively Ayurvedic, Unani, Sidha or Homeopathic.
Explanation I 'Patent or Proprietary Medicines ' means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals which bears either or itself or on its container or both, a name which is not specified in a monograph in a pharmacopoeia, formulacy or other publications notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is, a name or a registered trade mark under the (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person, having the right either as a proprietor or otherwise to use the name or mark with or without any indication of the identity of that person.
Explanation II 'Alcohol ', 'Opium ', 'Indian Hemp ', 'Narcotic Drugs ' and 'Narcotics ' have the meanings respec tively assigned to them in Section 2 of the .
" Item 68 of the Excise Tariff was in the nature of a residuary provision and it read as under: "All other goods, not elsewhere specified but excluding: (a) alcohol, all sorts, including alcoholic liquors for human consumption; (b) opium, Indian Hemp and other narcotic drugs and narcot ics; and (c) dutiable goods as defined in Section 2(c) of the Medici nal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955).
Explanation For the purpose of this Item, goods which 447 are referred to in any preceding Item in this Schedule for the purpose of excluding such goods from the description of goods in that Item (whether such exclusion is by means of an Explanation to such Item or by words of exclusion in the description itself or in any other manner) shall be deemed to be goods not specified in that Item." In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Gov ernment issued notification dated February 28, 1982 whereby the goods of the descriptions specified in the Schedule annexed to the said notification and falling under Item 68 of the Excise Tariff were exempted from the levy of central excise duty.
Entry at section No. 10 in the Schedule annexed to the said notification was: "Animal feed including compound live stock feed." The said notification dated February 28, 1982 was super seded by notification dated November 1, 1982, which also exempted from levy of central excise duty goods of the description specified in the Schedule annexed to the said notification falling under Item 68 of the Excise Tariff.
Entry at section No. 10 in the Schedule annexed to the said notification was in the same terms as in the previous noti fication dated February 28, 1982.
The notification dated November 1, 1982 was amended by notification dated February 15, 1984 whereby entry at section No. 10 in the Schedule annexed to the notification dated November 1982 was substituted by the following entry: "Animal feed including compound live stock feed, animal feed supplements and animal feed concentrates.
" By the aforesaid notification dated February 15, 1984, the following explanation was also inserted: "Explanation II For the purposes of this notification.
the expression (i) "animal feed supplements" means an ingredient or combi nation of ingredients, added to the basic feed mix or parts thereof.
to fulfil a specific need, usually used in micro quantities and requiring careful handling and mixing; (ii) "animal feed concentrates" means a feed intended to 448 be diluted with other feed ingredients to produce complete food of optimum nutrient balance.
" The appellant carries on business as manufacturer of pharmaceuticals.
Among the products manufactured by it are Bifuran Supplement, Neftin 50 and Neftin 200.
Prior to the notification dated February 15, 1984 the appellant was classifying the products mentioned above under Item 14E and was paying central excise duty on that basis.
After the notification dated February 15, 1984 the appellant filed a classification list effective from March 1, 1984 whereby the above mentioned products were classified as 'animal feed supplements ' under Item 68 and exemption was claimed under notification dated February 15, 1984.
The said classifica tion list submitted by the appellant was approved by the Assistant Collector of Central Excise on June 4, 1984.
Subsequently the Assistant Collector realised that the said classification had been wrongly approved and he gave a show cause notice dated January 31, 1985 to the appellant wherein it was stated that the above mentioned products classified by the appellant to be "animal feed supplement" do not appear to fulfil the conditions enumerated in the notifica tion dated February 15, 1984 and the appellant was required to show cause why the exemption granted to the said products should not be withdrawn.
The appellant submitted a reply dated March 29, 1985 to the said show cause notice.
After considering the said reply Assistant Collector passed an order dated August 21, 1985 whereby it was held that the exemption granted to the above mentioned products of the appellant has to be withdrawn with effect from March 1, 1984 as the conditions set out in the Notification No. 6/84 dated February 15, 1984 had not been fulfilled and the duty involved on the clearance of the said formulations had to be paid and further clearance could be effected under the revised classification list by including these items in Tariff Item 14E. The ' said order was set aside, on appeal, by the Collector of Central Excise (Appeals) by his order dated December 12, 1985 and the matter was remanded to the Assistant Collector to decide the classification in de novo proceedings after recording evidence to establish that the product has definite therapeutic or preventive value for disease in animals.
Thereafter the Assistant Collector initiated de novo proceedings.
The appellant submitted written submissions and filed documents.
After giving a personal hearing to the representation of the appellant the Assistant Collector passed an order dated November 17/21, 1986 holding that products Neftin 50, Neftin 200 and Bifuran Supplement manufactured by the appellant are correctly classifiable under erstwhile Tariff Item 14E and that effec tive from February 8, 1986 the said products are 449 classifiable under sub heading 3003.9.
The said order was set aside by the Collector of Central Excise (Appeals) by his order dated May 28. 1987.
who held that the said products are animal feed supplements and these products merit classification only under the erstwhile Tariff Item 68 and not under Tariff Item 14E. Aggrieved by the said order of the Collector (Appeals) the Department filed an appeal before the Customs, Excise & Gold Control Appellate Tribu nal, which was allowed by order dated June 29, 1989.
The tribunal held that the aforesaid three products manufactured by the appellant are patent and proprietary medicines as defined in Tariff Item 14E inasmuch as they have therapeutic and preventive use in respect of the specific ailments in animals.
The tribunal was also of the view that if the products satisfy the requirements of Tariff Item 14E there was no question of considering their classification under Tariff Item 68, which is a residuary item.
Aggrieved by the said order of the tribunal the appellant has filed this appeal under Section 35L of the Central Excise and SaIL Act, 1944.
During the course of arguments Shri K.K. Venugopal, the learned counsel for the appellant fairly stated that accord ing to the printed pamphlet issued by the appellant the use of Bifuran Supplement is to promote growth rate, weight gains and feed conversion efficiency in growers and broilers by keeping coccidiosis away during growing period, and that the said product can be regarded as preventive medicine failing under Tariff Item 14E and he has confined his sub missions in respect of the other two products, namely, Neftin 50 and Neftin 200.
Shri Venugopal has urged that Neftin 50 and Neftin 200 are manufactured by the appellant for use as animal feed supplement and not for use as medicine and therefore they should have been classified as animal feed supplement under Tariff Item 68 and were exempted from payment of central excise duty under notification dated February 15. 1984.
Shri Venugopal has invited our attention to the printed litera ture issued by the appellant for the sale of these products as well as certain certificate issued with regard to the use of these products as additive to poultry feed and their usefulness for that purpose.
Shri Venugopal has pointed out that in the printed literature it has been specifically mentioned: "For use in poultry feed only.
Not for medicinal use.
" Shri Venugopal also pointed out that as regards uses of Neftin 50 and Neftin 200 it is stated in the said printed literature: 450 "To improve egg production, feed/egg ratio and hatchability in layers; to increase weight gains and growth rate in broilers and growers." The learned Additional Solicitor General, on the other hand, has urged that both these products are patent and proprietary medicines chargeable to central excise duty under Tariff Item 14E.
In this connection the learned Addi tional Solicitor General has pointed out that Neftin 50 contains Furazolidone 5% W/W and Neftin 200 contains Furazo lidone 20% W/W.
The submission of the learned Additional Solicitor General is that Furazolidone is used as an aid in the prevention of coccidiosis as well as for treatment of coccidiosis and that Furazolidone is a patent drug and in England it is sold to the public on the prescription of a registered practitioner only.
The learned Additional Solici tor General also urged that the finding that aforesaid two products are patent and proprietary medicines falling under Tariff Item 14E is essentially a finding of fact based on the materials placed before the excise authorities and the said finding is not normally open to challenge in appeal before this Court.
The submission of the learned Additional Solicitor General is further that in the present case it cannot be said that the aforesaid products manufactured by the appellants can be regarded as animal feed supplement as defined in Explanation II, inserted by notification dated February 15,1984 in the notification dated November 1, 1982.
In the instant case we are not required to consider the scope of two competing entries of the Excise Tariff because Item 68 was a residuary entry which dealt with all other goods not elsewhere specified.
A product which is found to be covered by the other items of the Schedule of the Excise Tariff would be outside the ambit of Item 68.
Therefore, the primary question to be considered is whether the products in question, namely, Neftin~50 and Neftin 200, are patent and proprietary medicines falling within Item 14E.
In this context we may refer to the decision of this Court in Dunlop India Ltd. vs Union of India and Others, ; where the question was whether V.P. Latex manufactured by the appellant in that case was raw rubber and classifiable under Item 39 or it was classifiable under the residuary entry contained in Item 87.
It was found that V.P. Latex fell within Item 39 and in view of the said finding it was held that it could not fall within the resid uary entry of Item 87.
It was observed: 451 "When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classifi cation to deny it the parentage and consign it to an orphan age of the residuary clause.
The question of competition between two rival classification will, however, stand on a different footing." (P. 113).
Similarly in Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co.; , the question was whether carbon paper was taxable under Item 17 or under the residuary entry at Item 68.
It was found that carbon paper was taxable as paper under Item 17(2) and, therefore, it would not fall in the residuary entry at Item 68.
As noticed earlier, Item 14E refers to patent or pro prietary medicines.
The expression 'patent or proprietary medicines ' has been defined in Explanation I in Item 14E to mean any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailment in human beings or animals.
What is, therefore, required is that the product must be a prepara tion for use in the treatment or prevention of ailments in human beings or animals.
Neftin 50 contains Furazolidone 5% W/W and Neftin 200 contains Furazolidone 20% W. The Assist ant Collector in his order dated 17/21 November, 1986 has referred to the following authorities on the subject.
(a) British Pharmacopoeia 1980, Vol.
I, wherein with refer ence to Furazolidone it has been stated: "A yellow crystalline powder, odourless, to be protected from light.
An antibacterial, antifungal and antiprotozol." (P. 205) (b) British Pharmacopoeia Codex 1979 wherein it has been stated: "A bacteriacide which is observed only slightly from the intestinal mucosa and has therefore been used in the treat ment of bacterial diarrhoea and gestro enteritis.
It is also active against, "Giardia lamblia." "Furazolidone is used in animals as an antibacterial agent 452 and for the promotion and treatment of histomoniasis." "For histomoniasis in poultry, the usual prophylectic dosage is 100 ppm in the feed and the usual therapeutic dosage is 400 ppm in the feed for 10 days." (P. 376) (c) Scientific Foundations of Veterinary Medicine, 1980 Edn.
: "Bloody or cecal coccidiosis is an acute hemorrhagic disease and is the most severe form of coccidiosis in chickens." "Furazolidone is fed continuously at 0.0055% in the feed as an aid in the prevention of coccidiosis caused by E. tenel la, E. necatrix, and E. acervulina.
Furazolidone can also be used for the treatment of these same coccidia species when fed at 0.011% for 5 to 7 days." (P. 193) (d) Medicines and Poisons Guide, 2nd Edn. 1980, prepared by the Law Department of Pharmaceutical Society of Great Brit ain: "Furazolidone is a prescription only veterinary drug and by virtue of an entry in the medicines order (prescription only) may be sold or supplied to the public only on a prac titioner 's prescription." (P. 59) These observations indicate that Furazolidone is an antibacterial, antifungal and antiprotozol compound and it is used for prevention and treatment of coccidiosis as well as histomoniasis in poultry.
From this material it also appears that in England Furazolidone is a prescription only veterinary drug and it can be sold or supplied to the public on a practitioner 's prescription only.
Furazolidone is thus a drug or medicinal preparation used for treatment and prevention of ailments in poultry and since Neftin 50 and Neftin 200 contain only Furazolidone, the said products are also drugs or medicinal preparations for use in the treat ment and prevention of ailments in poultry.
In this context it would be relevant to mention that apart from Neftin 50 and Neftin 200 the appellant also manufactures Neftin Tab lets.
The appellant has not disputed that Neftin Tablets manufactured by it are drugs or medicines falling within the ambit of Item 14E and it pays central excise duty on the same.
Shri Venugopal has laid stress on the word "used" in Explanation I in Item 14 ,red has submitted that Neftin Tablets are manufactured 453 for use as medicine whereas Neftin 50 and Neftin 200 are manufactured for use as animal feed supplement and are not manufactured for use as medicine.
Shri Venugopal has invited our attention to the decision of this Court in Annapurna Carbon Industries Co. vs State of Andhra Pradesh, ; In that case the question for consideration was whether Cinema Arc Carbons were taxable to sales tax under the entry relating to cinematographic equipment and parts and accessories 'required for use therewith '.
This Court held that the main use of the arc carbon was proved to be that of production of powerful light used in projectors in cinemas and the fact that they can also be used for search lights, signalling, stage lighting or where powerful light ing for photography or other purposes may be required, could not detract from the classification to which the carbon arc belong, which is determined by their ordinary or commonly known purpose or user and hence their sale was subject to sales tax under the said entry.
Here we find that Neftin 50 and Neftin 200 contain Furazolidone which is administered for prevention and treatment of ailments viz., Coccidiosis and Histomoniasis in poultry.
Merely because Neftin 50 and Neftin 200 can also be used for improving egg production and increase in growth rate of broilers would not in any way detract from the fact that the said products are medicines for use in the treatment and prevention of ailments in poultry.
Once it is found that Neftin 50 and Neftin 200 are medicines for use for treatment and prevention of ailments in poultry they have to be regarded as patent and proprie tary medicines chargeable to excise duty under Item No. 14E and the question whether the said products fail in the residuary, entry at Item 68 does not arise.
The exemption from payment of central excise duty which has been granted under notification dated November 1, 1982 as amended by notification dated February 15, 1984, is confined in its application to goods specified in the Sched ule annexed to the said notification which fall under Item 68.
The said notification does not grant exemption in re spect of a product falling in any other entry of the excise tariff.
It cannot be construed as transferring a product from an entry other than Item 68 to Item 68.
The insertion of animal feed supplement in the Schedule to the Notifica tion dated November 1, 1982 by the Notification dated Febru ary 15, 1984, would not mean that a product which was liable to payment of central excise duly under Item 14E prior to such insertion would cease to be so liable and would become exempt from such payment of duty by virtue of this notifica tion.
It is not disputed that prior to the notification dated February 15, 1984.
the appellant was paying central excise duty on Neftin 50 and Neftin 200 454 patent and proprietary medicines falling under Item 14E.
In the absence of any notification granting exemption in respect of products falling under Item 14E, Neftin 50 and Neftin 200, which are patent and proprietary medicines falling under Tariff Item 14E and which do not fall under the residuary entry at Item 68, cannot be claimed to be exempt from central excise duty as animal feed supplement under notification dated November 1, 1982, as amended by notification dated February 15. 1984.
Shri Venugopal has contended that the appellant has been subjected to arbitrary and hostile discrimination inasmuch as similar products of other manufacturers which contain the same percentage of Furazolidone as Neftin 50 and Neftin 200 are being exempted from payment of central excise duty under notification dated November 1, 1982.
as amended by notifica tion dated February 15, 1984.
In support of this submis sion Shri Venugopal has invited our attention to the pam phlets issued by other manufacturers about their products and the contents of those products.
Shri Venugopal has placed reliance on the decisions of the U.S. Supreme Court in Cumberland Coal Co. vs Board of Revision, 76 Law Edn. 147 and Iowa Des Moines National Bank vs E.R. Bennett, 76 Law Edn. 265 as well as the decision of this Court in Vishnudas Hindumal Etc.
vs State of Madhya Pradesh and Ors.
, ; The learned Additional Solicitor General has submitted that the other manufacturers referred to by Shri Venugopal are located at different places and are assessable to excise duty by different authorities and that merely because the relevant notifications have been wrongly applied to those manufacturers by the concerned authorities and the said manufacturers are enjoying exemption from duty in respect of their products would not mean that the impugned order passed against the appellant is liable to be quashed on the ground on violation of the right to equality under Article 14 of the Constitution.
The learned Additional Solicitor General has also stated that proceedings would be initiated against those manufacturers in the light of the decision of this Court in this case.
It is not the case of the appellant that the same au thority has passed orders discriminating between the appel lant and other producers of similar products.
The grievance of the appellant is that on account of difference in the interpretation of notification dated February 15, 1984, amending notification dated November 1, 1982, by the excise authorities in other regions while the appellant is being required to pay excise duty on Neftin 50 and Neftin 200 manufactured by it, other manufacturers of similar products in other regions are 455 enjoying exemption from payment of such duty.
The appellant, in substance, wants that because other producers have been granted exemption, though wrongly, the same exemption should be extended to it.
In our opinion this is impermissible.
The appellant cannot obtain such an exemption in disregard of the law by invoking the right to equality before the law and equal protection of the laws guaranteed under Article 14 of the Constitution.
A similar question arose before this Court in Narain Dass vs The Improvement Trust, Amritsar & Another, AIR 1972 S.C. 865.
In that case it was contended that while administering Section 56 of the Punjab Town Improvement Act, 1922, there had been hostile discrimination against the appellants because lands under orchards belonging to persons similarly placed had been exempted whereas the appellants had been refused exemption.
Rejecting this contention this Court has observed: "In any event if the appellants had failed to bring their case within Section 56 of the Act, then merely because some other party had erroneously succeeded in getting his lands exempted ostensibly under that Section that by itself would not clothe the present appellants with a right to secure exemption for their lands.
The rule of equality before the law or of the equal protection of the laws under Article 14 could not be invoked in such a case.
" In Cumberland Coal Co. (Supra) and Iowa Des Moines National Bank (supra) it was found that there was intention al and systematic discrimination in favour of certain per sons by the officials administering the law.
In the instant case it is not said that there has been intentional and systematic discrimination in favour of the producers other than the appellant.
The said decisions have, therefore no application to the present case.
Vishnudas Hindureal vs State of Madhya Pradesh (Supra) was in respect of a scheme for nationalisation of motor transport whereunder the permits of the appellants before this Court had been curtailed and they were prohibited from operating their stage carriages on that portion of the route for which they had permits which was overlapping with the notified route while others similarly situate were permitted to ply their stage carriages over the routes for which they had permits passing over a portion of the notified route without any let or hindrance and their permits were neither curtailed nor cancelled.
This Court found that this was due to an error or omission on the part of the Regional Trans port Authority in not supplying full information to the 456 Special Secretary about all the valid permits in force at the relevant date, After referring to the decision of this Court in Ramnath Verma vs State of Rajasthan, ; wherein it was held that discrimination under Article 14 is conscious discrimination and not accidental discrimination that arises from oversight which the State is ready to rectify, this Court observed: " We did not find any willingness on the part of the State authorities to rectify the error in the High Court or before this Court." In these circumstances.
this Court, instead of rejecting the whole scheme, considered it appropriate to rectify the same by removing the discrimination by putting the appel lants before it in the same class as those who had enjoyed favourable treatment by inadvertance on the part of the Regional Transport Authority.
The present case stands on a different footing.
Here the discrimination complained of arises on account of orders passed by different excise authorities acting quasi judicially.
Moreover it cannot be said that there is no willingness on the part of the author ities to recover excise duty on similar products manufac tured by other producers because the learned Additional Solicitor General, during the course of his arguments, has indicated that proceedings would be initiated against those manufacturers in the light of the decision of this Court in this case.
The decision in Vishnudas 's case (supra) has, therefore, no application to the present case.
For the reasons aforesaid we find no substance in this appeal and it is accordingly dismissed.
There will be no order as to costs.
P.S.S. Appeal dismissed.
| The Water (Prevention & Control of Pollution) Act, 1974 was enacted inter alia to provide for the prevention and control of water pollution, the maintaining or restoring of wholesomeness of water, etc.
Section 25 of the said Act provides that no person shall without the consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade effluent into a stream or well, or begin to make any new discharge of sewage or trade effluent into a stream or well.
Section 26 lays down that persons discharging sewage or trade effluent into a stream or well before the commencement of the Act shall apply for consent within a period of three months of the Constitution of State Board.
Thereafter the was enacted to provide for the levy and collection of cess on water consumed by persons carrying on certain industries, Power (Thermal & Diesel) Generating Industry was one such industry included at item No. 14 in Schedule I to the Act.
Section 3 of the 1977 Act provides that there shall be levied and collected a cess for the purposes of the 1974 Act and utilisation thereunder.
The cess under the Act is made payable by every person carrying on any specified industry and the same has to be calculated on the basis of the water actually consumed at rates speci fied in the Schedule.
Section 7 of the Act provides for rebate.
The appellant has established a Thermal Power Station on the bank of River Chambal for generating energy.
It consumes water from the river for condensor cooling.
After the water is used for cooling, it is treated as a trade effluent in the neutralisation plant before it is discharged into the river.
According to the appellant, the temperature, 121 after following the prescribed procedure, is brought down to below 40 C, when it is discharged into the river.
The appel lant had also installed a 0.4 MGD plant for treatment of sewage.
According to the appellant both these plants are working satisfactorily.
The appellant, as required by the rules, submitted monthly returns of the water consumed from the river for its Thermal Station for the period from July 1983 to January 1984 and February 1984 to June 1984.
The respondent authority.
assessed the cess at Rs.13,13,710 for the first period and Rs.9,42,013 for the subsequent period.
No rebate was allowed under Section 7 of the 1977 Act on the ground that the so called neutralisation plant was not a plant for the treatment of sewage or trade effluent within the meaning of the said provision.
The appellant filed an appeal under section 13, in respect of the cess claimed for the period July 1983 to January 1984, but the appellate authority dismissed the same holding that the cess was correctly assessed and that the appellant was not entitled to rebate.
As regards the period from February 1984 to June 1984.
the appellant submitted a review petition which was rejected by respondent No. 2.
Thereupon, the appellant filed separate writ petitions before the High Court challenging the assessment orders.
Both the writ petitions were dismissed by the High Court.
The High Court opined that there was nothing on record to show that the appellant had applied for consent of the State Board to install a plant either under section 25 or section 26 of the 1974 Act nor was there any evidence to show that such consent was given.
It accordingly held that the author ities under the Act had rightly disallowed the claim of rebate to the appellant under section 7.
Against the orders of the High Court as also against various assessment orders which were passed subsequent to the orders of the High Court the appellant has filed these appeals, after obtaining special leave.
Allowing the appeals, and remanding the cases to the Assessing Authority for fresh disposal, this Court HELD: A plant has undoubtedly been installed for the treatment of sewage and no dispute in that behalf was raised.
However, as the bulk consumption of water from the river is used at the condensor cooling plant the question is whether the appellant can be said to have installed a plant for the treatment of a trade effluent.
[130G] The Appellate Authority took the view that a 150 fl.
long channel meant for carrying the trade effluent cannot be described as treatment plant.
The appellant contended that the treatment plant installed 122 by it comprised of an arrangement to lift the water to a height of 2211.
and then drop it from that height into an open channel so that it cools down on coming in contact with the atmosphere and then flows towards and into the river.
[130H; 131A] Section 7 as well as Rule 6 do not envisage the Board 's consent under Section 25(1) of the 1974 Act as a sine clua non.
Under Section 7 the consumer has only to show that he has installed a plant for the treatment of sewage or trade effluent and that it functioned successfully during the relevant period to earn rebate.
Section 25(1) operates in a different field and has nothing to do with a plant installed for the treatment of a trade effluent although the grant of consent to a new outlet can be conditional on the existence of a plant for the satisfactory.
treatment of effluents to safeguard against pollution of the water in the stream.
[131C E] Since the Board 's consent under Section 25(1) was not imperative that part of the High Court 's order cannot be sustained.
[131E]
|
Appeal No. 374 of 1965.
Appeal by special leave from the judgment and decree dated August 9, 1963 of the Madras High Court in L.P.A. No. 45 of 1962.
A. V. Narayanaswami Iyer and section Venkatakrishnan, for the appellant.
A. K. Sen, N. Natesan and R. Ganpathy Iyer for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment and decree of the Madras High Court dated August 9, 1963 in Letters Patent Appeal No. 45 of 1962.
119 The suit which is the subject matter of this appeal was filed by the Tirunagar Panchayat, hereinafter called the 'Panchayat ', against the Madurai Co operative House Construction Society (hereinafter called the 'Society ') in the District Munsif 's Court of Tirumangalam.
The Tirunagar Colony has been formed by the Society.
The Colony consists of about 300 houses and its total population exceeds 1,500.
At its inception the colony was within the jurisdiction of the Tirupparakundram Panchayat.
On February 21, 1955 the Tirunagar colony was excluded from Tirupparankundram Pan chayat and was declared as a separate village and was constituted as a separate Panchayat known as Tirunagar Panchayat.
In the formation of the colony the Society has laid out and set apart and formed public roads, parks, play grounds and other public common places.
There was a change in the Board of Directors of the. defendant Society and as a consequence of this change the Society passed a resolution on July 23, 1956 cancelling its previous resolution handing over the roads, streets and scavenging arrangements to the Panchayat.
The Panchayat therefore filed a suit O.S. 38 of 1957, in the District Munsif 's Court of Tirumengalam for an injunction restraining the Society and its servants from obstructing and interfering with its lawful exercise of statutory duties relating to the roads and streets in Tirunagar and cleaning of latrines, public and private, lighting the houses and roads and making arrangements for the civic needs of the village of Tirunagar.
The Society contested the suit on the ground that the constitution of the Panchayat was illegal as the provisions of the Madras Village Panchayats Act (Madras Act 10 of 1950), hereinafter to be called the 'Act ', had not been complied with.
The Society also contended that the public cannot use the roads or streets as a matter of right, that the entire colony was a closed one and no outsider except the members of the Society had the right to enter the colony and that the Parks, central oval, play grounds and open spaces were the exclusive properties of the Society.
The contentions of the Society were all over ruled by the trial court and a permanent injunction was granted to the plaintiff Panchayat, as prayed for.
The decision of the trial court was affirmed by the Subordinate Judge of Madurai in A.S. 92 of 1958.
The Society took the matter in Second Appeal to the High Court.
The appeal was partly allowed by Ramakrishnan,J. who held that the streets and roads in Tirunagar colony alone would vest in the Panchayat and that the injunction passed by the lower appellate court should be confined only to streets and roads in the colony and should not be extended to any other place like the parks, oval park, play grounds, schools, library or club and such other amenities which the Society had provided for the residents of the colony.
The decision of Ramakrishnan, J. was affirmed by the High Court in Letters Patent Appeal and the injunction granted by the lower courts was accordingly Confined to roads and streets and the cleaning of public and private latrines, and the decree of the lower courts was set aside so far as the injunction related to the parks.
play grounds, bus stand and other public places.
120 The question presented for determination in this appeal is whether there is a statutory vesting in the panchayat of the parks, play grounds, schools, libraries and other public places which the Society provided for its members and whether the Panchayat is entitled to a permanent injunction restraining the Society and its servants in the manner decreed by the trial court.
On behalf of the appellant reference was made to sections 56 and 58 of the Act relating to vesting of the property in the Panchayat.
Section 56 of the Act reads as follows: "56.
(1) All public roads in any village (other than district roads and roads which are classified by the Government as national or State highways), shall vest in the panchayat together with all payments, stones and other materials thereof, all works, materials and other things provided therefore, all sewers, drains, drawings works tunnels and culverts, whether made at the cost of the panchayat fund or otherwise, in, alongside or under such roads, and all works, materials and things appertaining thereto.
Section 58 is to the following effect: "Any property or income which by custom belongs to, or has been administered for the benefit of, the villagers in common, or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of irrigation shall vest in the panchayat and be administered by it for the benefit of the villagers or holders aforesaid.
" The rules framed under the Co operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres, hospitals, clubs, religious places etc.
should be made in the layout.
Reference was made, on behalf of the appellant, to the layout plan exhibit A 44 for the Tirunagar Housing colony.
There is evidence in this case that the Government had assigned to the House Building Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc.
It was submitted on behalf of the appellant that the parks, play grounds, hospitals, schools etc.
of the Tirunagar Housing Colony would vest in the Panchayat under section 58 of the Act.
We do not consider that there is any justification for this argument.
Under section 56 of the Act all 'public roads ' in any village shall vest in the Panchayat together with all, pavements, stones and other materials thereof, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise.
Under section 2(20) of the Act a ` public road ' means "any street, road, square, court, alley, passage, cart track, footpath or riding path, over which the public have a 121 right of way".
Section 58 of the Act provides for vesting of the communal property in the panchayat.
By this section the legislature has provided that any property or income which by custom belongs to the villagers in common, or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat.
The legislature has further provided in this section that any property or income which by custom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid.
In enacting section 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (1) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or of lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description.
Having regard to the grammatical structure and the context, we are of opinion that the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common.
It is manifest that section 58 provides for the vesting of such property and income to which the villagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of custom.
It was argued on behalf of the appellant that if parks or play grounds or markets had been.
dedicated to the public the Panchayat would acquire title to such properties under section 58 of the Act.
We do not think that dedication is a relevant circumstance in considering the scope and meaning of section 58 of the Act.
In the enactment of this section the legislature did riot contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact of such dedication.
What is required by section 58 for the ' purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income.
Vesting of rights takes place under section 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common.
Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income ad ministered for the benefit of the villagers in common.
For example, the Society may have established a library or a social club or a school for the benefit of its members Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village.
In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of section 58 of the Act.
It cannot be supposed that such a startling and unjust result was contemplated by the, 122 legislature in enacting section 58.
We are accordingly of the opinion that the scope of section 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony.
For these reasons we hold that the judgment and decree of the High Court in Letters Patent Appeal No. 45 of 1962 is correct and this appeal must be dismissed with costs.
Appeal dismissed.
| The assessees carried on business in the State of Madras and were registered dealers under the .
In proceedings for assessment for central sales tax for the year 1957 58 the assessees claimed that they were liable to pay tax at the concessional rate of tax on the turnover under sec.
8(1) of the Act where sales were made by them to registered purchasing dealers who furnished declaration in Form 'C".
The common question considered in these appeals was: When a purchasing dealer in one State furnishes in Form 'C ' prescribed under the Central Sales Tax (Registration & Turnover) Rules, 1957, to the selling dealer in another State a declaration, certifying that the goods ordered, purchased or supplied are covered by the certificate of registration obtained by the purchasing dealer in Form 'B ' prescribed under r. 5(1) of the Central Sales Tax (Regis tration & Turnover) Rule. ,, 1957, and that the goods are intended for resale, or for use in manufacture of goods for sale, or for use in the execution of contracts, or for packing of goods for resale, and that declaration is produced by the selling dealer, is it open to the Sales Tax authority under the to deny to the selling dealer the benefit of concessional rates under section 8(1) of the , on the view that the certificate in Form 'C ' mentions more purposes than one for which the goods are intended to be used, or that the goods are incapable of being used for the purpose for which they are declared to be purchased, or that the goods are applied for some other purpose not mentioned in the certificate in Form 'C '? HELD: The Act and the Rules do not impose an obligation upon the purchasing dealer to declare that goods purchased by him are intended to be used for one purpose only, even though under his certificate of registration in Form 'B ' he is entitled to purchase goods of the classes mentioned in section 8(3) (b) for more purposes than one.
When the purchasing dealer furnishes a certificate in Form C without striking out any of the four alternatives, it is a representation that the goods purchased are intended to be usedfor all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules.
The Sales Tax Officer may scrutinise the certificate to find out whether it is genuine and may also examine the registration certificate of the purchasing dealer.
to see if the goods are covered by it.
But it is not for him to hold an enquiry whether the goods specified in the certificate of registration of the purchaser can be used by the purchasing dealer for any of the purpose mentioned in Form 'C '.
or whether they should have been specified in the registration certificate or even that the goods purchased have in fact not been used for the purpose declared in the certificate.
[2O6 B D] 199 It is contemplated in sec.
7 and the Rules that the certificate of registration may only be issued after an objective satisfaction by the notified authority that the specified goods are likely to be needed for the purpose of business of the registered dealer, and that satisfaction is open to challenge in an appropriate proceeding before the High Court and even before this Court.
Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form 'E ' that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceedings for assessment of tax.
[206 G 207 B].
Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes, Bihar & Others 16 S.T.C. 259 and J.K. Cotton Spinning Another 16 S.T.C. 563, referred to.
|
: Criminal Appeal Nos. 703, 7 12 of 1989 and 13 of 1990.
From the Judgment and Order dated 27.10.1989 of the Designated Court/Judge at Jalgaon in Crl.
Appln.
No. 524 of 1989 in T.A.D.A. Case No. 9 of 1989 dated 2.9.1989 in Crl.
Appln.
No. 357 of 1989.
WITH Special Leave Petition (Crl.) No. 2459 of 1989.
From the Judgment and Order dated 15.11.1989 of the Bombay High Court in Crl.
Appln.
No. 687 of 1989.
Appellant in person in Crl.
A. No. 703 of 1990.
B.A. Masodkar, U.R. Lalit and G.B. Sathe for the Appel lant Petitioners.
V.N. Patii and A.S. Bhasme for the Respondents.
S.K. Pasi for the Intervenor.
The Judgment of the Court was delivered by AHMADI, J.
These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave 637 petition under Section 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, (hereinafter called 'the Act '), Sections 302, 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companion Keshav Vitthal, the first informant.
The facts giving rise to these proceedings are as under: On the afternoon of the 12th July, 1989 when Raju and his companion Keshav were proceeding on a motor cycle at about 3.00 p.m. they were intercepted by the accused Jiten dra and one another known as a wrestler.
Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot.
Two of them were armed with knives and the third possessed an iron rod.
On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the driver 's seat aban doned the motor cycle and ran in another direction.
Two of the accused persons ran after Raju while the others includ ing the wrestler chased Keshav.
On being over taken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh dealt blows with the iron rod.
Thereafter all the three fled from the scene of occurrence.
The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious condition on the road.
Both the injured were removed to the hospital.
Raju suc cumbed to the injuries soon after reaching the hospital.
Keshav, however, responded to medical treatment and has survived to give evidence.
On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav.
On the basis there of an entry was made in CR No. 138 of 1989 and a case under Section 302 and 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act was registered.
The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked Section 3 of the Act.
On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, contending that the provisions of the Act had been wrongly and maliciously invoked.
The said application was heard and decided by the Designated Court on 2nd Septem ber, 1989 which took the view that Section 3 of the Act was wrongly applied.
Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/89.
As the accused were directed to approach the regular court, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmad 638 nagar.
The said bail applications were, however, rejected on 25th September, 1989.
Against the said rejection the accused approached the High Court.
While those matters were pending in the High Court, the prosecution submitted a charge sheet against the accused in the Designated Court at Jalgaon.
Thereupon the High Court rejected the applications.
The accused again approached the Designated Court for bail.
The Designated Court once again came to the conclusion that, in the facts and circumstances of the case, Section 3 of the Act had no application and discharged the accused on that count under Section 227 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code ').
By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Sessions, Ahmadnagar, on the other charges and the accused were granted liberty to move that court for bail.
Against the said order Criminal Appeal No. 703/89 has been preferred by Raju 's father while the State of Maharashtra has filed Criminal Appeal No. 13/90.
Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case.
Special leave petition No. 2459/ 89 is preferred by the original accused against the said order.
The Act was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto.
Section 2(d) defines the expression 'disruptive activity ' to have the meaning assigned to it in section 4.
Section 2(h) defines the expression 'terrorist act ' to have the meaning assigned to it under section 3(1) of the Act.
The relevant part of Section 3(1) provides that whoever, with intent (i) to overawe the Government as by law estab lished or (ii) to strike terror in the people or any section of the people or (iii) to alienate any section of the people or (iv) to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of/or injuries to any person or persons, commits a terrorist act.
Section 3(2) lays down the penalty for the commission of such an act.
Section 4(1) prescribes the penalty for indulging in any disruptive activity.
Sec tion 4(2) defines a disruptive activity to mean any action taken in whatever manner (i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union.
Section 6 provides enhanced penalty for aiding any terrorist or disruptionist.
Part III of the Act creates the machinery for trying 639 terrorists and disruptionists charged with the commission of any offence under the Act.
Section 9 empowers the Central Government as well as the State Governments to constitute by notification one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification.
Section 9(6) provides that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State.
Section 11 says that every offence punishable under the provisions of the Act or the rules made thereunder shall be tried by a Designated Court constituted under Section 9(1) of the Act.
Section 12(1) is relevant for our purpose and reads as under: "When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is con nected with such other offence.
" Section 14 sets out the procedure and powers of Designated Courts.
Sub section 3 of the Section 14 is relevant for our purpose.
It reads as under: "Subject to other provisions of this Act.
Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions.
" Section 16 offers protection to witnesses.
Section 17 gives procedence to trials by Designated Courts.
Section 18 empow ers the Designated Courts to transfer cases to regular Courts.
This Section reads as under: "Where, after taking cognizance of any offence, a Designated Court is of opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such of fence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
" Section 19 provides for an appeal to the Supreme Court both on facts 640 and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court.
Section 20(1) makes an offence under the Act or the rules, a cognizable one.
Sub section (8) of section 20 lays down that notwith standing anything contained in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
Section 21 mandates the Designated Court to presume, unless the contrary is proved, that the accused has commit ted an offence under Section 3(1) if one of the four things set out in clauses (a) to (d), is proved.
Section 22 permits identification of the offender on the basis of his photo graph.
Section 28 empowers the Central Government to make rules on any of the matters set out in clauses (a) to (f) of sub section (2) thereof.
Such rules have to be laid before both the Houses of Parliament.
This in brief is the scheme of the Act.
Under Section 14(3) of the Act a Designated Court is conferred with the powers of a Court of Sessions and is required to try any offence under the Act 'as if it were ' a Court of Sessions.
The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions.
This is of course subject to the other provisions of the Act which means that if there is any provision in the Act which is not consistent with the procedure stipulated in the Code for such trials, it is the procedure in the Act that shall prevail.
The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code.
Section 225 places the public prosecutor in charge of the conduct of the prosecution.
Section 226 requires him to open the prosecu tion case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused.
Once that is done the Judge has to consider whether or not to frame a charge.
Section 227 of the Code reads as under: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the sub . missions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
" 641 Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him.
On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code.
Once the charge is framed the trial must ordinari ly end in the conviction or acquittal of the accused.
This is in brief the scheme of Sections 225 to 235 of the Code.
Section 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the threshold if 'upon consideration ' of the record and documents he considers 'that there is not suffi cient ground ' for proceeding against the accused.
In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused.
If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under section 228, if not he will discharge the accused.
It must be remembered that this section was intro duced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.
The next question is what is the scope and ambit of the 'consideration ' by the trial court at that stage.
Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the con clusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged.
At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evi dence with a view to separating the grain from the chaff.
All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution.
In the State of Bihar vs Ramesh Singh, ; this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for 642 proceeding against the accused.
If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
In Union of India vs Prafulla Kumar Samal & Anr., ; , this Court after considering the scope of section 227 observed that the words 'no sufficient ground for proceeding against the accused ' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judi cial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution.
In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredi ents constituting the said offence.
After considering the case law on the subject, this Court deduced as under: "(1) That the Judge while considering the question of fram ing the charges under section 227 of the Code has the un doubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.
By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code of Judge which (sic) under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth piece of the prosecution, but has to con 643 sider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
" Again in Supdt. & Remembrancer of Legal Affairs, West Bengal vs Anil Kumar Bhunja & Ors., ; this Court observed in paragraph 18 of the Judgment as under: "The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or other wise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973.
At this stage, even a very strong suspicion rounded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well settled that at the Sections 227 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.
The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
The Act is a penal statute.
Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also; make confessional state ments made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses (a) to (d) of sub section (1) of Section 21.
Provision is also made in regard to the identification of an accused who is not traced through photographs.
These are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism.
These provi sions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effec tive to deal with the special class of offenders indulging in 644 terrorist and disruptive activities.
There can, therefore, be no doubt that the Legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same.
The legislature, therefore, made special provisions which can in certain respects b.e said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects.
It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strict ly construed.
In Usmanbhai Dawoodbhai Memon & Ors.
vs State of Gujarat, ; this Court in paragraph 15 of the judgment observed as under: "The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law.
The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country.
Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the govern ment 's law enforcing machinery fails.
" To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and con trolled under the ordinary law of the land.
It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activi ties that resort should be had to the drastic provisions of the Act.
While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga tion that facts emerging therefrom prima facie constitute an offence within the letter of the law.
When a statute pro vides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordi nary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution.
Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law.
But that does not mean that the judicial officer called upon to decide whether 645 or not a case for framing a charge under the Act is made out should adopt a negative attitude.
He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him.
We may now proceed to apply the law stated above to the facts of the present case.
The prosecution case against the five accused persons is that they formed an unlawful assem bly, killed Raju and injured keshav 'with intent to strike terror in the people or any section of the people ' i.e. the residents of the locality, by the use of lethal weapons such as knives and iron rods and thereby committed offences punishable under Section 3(1) of the Act read with the offences under the Penal Code and the Bombay Police Act.
When the complaint was lodged by the injured Keshav on 12th July, 1989 no offence under section 3(1) of the Act was registered.
The offence under section 3(1) of the Act was introduced for the first time on 29th July, 1989.
That means that between 12th July, 1989 and 29th July, 1989 the Inves tigating Officer collected evidence which enabled him to register an offence under section 3(1) of the Act.
When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the conclusion that prima facie section 3(1) of the Act had no application.
In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prose cution case that section 3(1) of the Act was attracted.
It may be stated that accused Santosh Rathod runs a cycle repair shop.
On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured.
At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under: "Presently Raju and Keshav are having dominance in the town.
We would become dadas of the town upon taking lives out of them.
Then there would not be any rival to us in this town.
Upon commission of murder of Raju and Keshav on account of tenor the people would be scared.
" This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb.
Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang.
Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and 646 no one will dare to raise his voice against them.
Bhika spoke about the previous incident on the same day at about 11.30 a.m. which shows that there was rivalry between the two gangs.
Mr. Masodkar, the learned counsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, contended that the acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was committed.
Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party.
The Designated Court came to the conclusion that the material placed before it and the statements re corded by the Investigating Officer did not disclose the commission of an offence under Section 3(1) of the Act.
According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld.
The learned Judge presiding over the Designated Court then proceeds to add as under: "True it is that few people might have been terror striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act.
If at all people are getting terror striken, it is those few people who live by the crime and not the people law abiding majority of citizens.
Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld." The learned Judge also came to the conclusion that there was nothing on record to show that the Government 's law enforc ing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to combating the menace of terrorism.
We have carefully considered the statements of the witnesses on which the prosecution relies in support of its contention that the accused had committed an offence under section 3(1) of the Act.
We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld.
A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 3(1) of the Act.
That may indeed 647 be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime.
It is clear from the statement extracted earlier that the inten tion of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such.
But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act.
It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other.
The former desired to gain suprema cy which necessitated the elimination of the latter.
With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter.
Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people.
It would have been a different matter if to strike terror some innocent persons were killed.
In that case the intention would be to strike terror and the killings would be to achieve that objective.
In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining suprema cy in the underworld.
The consequence of such violence is bound to cause panic and fear but the intention of commit ting the crime cannot be said to be strike terror in the people or any section of the people.
We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commis sion of the offence punishable under section 3(1) of the Act.
It was next contended by the learned counsel for the State of Maharashtra that under section 12(1), when trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were committed in the course of the same incident.
Section 12(.1) no doubt empow ers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter.
That, however, does not mean that even when the Designated Court comes to the conclusion that there exists no sufficient ground for framing a charge against the accused under sec tion 3(1) of the Act it must proceed to try the accused for the commission of offences under other statutes.
That would tantamount to usurping jurisdiction.
Section 18, therefore, in terms provides that where after taking cognizance of any offence the Designated Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, 648 transfer the case for the trial of such offence to any court having jurisdiction under the Code.
Therefore, when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge under section 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code.
Once the Designated Court came to the con clusion that the evidence was not sufficient to frame a charge under section 3(1) of the Act, the Designated Court had no alternative but to resort to Section 18 and transfer the case to the competent court under the Code.
We, there fore, do not see any merit in the contention of the learned counsel for the State of Maharashtra that even after the Designated Court came to the conclusion that no ground was made out under section 3(1) of the Act, it was duty bound by virtue of section 12(1) of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act.
We think the course adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with section 18 of the Act.
Before we part we may state that Mr. Lalit the learned counsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and not to ordinary law and order problems.
We do not con sider it necessary to go into this larger question because, in our opinion, the Designated Court was fight in coming to the conclusion that this was a case of inter gang rivalry not attracting Section 3(1) of the Act.
In the above view that we take all the three appeals fail and are dismissed.
Mr. Lalit the learned counsel for the accused stated that since the High Court has directed expeditious disposal of the case he would not press the special leave petition directed against the High Court 's order refusing bail.
In view of the said statement, the Special leave petition No. 2459/89 will stand disposed of as not pressed.
We may, however, state that the Sessions Court to which the case stands transferred should endeavour to complete the trial as early as possible, preferably within four months from the date of receipt of this Court 's order.
T.N.A. Petition disposed of.
| The petitioner joined as a primary teacher in 1952 in an aided recognised school.
She was making contribution towards compulsory provident fund.
In 1975, the Delhi Administra tion, in consultation with the Accountant General, Central Revenue, issued a notification under Rule 126 of the Delhi School Education Rules, 1973, laying down detailed procedure for disbursement of pension and gratuity as also accounting of General Provident Fund in respect of the employees of aided schools.
The petitioner opted for the aforesaid scheme in 1976, which was duly counter signed by the Education Officer.
After the petitioner retired in 1977, she made a number of representations to the authorities concerned for payment of pension and gratuity.
She got a reply in 1987 that her case had been referred to the Government for policy deci sion.
Ultimately, Delhi Administration promulgated the pension scheme in the primary aided schools on and effective from 6th December, 1988.
The petitioner in her Writ Petition before this Court relied on the scheme announced by the Delhi Administration and the option exercised by her.
She claimed that to deprive her of the pension and gratuity under the said scheme was without any justification.
On behalf of the respondents it was contended that the scheme was brought into force only in 1988 by the said notification whereby the modalities for grant in aid to the local authorities were finalised and since the petitioner retired from service in 1977, she was not entitled to pen sion prior to the said notification.
Allowing the Writ Petition, this Court, HELD: 1.
The school in which the petitioner was working was an 754 aided school within the meaning of section 2(d) of the Delhi Education Act and its employees were entitled to the bene fits conferred by the notification dated 17th October, 1975.
[757B C] 2.
Since the Central Civil Services (Pension) Rules, 1972 would apply to the petitioner as contemplated by noti fication dated 17th October, 1975, she is obviously entitled to get pension with effect from the date on which she ceased to be borne on the establishment.
of the school in which she was working consequent upon reaching the age of superannua tion.
[757F G] 3.
The said notification having been issued by the competent authority and the petitioner, who was an existing employee of an aided school on the date of the issue of the said notification, having opted for the pension and gratuity within the stipulated period in the prescribed proforma which was duly countersigned by the Education Officer, she obviously became entitled to the benefits conferred by the said notification.
This is so all the more in view of the fact that the notification dated 17th October, 1975 did not contemplate finalisation of the modalities about contribu tion towards pension fund as a condition precedent to the entitlement of the benefits under the said notification.
The finalisation of the said modalities was a matter of details among the authorities concerned and could have no bearing on the entitlement to the benefits of the notification dated 17th October, 1975.
Such finalisation could not even defer the date of the entitlement.
[758A C] 4.
The respondents are directed to pay to the petitioner pension admissible to her in pursuance of the notification dated 17th October, 1975 with effect from the date of her retirement and also to pay to her the other retirement benefits.
They are further directed to finalise the requi site formalities in this behalf within three mouths and to issue payment orders immediately thereafter.
[758H; 759A B]
|
Appeal No. 109 of 1957.
Appeal by special leave from the judgment and order dated March 1, 1956, of the Bombay High Court in Appeal No. 20 of 1956.
G. section Pathak, K. H. Bhabha, H. M. Vakeel and I. N. Shroff, for the appellants.
C. K. Daphtary, Solicitor General of India, B. K. Khanna and P. D. Menon, for the respondents.
724 C. K. Daphtary Solicitor General of India section N. Andley, Rameshwar Nath and P. L. Vohra, for the Interveners.
April 11.
The Judgment of Sinha C. J., Ayyangar, Madholkar and Aiyar, JJ., was delivered by Ayyangar, J., Subha Rao, J. delivered a separate judgment.
AYYANGAR, J. This is an appeal by special leave from the judgment of a Division Bench of the Bombay High Court affirming the judgment of a learned Single Judge whereby a petition filed under Article 226 of the constitution by the appellants was dismissed.
By their petition, the appellants challenged the validity of a notification issued by Forward Markets Commission a statutory body created by the Forward Markets Regulation Act 1952 (LXXIV of 1952) (hereinafter referred to as the Act) to the authorities of the East India Cotton Association, Bombay (which will be referred to as the Association) intimating to them that the continuation of trading in certain types of forward contracts in cotton including that known as "hedge contracts" was "detrimental to the interest of the trade and the public interest and to the larger interests of the economy of India" and directed these contracts to be closed out, to be settled at prices fixed in the notification.
It is necessary to set out briefly certain facts in order to appreciate the points raised by the appeal.
The fast India Cotton Association is an "association" which has been recognised by the Central Government under a. 6 of the Act.
The three appellants are members of the Association carrying on business in partnership.
The appellants had, prior to December 1955, entered into "hedges contracts" in respect with other members of the Association for settlements in February and May 1956.
There was no dispute that these 725 contracts were in accordance with the bye laws of the Association as they stood at the date when the contracts were entered into.
The terms and conditions of forward contracts in cotton including "hedge contracts", and the manner of their implementation, were governed by the provisions contained in certain bye laws of the Association and of these that relevant to the consideration of the matters in this appeal was bye law 52AA which on the date when the appellants entered into their contracts ran as follows: "52 A.A. (1) whether or not the prices at which the cotton may be bought or sold are at any time controlled under the provisions of the Essential Commodities Act, 1055, if the Textile Commissioner with the concurrence of the Forward Markets Commission and after consultation with the Chairman (of the Board), be of opinion that the continuation of hedge trading is likely to result in a situation detrimental to the larger interests of the economy of India and so informs the Board, the Board shall forthwith cause a notice to be posted on the Notice Board to that effect and on the posting of such notice and notwithstanding anything to be contrary contained in these bye laws or in any hedge or on call contract made subject to these Bye laws, the following provisions shall take effect.
(2)Every hedge contract and every on call contract in so far as the cotton is uncalled thereunder or "in so far as the price has not been fixed thereunder entered into between a member and a member or between a member and a non member then outstanding shall be deemed closed out at such rate, appropriate to such contract as shall be fixed by the Textile Commissioner and the provisions 726 of Clauses (3), (4) and (6) of Bye laws 52A in so far as they apply to hedge and on call contracts, shall apply as if they formed part of this Bye law.
After the affixation of the said Notice on the Notice Board trading in hedge and on call contracts shall be prohibit ed until the Textile Commissioner with the concurrence of the Forward Markets Commission and after consultation with the Chairman, permits resumption".
Towards the end of 1955 the Chairman of the Association appears to have apprehended that the forward Market in cotton was heading for a crisis which was in part due to the transacting of unbridled option business, which though prohibited by the Act and also by the bye laws of the Association was ever the less indulged in on a large scale.
The hairman brought this situation to the notice of the members of the Board of the Association at a meeting held on December 16, 1955, and suggested that they should give serious thought to this vital problem.
It may be mentioned that the government also were anxiously considering the steps to the taken to solve or avert the crisis.
The action which the government took in this matter is reflected in a notification issued by them on December 23, 1955, by which in exercise of the powers conferred in them by section 14 of the Act they directed the Association to suspend its business in Indian cotton edge contracts for delivery in February 1956 and May 1956 for a period of 7 days with effect from the date of the notification.
The situation did not apparently improve as a result of this temporary suspension so that before the expiry of the work fortnight, action under the same provision was gain taken under a notification dated December 10, 1955, by which the period of 7 days was exten ded by a further period of 7 days i. e. till 6, 1.
56A meeting of the Board of Association was held on 727 January 6, 1956, i. e., the day on which the suspension of forward business expired when the following , resolution was unanimously passed: " 'In view of the suspension of forward trading by government the Board hereby resolves under bye law 52 that an emergency has arisen or exists and prohibits until further notice, subject to the concurrence of the Forward Markets Commission as from Saturday, the 7th January, 1956, trading in hedge contracts for February and May 1956, deliveries above a maximum rate of Rs. 700/ per candy Thereupon a suit (numbered as suit 2/1956) was filed by a member of the Association as representing himself and all other members, on the original side of the High Court, Bombay against the Association and its Board, challenging the validity of the notification of Government suspending forward trading, as also of the resolution of the 'Board, just now extracted.
An application for the grant of interim stay was made for restraining the Board from giving effect to its resolution but this was refused by the learned trial Judge and an appeal was filed against the refusal.
While things were in this state the Central Government, in exercise of the powers conferred on them by section 12 of the Act, made anew bye law which was published in a Gazette of India Extra.
ordinary dated January 21, 1956, in substitution of bye law 52 AA set out earlier.
The new bye law ran.
"152 AA (1) Whether or not prices at which cotton may be bought or sold are at any time controlled under the provisions of the , if the Forward Markets Commission is of the opinion 728 that continuation of trading in hedge contrac ts for any delivery or deliveries is detrimental to the.
interest of the trading or the public interest or to the larger interests of the economy of India and so notifies the Chairman, then notwithstanding anything to the contrary contained in these bye laws or in any hedge or on call contract made subject to these bylaws the following provisions shall take effect.
(2)Every hedge contract and every on call contract in so far as the cotton is uncalle d thereunder or in so far as the price has not been fixed thereunder and relating to the delivery or deliveries notified under clause (1) entered into between a member and a member or between a member and a non member then outstanding shall be deemed closed out at such rate appropriate to such contract and with effect from such date as shall be fixed by the Forward Markets Commission and the provisions of clauses (3), (4) and (0) of Byelaws 52 A in so far as they apply to hedge and on call contracts shall apply as if they formed part of this Bye law".
This bye law was communicated to the Board of the Association on January 23, 1956.
We might here state that the validity of this new bye law has been impugned on various grounds and the alleged invalidity of this We law serves as the main foundation for challenging the validity of the notification of the Forward Markets Commission issued under the powers conferred by it.
On January 24, 1956, the appeal from the order refusing the interim injunction in Suit No. 2 of 1956 was settled between the parties on , theme terms : "(1) The impugned resolution dated January 6, 1956, declared to be valid, 729 (2)The Board of Directors to meet on January 25, 1958, and consider under bye laws 52 (2) whether the rate of Rs. 700 fixed under the said resolution should continue or whether it should be waived. 'In considering the same the Board will apply its own mind and exercise its own judgment".
On the same day, i.e. January 24, 1956, the Forward Markets Commission took action under the powers vested in them under the new bye law 52 AA which had been made by government three days earlier.
By a communication addressed to the Chairman of the Association, the Commission stated : " 'In pursuance of cl.
(1) of the bye law 52AA of the Bye laws of the E.I.C.A. Ltd., Bombay I hereby notify to you that the For.
ward Markets Commission is of the opinion that continuation of trading in the hedge contracts for February and May 1956 delivery is detrimental to the interests of the trade and the public interest and the larger interest of the economy of India and fixed under cl.
(2) of the said bye law; that the rates prevailing at the time at which the trading in the said contracts closed On January 24, 1956, viz., Rs. 700/ for February and Rs. 686/8/ for May delivery as the rates at which and January 25, 1956 as the date with effect from which the hedge contracts and on call contracts in so far as the cotton is uncalled thereunder or in so far as the price has not been fixed thereunder relating to the said delivery shal l be deemed to be closed out".
Thereupon the three appellants who are partners carrying on business in cotton under the name and style of Indramani Pyarelal Co. moved the High Court of Bombay by a petition under article 226 of the Constitution on January 27, 1956, for a writ of mandamus or a direction in the nature of 730 mandamus against the members of the Forward Markets Commission who were individually impleaded as respondents to the petition, ordering them to cancel or withdraw the notification dated January 24, 1956, whose validity was impugned on various grounds.
The petition was heard by a learned single Judge who dismissed it by his order dated February 23, 1956.
An appeal was filed therefrom to a, Bench of the High Court and when this was also dismissed the petitioners moved for a certificate of fitness to appeal to this Court but the same having been rejected, they applied for.
and obtained special leave from this Court, and that is bow the matter is now before us.
The submissions of Mr. Pathak learned Counsel for the appellant in support of the appeal may be classified under three main heads : (1) The notification dated 24th January, 1956, served on the Board of the Association by the Forward Markets Commission was ultra vires for the reason that bye law 52AA, as amended by the Central Government on January 21, 1956, was invalid.
(2) Assuming the byelaw to be valid it could not operate retrospectively or be availed of retrospectively so as to affect rights under existing contracts subsisting on the day the amended bye law was notified in the Gazette but that it could if at all, be validly applied only to Forward hedge contracts entered into thereafter.
(3) The notification by the Forward Markets Commission was improper and malafide and was therefore invalid.
It would be convenient to deal with these points in that order : (1) The first of the points raised raises the question of the validity of bye law 52 AA as amended by the Central Government on January 21, 1956.
Learned Counsel divided his submission on this matter into two sub heads (a) that the Forward Markets Commission could not, on a proper construction of the Act, be validly vested 731 with the power with which it was clothed by the amended bye law, and (b) that it was beyond the power of the Association to have conferred the power which it purported to do under the amended bye law 52AA.
Put in other words, the objections were that the Forward Markets Commission could not, having regard to the terms of the statute under which it was created, be a proper recipient of the power 'with which it was vested by the bye law and secondly that the Association was in law incapable of conferring that power on the Forward Markets Commission or on any other body.
We shall first take up for consideration the argument that the Forward Markets Commission was in law incapable of being the recipient of the power conferred by the bye law under which it was empowered to issue the impugned notification.
For this purpose it is necessary to examine in detail the relevant provisions of the Act.
Section 2 (b) defines 'Commission ' as meaning "The Forward Markets Commission" established under section 3.
Section 3 (1) enacts : "3.
The Central Government may, by notification in the Official Gazette establish a Commission to be called the Forward Markets Commission for the purpose of exercising such functions and discharging such duties as may be assigned to the Commission by or under this Act.
" The point urged by learned Counsel was that the function or the duty cast upon it by the amended bye law 52 AA was not such as could be assigned to the Commission "by or under this Act." The meaning of the words by or under ' and the extent and nature of the duties assigned to the Commission by the Act will therefore require careful examination.
Section 4 relates to the functions of the Commission and it is the proper construction of this 732 section that has loomed large in the arguments on this point.
It is, therefore, necessary to set this out in full : "4.
The functions of the Commission shall be (a)to advise the Central Government in respect of the recognition of, or the withdrawal of recognition from any association or in resPect of any other matter arising out of the administration of this Act ; (b)to keep forward markets under observation and to draw the attention of the Central Government or of any other prescribed autho rity to any development taking place, in or in relation to, such markets which, in the opinion of the commission is of sufficient importance to deserve the attention of the Central Government and to make recommendations thereon ; (e)to collect and whenever the Commission thinks it necessary publish information regar ding the trading conditions in respect of goods to which any of the provisions of this Act is made applicable, including information regarding supply, demand and prices, and to submit to the Central Government periodical reports on the operation of this Act and on the working of forward markets relating to such goods ; (d)to make recommendations generally with a view to improving the Organisation and working of forward markets ; (e)to undertake the inspection of the accounts and other documents of any recognished association whenever it considers it necessary ; and 733 (f)to perform such other duties and exercise such other powers as may be assigned to the Commission by or under this Act, or as may be prescribed".
Pausing here it is necessary to add that the expression prescribed" found at the end of cl.
(f) has been defined by section 2(h) of the Act to mean "Prescribed by rules made under the Act".
Before considering the points urged as regards the construction of this section taken in conduction with the terms of s.3(1) we shall refer to a few other provisions which are of some relevance in the present context.
Section 3(2) which confers power on the Central Government to call for periodical returns from Recognised Associations and to direct such enquiries as they consider necessary to be made, empowers the government to direct the Commission to inspect the accounts and other documents of any recognised Association or of any of its members and submit its report thereon to the Central Government [vide section 3(2) (c)].
Sub section (4) of this section enacts : "8(4).
Every recognised association and every member thereof shall maintain such books of account and other documents as the Commission may specify and the books of account and other documents so specified shall be preserved for such period not exceeding three years as the Commission may specify and shall be subject to inspection at all reasonable times by the Commission".
Section 28 reads : "28.
(1) The Central Government may, by Notification in the Official Gazette, make rules for the purpose of carrying into effect the objects of this Act.
734 (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for (a) the terms and conditions of service of members of the Commission; (b) the manner in which applications for recognition may be made under section 5 and th e levy of fees in respect thereof ; (c) the manner in which any inquiry for the purpose of recognising any association may be made and the form in which recognition shall be granted ; (d) the particulars to be contained in the annual reports of recognised associations ; (e) the manner in which the bye laws to be made, amended or revised under this Act shall, before being so made, amended or revised be published for criticism ; (f) the constitution of the advisory commit.
tees established under section 26, the terms of office of and the manner of filling vacancies among members of the committee ; the interval within which meetings of the advisory committee may be held and the procedure to be followed at such meetings ; and the matters which may be referred by the Central Govern ment to the advisory committee for advice ; (g) any other matter which is to be or may be prescribed.
" The argument on this part of the case was briefly this : The Forward Markets Commission is a statutory body specially created for the purposes of the Act.
The powers which mat be conferred upon the Commission and the duties which it may be called on to discharge are therefore subject to the provisions of the Act.
No more power can be conferred upon this body than what the Act allows 735 and the power under the amended bye law 52AA is not one which is contemplated by the Act as conferable on it.
Section 4 defines the functions of the Commission under five general heads (a) to (e) with a residuary clause contained in cl.
The powers or duties dealt with in cls.
(a) to (e) are in their essence either recommendatory or advisory.
In the context therefore #,,the other" duties or ' ,other" powers which may be assigned to the Commission under cl.
(f) must be either ejuesdem generis with advisory or recommendatory powers or of a nature similar to those enumerated in the previous subclauses.
In support of these submissions learned Counsel invited our attention to several decisions in which ancillary powers which might be implied from the grant of certain express powers were referred to.
In particular it was submitted that the Court would not imply a power which it was not absolu tely necessary to effectuate on express grant or was need to prevent the nullification of an express power that was granted.
In our opinion, these decisions afford no assistance for resolving the controversy before us.
There is no question here of deducing an implied power from the grant of an express one.
What we are concerned with is the scope of an express power or rather whether the grant of the power conferred upon the Commission by the bye. law could be held to be a power which could be assigned to the Commission under cl.
So far as the terms of el, (f) are concerned, there is no limitation upon the nature of the power that might be conferred except, of course, that which might flow from its having to be one in relation to the regulation of forward trading in goods which the Act is designed to effectuate.
Any limitation therefore would have to be deduced from outside cl.(f) of section 4.
Taking each of the clauses (a) to (e), it is not possible to put them positively under one genus in order 736 that there might be scope for the application of the ejusdem generis rule of construction.
Negatively, no doubt it might be said that none of these five clauses confer an executive power such as has been vested in them by the amended bye law 52AA but this cannot be the foundation for attracting the rule of construction on which learned Counsel relies.
On the other hand, if there is no common positive thread running through cls.(a) to (e) such as would bring them under one genus and negatively they do not expressly include any administrative or executive functions, that itself might be a reason why the expression "other" occurring in cl.
(f) should receive the construction that it is intended to com prehend such a function.
Learned Counsel further suggested that even if the rule of ejusdem generis did not apply, the allied rule referred to at page 76 of the report of Western India Theatres Ltd. vs Municipal Corporation of Poona, that the matters expressly referred to might afford some indication of the kind and nature of the power, might be invoked, but we consider that, in the context, there is no scope for the application of this variant either.
What we are here concerned with is whether it is legally competent to vest a particular power in a statutory body, and in regard to this the proper rule of interpretation would be that unless the nature of the power is such as to be incompatible with the purpose for which the body is created, or unless the particular power is contra indicated by any specific provision of the enactment bringing the body into existence, any power which would further the provisions of the Act could be legally conferred on it.
Judged by this test it would be obvious that the power conferred by the bye law is one which could be validly vested in the Commission.
A more serious argument was advanced by learned Counsel based upon the submission that a 737 power conferred by a bye law framed under section 11 or 12 was not one that was conferred ""by or under the Act or as may be prescribed".
Learned Counsel is undoubtedly right in his submission that a power conferred by a bye law is not one conferred "by the Act", for in the context the expression "conferrod by the Act" would mean "conferred expressly or by necessary implication by the Act itself".
It is also common ground that a bye law framed under section II or 12 would not fall within the phraseology "as may be prescribed", for the "expression" 'Prescribed ' has been defined to mean " 'by rules under the Act", those framed under section 28 and a bye law is certainly not within that description.
The question therefore is whether a power conferred by a bye law could be held to be a power ",conferred under the Act".
The meaning of the word ",under the Act" is well known.
"By" an Act would mean by a provision directly enacted in the statute in question and which is gatherable from its express language or by necessary implication therefrom.
The words under the Act " would, in that context, signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done; in other words, by laws made by a subordinate law making authority which is empowered to do so by the parent Act.
This distinction is thus between what is directly done by the enactment and what is done indirectly by rule making authorities which are vested with powers in that behalf by the Act.
(vide Hubli Electricity Company Ltd. vs Province of Bombay, and Narayanaswami Naidu vs Krishna Murthi.
That in such a sense bye laws would be subordinate legislation " 'under the Act" is clear from terms of sections 11 and 12 themselves.
Section 11 (1) enacts: "11.
(1) Any recognised association may, subject to the previous approval of the Central (1) 76 I.A. 57, 66.
(2) I.L.R. , 547.
738 Government.
make bye laws for the regulation and control of forward contracts", and sub section
(2) enumerates the matters in respect of which bye laws might make provision.
Sub section
(3) refers to the bye laws as the se made under this section and the provisions of sub section
(4) puts this matter beyond doubt by enacting: "11 (4) Any bye laws made under this section shall be subject to such conditions in regard to previous publication as may be prescribed, and when approved by the Central Government, shall be published in the Gazette of India and also in the Official Gazette of State in which the principal office of the recognised association is situate ; Section 12 under which the impugned bye law was made states in sub section
(2) : "12 (2) where, in pursuance of this section, any bye laws have been made or amended, the bye laws so made or amended shall be published in the Gazette of India and also in the Official Gazette of the State in which the principal office of the recognized association is situate, and on the publication thereof in the Gazette of India the bye laws so made or amended shall have effect as if they had been made or amended by the recognised associations, and in sub section
(4): "12.
The making or the amendment or revision of any bye laws under this section shall in all cases be subject to the condition of previous publication", Having regard to these provisions it would not be 739 possible to contend that notwithstanding that the bye laws are rules made by an Association under section 11 or compulsorily made by the Central Government for the Association as its bye laws under section 18, they are not in either case Subordinate legislation under section 11 or 12 as the case may be, of the Act and they would therefore squarely fall within the words , under the Act" in s 4(f).
Indeed, we did not understand Mr. Pathak to dispute this proposition.
His contention however was that when cl.
(f) specifically made provision for powers conferred by "rules" by the employment of the pbrase "or as may be prescribed" and, so to speak, took the "rules" out of the reach of the words " 'under the Act" it must necessarily follow that every power confered by Subordinate law making body must be deemed to have been excepted from the content of that expression and that consequently in the Content the word ,, 'by the Act" should be held to mean ,,directly by the Act" i.e., by virtue of positive enactment, of the words "under the Act" should be held to be a reference to powers gatherable by necessary implication from the provisions of the Act.
As an instance learned Counsel referred us to the power of the Central Government to direct the Commission to inspect the accounts and other documents of any recognised association or of any of its members and submit its report thereon to the Central Government under section 8 (2)(c) and suggested that this would be a case of a power or duty which would be covered by the words "under the Act".
We find ourselves wholly unable co accept this.
If without the reference to the phrase "as may be prescribed" the words " 'under the Act" would comprehend powers which might be conferred under "bye laws" as well as those under "rules" we are unable to appreciate the line of reasoning by which powers conferred by bye laws have to be excluded, because of the specific reference to powers conferred by rules".
740 Undoubtedly, there is some little tautology in the use of the expression "as may be prescribed" after the comprehensive reference to the powers conferred "under the Act", but in order merely to avoid redundancy you cannot adopt a rule of construction which cuts down the amplitude of the words used except, of course to avoid the redundancy.
Thus the utmost that could be that though normally and in their ordinary signification the words ,under the Act" would include both "rules" framed under s.28 as well as "bye laws" under section 11 or 12, the reference to "rules" might be eliminated as tautlogous since they have been specifically provided by the words that follow.
But beyond that to claim that for the reason that it is redundant as to a part, the whole content of the words "under the Act" should be discarded, and the words "by the Act" should be read in a very restricted and, if one may add, in an unnatural sense as excluding a power confered by necessary implication, when such a power would squarely fall within the reach of these words would not, in our opinion, be any reasonable con struction of the provision We need only add that the construction we have reached of s.4 (f) is reinforood by the language of section 3 (1) which is free from the ambiguity created by the occurrence of the expression " 'as may be prescribed" in the former.
We have therefore no hesitation in holding that there was no incompetency in the Forward Markets Commission being the recipient of the power which was conferred upon them by bye law 52AA as amended.
The next part of the submission in relation to this matter was that it was not competent for the Association to have framed this bye law and that the powers of the Central Government under section 12 and of the Association under section 11 in regard to the framing of bye law being co extensive, the bye law framed was not competent to confer any power on the commission.
741 This contention was urged with reference to two considerations: (a) that a bye law of the type now in controversy was not within section II of the Act, and (b) that having regard to the provision contained in the Articles of Association of the Association the bye law was beyond the powers of the Association to frame.
These we should deal in that order.
The first objection naturally turns upon whe ther the bye law is one which could be comprehended with section 11 of the Act.
Its first sub section enacts; " 11 (1) any recognised association may, subject to the previous approval of the Central Government, make bye laws for the regulation and control of forward contract.
" That the impugned bye law is one for the regulation and control of forward contracts cannot be disputed, and the terms being very general would include a bye law of the type now impugned.
In this connection reference may be made to byelaw 52AA which the impugned bye law amended, under which power was vested in the Textile Commissioner with the concurrence of the Forward Markets Commission, (though after consultation with the Chairman of the Board) to direct the enclosure of hedge contracts and fix the rates at which such contracts might be closed out a provision whose validity was not impugned in the present proceedings.
Mr. Pathak no doubt submitted that he was not precluded from challenging before us even the earlier bye law for the purpose of sus taining his argument that the amended bye law was ultra vires.
Nevertheless it must be apparent that it was always assumed that bye laws which vest in authorities external to the Association the 742 power to interfere with forward dealing was within the scope of the bye law making powers under This general provision apart, sub section
(2) of section 11 enact: "11(2).
In particular, and without prejudice to the generality of the foregoing power, such bye laws may provide for (a). . . . . . (b). . . . . . (c). . . . . . (d)fixing, altering or postponing days for settlement; (e)determining and declaring market rates, including opening, closing, highest and lowest rates for goods; (f). . . . . (g). . . . . . . (h). . . . . . . (i). . . . . . . . (j). . . . . . . (k). . . . . . . . (1). . . . . . . . (m). . . . . . . . (n) the regulation of fluctuations in rates and prices; (o) the emergencies in trade which may arise and the exercise of powers in such eme regencies including the power to fix maximum prices; 743 As the power of the Central Government to make bye laws under section 12 is admittedly co extensive with the power of the Associations to frame byelaws, it is not necessary to refer to the terms of the latter sections Before considering in detail the argument on this part of the case we consider it useful to set out a few of the bye laws of the Association whose validity has not been challenged and which would show the manner in which the Association has been functioning in emergencies such as that for which the impugned bye law provides, Bye law 52 which still exists: "52.(1) If in the opinion of the Board an emergency has arised or exists, the Board may, by a resolution, (i) passed by a majority of not less than and (ii) confirmed prohibit, as from the date of such confirmation or from such later date as maybe fixed by the Board in the resolution referred to in sub clause (1), (a)trading in the Hedge Contract for any delivery or deliveries or (b) all trading in such contracts as are referred to in clause (a) for a specified period "52A.
If the Board, at a meeting specially convened in this behalf, resolve that a state of emergency exists or is likely to occur such as shall in the opinion of the Board make free trading in forward contracts extremely difficult, the Board shall so inform the Forward Markets Commission and upon the 744 Forward Markets Commission intimating to the Board its agreement with such resolution, then notwithstanding anything to the contrary contained in these bye laws or in any forward contract made subject to these Byelaws, the following provisions shall take effect (1)The Board shall at a meeting specially convened in this behalf, (a)fix a date for the purpose hereinafter contained, (b)fix settlement process for forward con tracts, (c)fix a special Settlement Day.
(2). . . Every hedge contract entered into between a member and a member or between a member and a non member outstanding on the date fixed under clause (1)(a) hereof shall be demand closed out at the rate appropriate to such contracts fixed under clause (1)(b) hereof.
" 3 6 and then follows Bye law 52AAA.
Apart for the amended bye law occurring in the group of existing bye laws making provision for emergencies to which sub clause (o)of s.11(2) refers, there is no dispute that there was an emergency in the forward market and that the impugned bye law was framed to meet such a contingency.
It was not contended before us that the method by which the emergency was resolved by the impugned bye law viz., by closing out subsisting contract was not the usual method employed for the purpose.
If therefore the bye law was provision for an emergency within s.11 (2)(o) then it would seem to follow that for the resolution of that emergency, 745 every one of the matters which could be included in such bye laws would be attracted to it, and so we find it impossible to accept Mr. Pathaks submission regarding the invalidity of the bye Law.
An analysis of the impugned bye law 52AA and comparison of it with that which it replaced would show that the main point of difference is that whereas formerly action to stop forward trading and for closing out contracts and to fix the rate at which contracts were to be closed out was vested in the Textile Commissioner, acting with the concurrence of the Forward Markets Commission, under the amended bye law the power is directly vested in the Forward Markets Commission itself.
The arguments addressed to us on this point are concerned not so much with the propriety as with the vires of a provisions by which the power to close out contracts by the issue of a notification is vested in the Commission.
Apart from an argument immediately to be noticed, we do not see how, if such a power could validly be conferred upon a Textile Commissioner or even exercised by the Board of the Association under a bye law framed under section 11, the same would be beyond the power to make bye laws under section 11 by the mere fact that the authority vested with the power is the Forward Markets Commission.
We are clearly of the opinion that bye law 52AA is well within the bye law making power under section 11 of the Act and therefore within 12.
It was then said that the amended bye law 52AA wag invalid as in violation of the Articles of Association of the Association being an impermissible delegation of the powers vested in the board of the Association by its Memorandum of Articles.
In this context Mr. Pathak placed reliance on cl. 64 of the Articles as laying down the limits within which 746 the Board might delegate their powers.
He contended that the conferment of the power to take action on the Forward Markets Commission was thus contrary to and inconsistent with the powers of the Association under this Article.
It would be seen that if learned Counsel is right, this would render invalid not merely bye law 52AA as now amended but even the bye law as it originally stood, but as already stated learned Counsel urged that he was not precluded from raising this contention.
This point was not raised in the Court below but having beard arguments on it we shall pronounce upon it.
We consider that there is no substance in this objection.
Article 64 on which reliance was placed runs in these terms: "The Board may delegate any of their powers, authorities and duties to committees consisting of such members or member, of their body or consisting of such other members or members Associate Members, Special Associate Members or Temporary Special Associate Members of the Association not being Directors, or partly of Directors and partly of such other members and/or Associate Members, Special Associate Members or Temporary Special Asso ciate Members as the Directors may think fit.
Any Committee so formed shall in the exercise of the powers so delegated conforms to any regulation that may from time to time be imposed on it by the Directors".
In so far as the Memorandum is concerned, its paragraph III states the objects for which the Association was established, as being, inter alia " " (e) To make from time to time bye laws for opening and closing of markets in cotton and the 747 times during which they shall open or closed; the making performance and determination the prohibition of specified classes of dealings and the time during which such prohibition shall operate; the provision of an dealing with 'Croners ' or ,Bear Raids ' in any and every kind of cotton and cotton transactions so as to prevent or stop or mitigate undue speculation inimical to the trade as a whole; the course of business between Original Members inter be or between any of them on the one hand, and their constituents on the other hand, the forms of contracts between them and their rights and liabilities to each other in respect of dealings in The Articles dealing with bye laws, the manner in which they are to be made as well as the subject to which they might relate is to be found in Articles 73 and 74.
The relevant portion of Article 73 runs: ""Under and in conformity with any Statutory provisions for the time being in force, the Board may pass and bring into effect such bye laws as may be considered in the interest of or conducive to the objects of the and Article 74 runs: "Without prejudice to the generality of the powers to make bye laws conferred by the Memorandum of Association and by these Articles and under or in the absence or any statute or statutes in force in that behalf, it is hereby expressly declared that the said powers to make, alter, add to, or rescined Bye laws including power to do so in regard to all or any of the following matters " Sub para (7) repeats inter alia the contents of 748 Paragraph III (e) of the Memorandum of Association which we have extracted, The entire argument of Mr. Pathak on Article 64 was based on the footing that the power to make a bye law was vested solely in the Board, because it is only the powers of the Board that are subject to the limitation imposed by Article 64.
If however the power to make a bye law was not confined to the Board but bye laws might be framed by the Association itself, the argument based on Article 64 would be seen to have no validity.
That the later is the true position is clear from Article 73 which reads: "The Board 's powers as aforesaid in relation to bye laws shall not derogate from the powers hereby conferred upon the Association who may also in the same way and for the same purpose from time to time pass and bring into effect new bye laws and rescind or alter or add to any existing bye law by resolution passed by a majority of two thirds at the least of the Members present and voting at the General Meeting previous to which at least fourteen day 's notice has been given that a Member intends at such meeting to propose the making of such bye law or the decision, alteration of or addition to a bye law or bye laws".
If therefore a bye law could be made, by the Association it is manifest that there is no limitation upon its powers such as is to be found in Article 64 which applies only to the Board.
The validity of the bye law therefore cannot be challenge by reference merely to the powers of the Board, because what is contemplated by section I I is the power of the "recognised Association" to frame the bye law.
We have therefore no hesitation in rejecting the contention that the bye law as framed contravenes the rules of the Association.
749 Mr. Pathak next contended that the impugned bye law was invalid because it operated retrospectively.
This argument he presented under two heads His first submission was that consistently with the rule that an, enactment 'would not be construed as.
retrospective unless the same were to have that effect by express language or by necessary intendment, the impugned bye law should, be held to affect and close out only those contracts which were entered into after the date on which the byelaw came into operation and that if he was right in this construction the impugned notification had gone beyond the powers conferred on the Commission by the new bye law.
We are wholly unable to accept this submission as to the construction of the bye law.
The first paragraph of the ])ye .law by its list words points out the consequence of a notification by the Forward Markets Commision.
It provides that if the Chairman were notiified that the continuation of trading in hedge contracts for any delivery etc.
"was detrimental to the interests of the general public or the larger interests of the economy of rndia," then, notwithstanding, anything to the contrary contained the bye laws of the Association or in any hedge etc.
contract the provisions contained in the second paragraph should have effect.
, If one had regard only to paragraph and nothing more there might be ' some room for a plausible argument that subsisting contracts were not to be affected, though the expression "notwithstanding anything to the contrary contained in any bedge etc.
contract" would undoubtedly militate against any such contention.
But such ambiguity if any is cleared by the provision in paragraph 2 which has effect on the notification under paragraph 1, for by express terms it refers to "every hedde contract" and "every on call contract" "in so far as cotton is uncalled thereunder or in so far as the pride has not been fixed thereunder".
This therefore places it beyond doubt that executory contracts 750 which were subsisting on the date of the notification were within its scope and were intended to be affected by it.
And this, if anything more needed, is made more certain by the I reference in parts (2) to the provisions of old.
(3), (4) and (6) of bye law 52A.
Bye law 62A deals with cases where the Board of the Association resolves repeat its terms "that a state of emergency exists or is likely to occur which makes free trading in forward con.
tracts difficult and on obtaining the concurrence of the Forward Markets Commission, then notwithstanding anything to the contrary contained in these Bye laws subject to these Bye laws.
The following provision %hall have effect "(1) The Board shall at a meeting specially convened in this behalf, (a)fixa date for the purposes herein.
after contained, (b)fix settlement prices for forward contracts, (c) fix a special Settlement Day.
" Clause (3) of bye law 52A runs : "52A (3) All differences arising out of every such contract between members shall be paid through the Clearing House on the Settlement Day fixed under clause (1) (c) her Clause (4) "52A (4) All differences arising out of every such contract between a member and a non member shall become immediately due and payable." and Clause (6) "52A (6 In hedge and on call contracts entered into between a member and a non.
member and in contracts to which clause (5) 751 applies, any margin received shall be adjusted and the whole or the balance thereof, as the case may be, shall be immediately refundable.
It is thus clear that the entire machinery for resolving emergencies such as is contemplated by byelaw 52A includes the suspension of forward businow together with the closing out of forward contracts of hedge and on call types whose volume or nature had led to the emergency.
It proceeds on the basis that the crisis could not be met unless subsisting contracts were closed out and, so to speak a new chapter begun.
That is the ratio underlying the combined effect of bye laws 52AA and 52 A and in view of this circumstance the argument that on a reasonable construction of the amended bye law it would apply to contracts to be entered into in future and not to subsisting contracts must be rejected.
If he was wrong in his argument that the byelaw on its proper construction did not affect subsisting contracts such as these of the Appellants, Mr. Pathak 's further submission was that the impugned bye law was invalid and ultra vires of the Act because it purported to operate retrospectively affecting vested rights under contracts which were subsisting on the day on which the bye law came into force.
Mr. Pathak invited our attention to a passage in Craies ' Statute Law, 5th Ed.
p. 366 reading: "Sometimes a statute, although not intended to he retrospective, will in fact have a retrospective operation.
For instance if two persons enter into a contract, and afterwards a statute is passed which, as Cockburn, C. J., said in Duke of Devonshire vs Barrow, etc.
, Co. , 289) "engrafts an enactment upon existing contracts ' and 752 thus operates so as to produce a result which is something quite different from the original intention of the contracting parties, such a statute has, in effect a retrospective operation.
" The bye law in so far as it affects executors contracts requiring such contracts to be closed out on a (lay not originally: contracted for and at a price fixed by law is in the above sense undoubtedly retrospective.
The submission of learned 'Counsel was that though a legislature which bad plenary power in this regard could enact a, havind a retrospective operation, Subordinate legislation, be it a rule, a bye law or a notification, could not be made so as to have retrospective operation and that to that extent the rule, bye law or notification would be ultra vires and would have to be struck down, relying for this position on the decision of the Mysore High Court reported in AIR 1960 Mys, 326. 'We do not however consider it necessary to canvass the correctness of this decision or the broad propositions laid down in it.
It is clear law that a Statute which could validly enact a law with retrospective effect could in express terms validly confer upon a rule making, authority a power to make a rule or frame a: bye law having retrospective operation and we would add that we did not understand Mr. Pathak to dispute this position.
If this were so the same result, would follow where the power to enact a rule or,a byelaw with "retrospective effect" so as to Affect PendinG transactions, is conferred not by express words but where the necessary intendment of I the Act confers such A power.
If in the present case the power to make a byelaw so as to operate on contracts subsisting on the day the same was framed, would follow as; a necessary implication from the term of section 1 1, it would not be necessary to discuss the larger question as to whether and the 753 circumstances in which Subordinate legislation with retrospective effect could be validly made.
Before proceeding further it is necessary to notice a submission that under the Act, far from there being a conferment of power to make a bye law, so as to affect rights under subsisting contracts, there was a contra indication of such a power being conferred.
In, this connection Mr. Pathak invited, our attention to the: terms of sections 16 and 17 and 19 of the Act under which the Act has itself made special provision for affecting rights such as those, if the appellants in the present case.
Detailing the conseqences of a notification under section 15, s.16 (a:) enacts "16 (a,,) Every forward contract for the sale or purchase of any goods specified in the notification, entered into before the date of the notification and remaining to be performed after the said, date and which is not in conformity with the provision of section 15, shall be deemed to be closed out at such rate as the Central Government may fix in this behalf.
S.17 (3) enacts "17.
(3) Where a notification has been issued under sub section (1), the provisions of section 16 shall, in the absence of anything to the contrary in the notification, apple to all forward contracts for the sale or purchase of any goods specified in the notification entered into before the date of the notification and remaining to be performed after the said date as they apply to all forward contracts for the sale or purchase, of any goods specified in the notification under section 15." and f 19 (2) runs: "19 (2).
Any option in good which has been entered into ' before the date on which 754 this section comes into force and which re mains to be performed, whether wholly or in part, after the said date shall, to that extent, becomes void.
" Based on these provisions the submission was that Act had made special provisions for retrospective operation of certain notifications so as to affect rights under subsisting contracts and that in cases where there was no such specific provision it was not intended that a bye law or a notification could have that effect.
We see no force in this argument.
The fact that the Act itself makes provision for subsisting contracts being affected, would in our opinion far from supporting the appellants indicate that in the context of a crisis in forward trading the closing out of contracts was a necessary method of exercising control and was the mechanism by which the enactment contemplated that normalcy could be restored and healthy trading resumed.
If therefore we eliminate the provisions in as. 16, 17 and 19 as not containing any indication that a power to frame a bye law with retrospective effect was withheld from the Association, the question whether such bye law making power was conferred has to be gathered from the terms of section II itself.
Thus considered we are clearly of the opinion that a power to frame a bye law for emergencies such as those for which a bye law like 52 AA is intended includes a power to frame one so as to affect subsisting contracts for resolving crisis in Forward Markets.
We have already referred to the terms of bye law 52A which shows that when an emergency of the type referred to a. It (2) (a) arises it is not practicable to rescue a forward market from a crisis without (1) putting an end to forward trading, and (2) closing out subsisting contracts so as to start with a clean slate for the 755 future.
When therefore under section 11 (2) power is conferred to frame a bye law to provide for: " (O) the emergencies in trade which may &rise and the exercise of power in such emergencies including the power to fix maximum and minimum prices;" & ad this is read in conunction with clause (g) reading: "regulating the entering into, making, per formance, rescission and termination of contra eta. . .
If It is manifest that the section contemplates the making of a bye law regulating the performance of contracts, the rescission and termination of contracts and this could obviously refer only to the bye law affeding rights under contracts which are subsisting on the day the action is taken.
It is therefore manifest that section 11 authorises the framing of a byelaw which would operate retrospectively in the sense that it affects rights of parties under subsisting contracts.
Finally it should be borne in mind is that ultimately what we are concerned in a. 1 1 of the Act is the power of the Association to frame the bye law ' for if the Association could validly frame such a bye law the Central Government could under section 12 have a similar power.
We did not hear any argument to establish that the Association had no such power.
There is one other aspect in which the same problem might be viewed and it is this : The contract entered into by the respondents purported to be one under the bye laws for the time being in force and any change in the bye laws therefore would in to be contemplated and provided for by the contract itself, so that it might not be correct to speak of the new bye law as affecting any accrued 756 rights under a contract.
For when those by laws were altered the changes would get incorporated into the contracts themselves, so as to afford no scope for the argument that there has been an infringement of a vested right.
In the view however which we have taken about the validity of the bye law on the ground that it was well within the terms of as. ' 'II and 12 we do not consider it necessary to pursue this aspect further or to rest our decision on it.
What remains to consider is the challenge to the notification based on the ground that it was vitiated by having been issued malafide.
The ground of malafides alleged was that the impugned notification was issued in order to prevent the Board of Directors of the Association.
from applying their minds and exercising their judgment which they were directed to do by the terms of the Consent Memo filed on which the appeal from the judgment in C.S. 2 of 1956 was disposed of on January 24, 195 .
To the allegation made in this form in the petition the first respondent, the, Chairman: of the Forward Markets Commission, filed an affidavit in the course of which he pointed out that the continuance of trading in futures was in the circumstances then prevailing in the market detrimental to the interests of the trade and that a conclusion on this matter had,been reached by the Commission even before by law 52 AA was amended, that the question of closing out existing contracts was engaging the attention of even the Board of the Association from as early as the beginning of January 1956 and it was for the purpose of enabling the Commission to take action to set right matters that bye law 52AA was amended and that immediately the amended bye law came into force the Commission took action and issued: the notification now manugned.
He also pointed out that the liberty given to the Association to consider the matter 757 under ' the terms of the Compromise Memo was a factor which had also boon taken into account before the notification had been issued.
The learned Judges of the High Court accepted this explanation of the circumstances in which the notification came to be issued and considered that on the allegation in the petition no mala fides could be inferred.
We are in entire agreement with the learned Judges of the High Court on this point.
No personal motive or mala fided in that sense has been attributed to the members of the Commission and in these circumstances we consider that there is no basis for impugning the notification on the ground that it was not issued bonafide.
This completes all the points urged by the learned Counsel for the appellants.
We consider that there is no merit in the appeal which fails and is dismissed with costs.
SUBBA RAO, J.
I regret my inability to agree with the judgment prepared by my learned brother Rajagopala Ayyangar, J.
As the fact, ; have been fully stated in the judgment of my learned brother, I need not repeat them except to the extent necessary to appreciate the two points on which I propose to express my opinion.
The appellants carry on business in cotton under, the name and style of Indramani Pyarelal Gupta & Co. The said firm is a member of the East India Cotton Association Limited, which is a recognized Association within the meaning of the Forward Contracts (Regulation) Act, 1952, hereinafter called "the Act".
The Association has been formed for the purpose of, inter alia, promoting and regulating trade in cotton and providing a cotton Exchange and a Clearing House.
Under the Act a formed by the Central Government and respondent is its man and respondents 2 and 3 are its Members.
758 Prior to January 21, 1956, on behalf of themselves and their constituents, the appellants entered into hedge contracts in cotton for February 1956 and May, 1956 Settlements with other members of the Association in accordance with its bye laws.
When the said contracts were effected, bye law 52 AA ran as follows : "(I) Whether or not the prices at which cotton may be bought or sold are at any time controlled under the provisions of the , if the Textile Commissioner with the concurrence of the Forward Markets Commission and after consultation with the Chairman, be of opinion that the continuation of hedge trading is likely to result in a situation detrimental to the larger interests of the economy of India and so informs the Board, the Board shall forthwith cause a notice to be posted on the Notice Board to that effect and on the posting of such notice and notwithstanding anything to the contrary contained in these Bye laws or in any hedge or on call contract made subject to these Bye law, the following provision shall take effect.
(2)Every hedge contract and every on call contract in so far as the cotton is uncalled thereunder, or in so far as the price has not been fixed thereunder, entered into between a member and a member or between a member and a non member then outstanding shall be deemed closed out at such rate, appropriate to such contract, as shall be fixed by the Textile Commissioner and the provisions of clauses (3), (4) and (6) of Bye law 52 A, in so far as they apply to hedge and on call contracts shallapply as if the formed part of this Bye law.
After the affixation of the said notice onthe Notice Board, trading in hedge 759 and on call contracts shall be prohibited until the Textile Commissioner with the concurrence of the Forward Markets Commission and after consultation with the Chairman, permits resumption".
On January 21, 1956, the Central Government, in exercise of power conferred upon it by sub section
(1) of section 12 of the Act, notified a new bye law 52 AA to be substituted in place of the earlier bye law 52 AA.
The new bye law reads as follows : "(1) Whether or not prices at which cotton may be bought or sold are at any time controlled under the provisions of the , if the Forward Markets Commission is of the opinion that continuation of trading in hedge contract for any delivery or deliveries is detrimental to the interest of the trading or the public interest or the larger interests of the economy of India and so notified the Chairman, then notwithstanding anything to the contrary contained in these Bye laws or in any hedge or on call contract made subject to these Bye laws the following provisions shall take effect.
(2) Every hedge contract and every on call contract in so far as cotton is uncalled thereunder and relating to the delivery or deliveries notified under clause (1) entered into between a member and a member or between a member and non member then outstanding shall be deemed closed out at such rate appropriate to such contract and with effect from such date as shall be fixed by the Forward Markets Commission and the provisions of Clauses (3), (4) and (6) of Bye law 52A in so far as they apply to hedge and on call contract" shall apply as if they formed part of this Bye law." 760 On January 24, 1956, the Forward Markets Commission, in exercise of the power conferred on it under the new bye law, issued a notification closing out all contracts of February 1956 and May 1956 Settlements at the rates mentioned in the said notification.
The, petition for a writ of mandamus filed by the appellants in the High Court of Judi cature at Bombay for ordering the respondents to cancel or withdraw the said notification dated January 24, 1956, was dismissed in the first instance by Coyajee, J., and, the appeal preferred against the judgment of Coyajee, J., was also dismissed by a division Bench consisting of Chagla, C.J., and Tendolkar, T. Hence the appeal.
I purpose, as I have already indicated, to consider the following two questions, as in the view I will be taking on those questions, the appeal will have to be allowed, and no other question, therefore, will arise for consideration.
The said questions are : (1) Whether under section 12 (i) of the Act the Central Government.
has power to make a bye law with retropective effect; and (21 whether under section 4 (f) of the Act, the Forward Markets Commission can exercise a, power assigned to it under a bye law made by the Government under section 12 of the Act.
Before considering the scope of the power of the Central Government under section 12 (1) of the Act, it is necessary to consider whether the new byelaw notified on January 21, 1956, has retrospective There are material differences between the old bye law 52 AA and the new one substituted in its place Under the now bye law the important provision is that all hedge Contracts outstainding at the time it came into force shall be deemed to be closed out at such rates as shall be fixed by the Textile Commissioner.
Whereas under the old by law the, Textile Commissioner had to form his opinion with the concurrence of the Forward Markets Commission and after consultation with 761 the Chairman, under the new bye law the said power of forming an opinion is conferred solely on the For ward Markets Commission where as under the old, bye law the opinion and was in regard to the question whether hedge trading was likely to result in a situation detrimental 'to the larger interests of the economy of; India under the new bye law the opinion is in respect of the question whether the continuation of trading in hedge contracts will be detrimental to the interests of trading or the public interest or the larger interests of the economy of India.
While under the old byelaw the question to he considered was in regard to hedge trading as such, under the new bye law it is in respect of the continuation of trading in hedge contracts for any delivery or deliveries.
While under the old bye, law the, said opinion was Communicated to the Board for action, under the new bye law it is notified to the Chairman.
While under the old bye law trading, in hedge and on call contracts could be resumed if the Textile Commissioner, with the concurrence of the Forward Markets Commission and after consultation with the Chairman, permitted the resumption, under the now bye law the said provision for resumption is omitted.
It is, therefore, manifest that the power of closing out a contract under the new bye law differs from that Under the old bye law in respect of the purpose of closing out, the authority empowered to order the close out and the consequences of such closing out.
It is idle to contend that the new bye law makes only inconsequential changes in the old bye law.
The new bye law operates upon an important term of a contract entered into before it came into force, namely, the mode of performance: it carries oil its face the vice of retroactivity.
In Craies on Statutes, 5th Edn '.
p, 366, the following passage appropriate to the question now raised is found.
762 renders the performance of a contract impo ssible, the rule of law is that the contract to frustrated by supervening impossibility, consequently in this case also the statute operates retrospectively.
" The learned author proceeds to state at p. 367: "The principle of this case has been applied in later cases to contracts the performance of which in manner contemplated by the parties has been rendered impossible by reason of some change in the law.
" It is, therefore, clear that the said bye law, in so far as it purports to effect the mode of performance of the preexisting contracts, is certainly retrospective in operation.
I am assuming for the purpose of the present question that the bye law cannot be construed in such a way as to confine its operation only to contracts that are entered into after it came into force.
If so, the question arises whether the Central Government had power to make a bye law under section 12 (1) of the Act with retrospective effect Section 12 (1) of the Act reads "The Central Government may, either on a request in writing received by it in this behalf from the governing body of a recognized association, or if in its opinion it is expedient so to do, make bye laws for all or any of the matters specified in section II or amend any bye laws made by such association under that section. ' Section 11 enumerates the matters in respect of which the recognized associations can make bye. laws for the regulation and control of forward contracts.
Neither section 12 nor a. 11 expressly states that a bye law with retrospective operation can be made under either of those two sections.
Full effect 763 can be given to both the sections by recognizing a power only to make bye laws prospective in operation, that is, bye laws that would not affect any vested rights.
In the circumstances, can it be held that the Central Government to which the power to make bye laws is delegated by the Legislature without expressly conferring on it a power to give them retrospective operation can exercise a power thereunder to make such bye laws.
Learned counsel for the respondents contends that, as the Legislature can make a law with retrospective operation, so too a delegated authority can make a bye law with the same effect.
This argument ignores the essential distinction between a Legislature functioning in exercise of the powers conferred on it under the Constitution and a body entrusted by the said Legislature with power to make subordinate Legislation.
In the case of the Legislature, article 246 of the Constitution confers a plenary power of Legislation subject to the limitations mentioned therein and in other provisions of the Constitution in respect of appropriate entries in the Seventh Schedule.
This Court, in Union of India vs Madan Gopal Kabra (1), held that the Legislature can always Legislate retrospectively; unless there is any prohibition under the Constitution which has created it.
But the same rule cannot obviously be applied to the Central Government exercising delegated Legislative power for the scope of their power is not co extensive with that of Parliament.
This distinction is clearly brought out by the learned Judges of the Allahabad High Court in Modi Food Products Ltd. vs Commission of sales Tax, U. P. (2), wherein the learned Judges observed: "A Legislature can certainly give retrosp ective effect to pieces of Legislation passed by it but an executive Government exercising subordinate and delegated legislative (1) ; (2) A. T. R. 1956 All.
764 powers, cannot make legislation retrospective in effect unless that power is expressly conferred." In Strawboard Manufacturing Co. Ltd. vs Gutta Mill Workers Union (1) a question arose whether the Governor of U. P., who referred an industrial dispute to a person nominated by him with a direction that he should submit the award not later than a particular date could extend the date for a making of the award so as to validate the award made after the prescribed date.
Reliance was placed upon section 21 of the U. P. General Clauses Act, 1904, in support of the contention that the power of amendment and modification conferred on the State Government under that section might be so exercised as to have retrospective operation.
In rejecting that contention, Das, J., as he then was, observed : "It is true that the order of April 26, 1950, does not ex facie purport to modify the order of February 18, 1950, but, in view of the absence of any distinct provision in section 21 that the power of amendment and modification conferred on the State Government may be so exercised as to have retrospective operation the order of April 26, 1950, viewed merely as an order of amendment or modification cannot, by virtue of section 21, have that effect." This decision is, therefore, an authority for the position that unless a statute confers on the Government an express power to make an order with retrospective effect, it cannot exercise such a power.
The Mysore High Court in a considered judgment in India Sugar & Refineries Ltd. vs State of Mysore (2) dealt with the question that now arises for consideration.
There, the Government issued (1) ; 447 448.
(2) A. 1.
R. 1960 Mys.
3 765 there notifications dated 9 4 1956, 15 10 1957 and 13 2 1958 purporting to act under section 14 (1) of the Madras Sugar Factories Control Act, 1949, whereby cess was imposed on sugarcane brought and crushed in Petitioner 's factory for the crushing season 1955.
56, 1956 57 and 1957 58 respectively.
One of the question raised was whether under the said section the Government had power to issue the notifications imposing a cess on sugarcane brought and crushed in petitioner 's factory for a period prior to the date of the said notifications.
Das Gupta, C. J., deliver ing the judgment of the division Bench, held that it could not.
The learned Advocate General, who appeared for the State, argued, as it is now argued before us, that in a case where power to make rules is conferred on the Government and if the provision conferring such a power does not expressly prohibit the making of rules with retrospective operation, the Government in exercise of that power can make rules with retrospective operation.
In rejecting that argument, the learned Chief Justice, delivering the judgement of the division Bench, observed at p. 332: "In my opinion a different principle would apply to the case of an executive Government exercising subordinate and delegated legislative powers.
In such oases, unless the power to act retrospectively is expressly conferred by the Legislature on the Government, the Government cannot act retrospectively.
" With respect, I entirely agree with the said observations.
The same question was again raised and the same view was expressed by the Kerala High Court in C. W. Motor Service (P) Ltd. vs State of Kerala (1).
There the Regional Transport Authority, Kozhikode, granted a stage carriage permit to the third respondent therein in respect of a proposed (1) A. 1.
R. (195) Ker.
347, 348.
766 Ghat route.
The grant of the permit was challenged on the ground that when that order was passed there was no constituted Regional Transport Authority for the district.
It was contended on behalf of the contesting respondent that the said defect was cured by a subsequent notification issued by the Government whereby Government ordered the continuance of the Road Transport Authority from the date of the expiry of the term of the said 'Authority till its successor was appointed.
The High Court held that the notification with retrospective operation was bad.
In that context, Varadaraja lyengar, J., observed : "The rule is well settled that even in a case where the executive Government acts as a delegate of a legislative authority, it has no plenary power to provide for retrospective operation unless and until that power is expressly conferred by the parent enactment." The House of Lords in Howell vs Folmouth Boat Construction Co. Ltd. (1) expressed the same opinion and also pointed cut the danger of conceding such a power to a delegated authority.
There, a licence was issued to operate retrospectively and to cover works already done under the oral sanction of the authority.
Their Lordships observed: "It would be a dangerous power to place in the hands of Ministers; and their subordinate officials to allow them, when.
ever they had power to license, to grant the licence ex post facto; and a statutory power to license should not be construed as a power to authorise or ratify what has been done unless the special terms of the statutory provisions clearly warrant the construction.
" It is true that this is a case of a licence issued by an (1) 767 authority in exercise of a statutory power conferred on it, but the same principle must apply to a byelaw made by an authority in exercise of a power conferred under a statute.
Our Constitution promises to usher in a welfare State.
It involves conferment of powers of subordinate legislation on government and governmental agencies affecting every aspect of human activity.
The regulatory process is fast becoming an ubiquitouselement in our life.
In a welfare State, perhaps,it is inevitable, for the simple reason that Parliament or Legislature cannot be expected to provide for all possible contingencies.
But there is no effective machinery to control the rule making powers, or to prevent its diversion through authoritarian channels.
If the conferment of power to make delegated Legislation proportion vigor carried with it to make a rule or bye law with retrospective operation, it may become an instrument of oppression.
In these circumstances, it has been rightly held that the provision conferring such a power must be strictly construed and unless a statute expressly confers a powers to make a rule or bye law retrospectively, it must be held that it has not conferred any such power.
It is said that such a strict construction may prevent a rule making authority from making a rule in an emergency, though the occasion demands or justifies a rule with retrospective effect.
The simple answer to this alleged difficulty is that if the Legislature contemplates or visualizes such emergencies, calling for the making of such rules or bylaws with retrospective effect, it should expressly confer such power.
It is also said that the Government can be relied upon to make such rules only on appropriate occasions.
This Court cannot recognize implied powers pregnant with potentialities for mischief on such assumptions.
That apart, the scope or ambit of a rule cannot be made to depend upon the status of a functionary entrusted with a 768 rule making power.
In public interest the least the court can do is to construe provisions conferring such a power strictly and to confine its scope to that clearly expressed therein.
Applying that rule of strict construction, I would hold that section 12 (1) does not confer a power on the Central Government to make a bye law with retrospective effect and, therefore, the new bye law made on January 21, 1956, in so far as it purports to operate retrospectively is invalid.
Assuming that it is permissible to infer such a power by necessary implication, can it be said that it is possible to so imply under section 12 of the Act ? The phrase "necessary implication", as applied in the law of statutory construction means an implication that is absolutely necessary and unavoidable; that is to say, a court must come to the conclusion that unless such an implication is made, the provisions of the section could not be given full effect on the wording as expressed therein.
Under section 12 of the Act, the Central Government may either on a request in writing received by it from the governing body of a recognized association, or if in its opinion it is expedient so to do, make byelaws for all or any of the matters specified in section 11 or amend any bye law made by such association under that section.
Now section 11 says that any recognized association may, subject to the previous approval of the Central Government, make bye laws for the regulation and control of forward contracts; under sub a. (2) thereof, the association is authorized to make laws providing for any of the matters mentioned therein.
A glance at those matters shows that all the bye laws providing for those matters could be framed without giving section 12 any retrospective effect.
It is said that section II (o) gives an indication that a bye law contemplated by that sub clause must necessarily provide for its retrospective operation.
It reads: 769 "the emergencies in trade which may arise and the exercise of powers in such emergencies including the power to fix maximum and minimum prices;" The learned Solicitor General contends that an occasion may arise when by a determined action of a "bear" or a "bull" the rates may about up beyond a reasonable level or fall down steeply below a particular point creating an emergency in the market and in that emergency it would be necessary for the authorities concerned to step in and close out the contracts, and unless the bye law is made retrospective such an emergency cannot be met and, therefore, the power to make a by law to meet an emergency contemplated in section 11(o) of the Act must necessarily imply a power to make a bye law retrospectively.
There is an underlying fallacy in this argument.
The conferment of a power on the Government to make a bye law with retrospective operation must be abso lutely necessary and unavoidable to provide for the matter mentioned in sub cl.
(o) of section 11 or any other clause of sub section
(2) of section 11.
A bye law could certainly be made to provide for an emergency visualized by the learned Solicitor General or for any other emergency contemplated by that clause with only prospective operation.
It cannot, there fore, be said that unless retrospective operation was given to the provisions of section 12, the objects of the legislation would be defeated or the purposes for which the power was conferred could not be fulfilled.
therefore, hold that section 12(1) of the Act does not confer any such power on the Central Government by necessary implication.
The second question turns upon the interpretation of a. 4 of the Act.
It reads: "The function of the Commission shall be (a) to advise the Central Government in.
770 respect of the recognition of, or the with drawal of recognition from, any association or in respect of any other matter arising out of the administration of this Act; (b) to keep forward markets under observa tion and to take such action in relation to them as it may consider necessary, in exercise of the powers assigned to it by or under this Act; (c) to collect and whenever the Commission thinks it necessary publish information regarding the trading conditions in respect of goods to which any of the provisions of this Act is made applicable, including information regarding supply, demand and prices, and to submit to the Central Government periodical reports on the operation of this Act and on the working of forward markets relating to such goods; (d) to make recommendation generally with a view to improving the Organisation and working of forward markets; (e) to undertake the inspection of the acco unts and other documents of any recognized association or registered association or any member of such association when.
ever it considers it necessary; and (f) to perform such other duties and exercise such other powers as may be assigned to the Commission by or under this Act, or as may be prescribed.
" Two questions arise under this section, namely, (i) whether the duties imposed and the powers conferred on the Commission under cl.
(f) of section 4 shall 771 be read ejusdem generis with those imposed or conferred under cls.
(a) to (e), and (ii) whether the powers assigned to the Commission by or under a bye law can be performed by the Commission under cl.
To appreciate the first question it would be necessary to know the constitution of the Commission and its rule in the scheme of control pro vided by the Act.
Under a. 2(b), ",Commission ' means the Forward Markets Commission established under section 3.
Section 3 empowers the Central Government to "establish a Commission to be called the Forward Markets Commission for the purpose of exercising such functions and discharging such duties as may be assigned to the Commission by or under this Act".
Clauses (a) to (e) of section 4 show that the function of the Commission are wholly supervisory and advisory in nature.
It keeps the forward markets under observation, collects and publishes information, undertakes the inspection of the accounts and other documents, and makes recommendations to the Central Government in respect of matters mentioned in that section.
Under section 8(2)(c), the Central Government may also direct the Commission to inspect the accounts and other documents of any recognized association or any of its member,% and submit its report thereon to the Central Government.
It is, therefore, manifest that the Commission has no administrative functions or powers of management or powers of interference in the internal management of the registered associations on the other hand, section 11 and the bye laws framed thereunder it is not necessary to go into them in detail show that the regulation and control of the business of forward contracts and other businesses is entirely in the hands of the Association.
The doctrine of ejusdem generis is very well settled.
The expression of ejusdem generis" means of the same kind ', and "it is only an illustration of specific application of the broader maxim noscuntur a sociia i. e., general and specific 772 words which are capable of an analogous meaning, being associated together, take colour from each other, so that the general words are restricted to a sense, analogous, to the less general".
While to invoke the application of the doctrine of ejusdem generis there must be a distinct genus or category.
, that is to say, the specific words preceding the general word must belong to the same class, the maxim noscuntur a sociis is of wider application.
This Court in The Western India The acres Ltd. vs Municipal Corporation of the City of Poona, though did not expressly say so, in my view was dealing with the said two doctrines, and it observed therein: ". . . although the rule of construction based on the principle of ejusdem generis cannot be invoked in this case, for items (i) to (x) do not, strictly speaking, belong to the same genus, but they do indicate, to our mind the kind and nature of tax which the municipalties are authorized to impose." So, in the present case, it way be said that cls.
(a) to (f) may not belong to the same class, but they indicate that the functions described in the said clauses, being supervisory and advisory in character, are so analogous to each other that they take colour from each other and therefore the general words following must be restricted to a sense ana logous to the said functions.
It is said that cl.(f) provides for duties and powers, whereas cls.
(a) to (e) only deal with functions and, therefore, cl.
(f) must be deemed to provide for altogether a different subject matter.
I cannot agree with this contention, for the heading of s.4 is "Function of the Commission", and the action opens out with the words "The functions of the Commission shall be" and the functions are mentioned in cls.
(&) to 773 (f).
It is, therefore, manifest that the duties and powers mentioned in cl.(f) are also functions.
To put it differently, all the clauses deal with functions of the Commission.
That apart, a power and a duty are, the two facts of the same concept.
Clauses (a) to (e) also, though ex facto they read as if they impose only duties, on a closer scrutiny indicate that the duties cannot be exercised without the corresponding powers for the discharge of those duties.
I would, therefore, hold that the duties and powers that may be assigned to the Commission under cl.
(f) can be only supervisory or advisory functions other than those mentioned in cls.(a) to (e).
The power conferred on the Commission under the bye law made by the Government to close out contracts and thus terminate the contracts is neither an advisory nor a supervisory power, and, therefore, the Commission cannot legally exercise the same.
The second question turns upon the interpretation of the provisions of cl.
(f) of s.4.
The said clause reads: "to perform such duties and exercise such other powers as may be assigned to the Commission by or under this Act, or as may be prescribed.
" The crucial words are ,by or under this Act, or as may be prescribed".
Under section 2(h) of the Act "Prescribed" means "prescribed by rules made under this Act" ; an( a. 2 (k) defines "rules" thus ; "rules", with reference to the rules relating in general to the constitution and managemen t of an association, includes in the case of an incorporated association its memorandum and articles of association.
" If read with the definition of the word "Prescribed" 774 cl.
(f) indicates that the commission can perform the functions assigned to it by or under the Act, or as may be prescribed by the rules made under the Act.
The specific mention of the rules made under the Act in the clause makes it abundantly clear that the phrase " 'under the Act" excludes a rule made in exercise of the power conferred under the Act, for if the said phrase takes in a rule, the word "Prescribed" becomes redundant.
Such ineptitude and went of precision in drafting shall not be attributed to the Legislature, except for compelling reasons.
If a rule was not comprehended by the phrase "Under the Act", it would be illogical to hold that it would take in a bye law.
It would mean that the Legislature specially provided for a rule, which has certainly a higher status than a bye law in legislative practice, while it treated a bye law as a provision of Act: that cannot be.
The other reason that may be suggested is that the word "Prescribed" was used in superabundant caution or by mistake.
If superabundant caution was required to mention separately the rules, greater caution would have been necessary to provide separately for a bye law.
A court ordinarily shall attempt to give meaning to every word used by the Legislature, unless it is impossible to do so.
Here there is not only no such impossibility, but there is also a good reason for the Legislature in excluding the bye laws from the operation of cl.(f) of section 4 of the Act.
Subordinate or delegated legislation takes different forms.
Subordinate legislation is divided into two main classes, namely, (i) statutory rules, and (ii) bye laws or regulations made, (a) by authorities concerned with local government, and (b) by persons, societies, or corporations.
The Act itself recognizes this distinction and provides both for making of the rules as well as bye laws.
A comparative study of sections 11 and 12 whereunder 775 power is conferred on the Central Government and the recognized associations to make bye laws on the one hand, and section 28, whereunder the Central Government is empowered to make rules on the other, indicate that the former are intended for conducting the business of the association and the letter for the purpose of carrying into effect the objects of the Act.
In considering the question raised in this case in this distinction will have to be borne in mind.
It would be unreasonable to assume that a private association, though registered under the Act, could confer powers on a statutory authority ,under the Act.
That is why under section 4(f), the Legislature did not think fit to provide for the assignment of a function to the commission in exercise of a power under a bye law.
The nonmention of bye law in cl.
(f) is not because of any accidental omission but a deliberate one, because of the incongruity of an assignment of a function to the Commission under a bye law.
I would, therefore, construe the words "by or under this Act, or as may be prescribed" as follows : (by this Act" applies to powers assigned proportion vigor by the provisions of the Act ; 'under this Act" applies to an assignment made in exercise of an express power conferred under the provisions of the Act; and 'may be prescribed" takes in an assignment made in exercise of a power conferred under a rule.
This construction gives a natural meaning to the plain words used in the section and avoids stretching, the language of a statutory provision to save an illegal bye law.
In this context two decisions are cited at the Bar.
The first is that of the Judicial Committee in Hubli Electricity Company Ltd. vs Province of Bombay (1).
There, under section 3(2)(f) of the Indian Electricity Act (No. TX of 1910) "the provisions contained in (1)(1948) 26 I.A. 57. 776 the Schedule shall be deemed to be incorporated with, and to form part of, every licence granted under this Part".
Under section 4(1)(a) of the said Act, ",The Provincial Government may, if in its opinion the public interest so requires, revoke a licence", inter alia, if "the licensee in the opinion of the Provincial Government makes wailful and unreasonably prolonged default in doing anything required of him by or under this Act".
Under sub cl.
(6) of the Schedule, a licensee had to comply with certain conditions.
The Government revoked the licence on the ground that the licensee did not comply with the conditions laid down in Schedule VI, which were deemed to be incorporated in the licence by virtue of section 3(2), and therefore he did not do the thing required of him within the meaning of section 4 of that Act.
The Privy Council held that the performance by the licensee of the conditions of the Schedule to the Act was clearly required to be made under the Act.
This decision does not help us very much in the present case, as the question of bye law did not arise therein '.
Nor the decision of the Madras High Court in Narayanaswamy vs Krishnamurthi (1) is of any assistance.
There the question was whether the regulations framed by the Life Insurance Corporation by virtue of the powers vested in it by Act 31 of 1956 prohibiting the employees from standing for election fell within the meaning of the words ,under any law" in article 191 (1) (e) of the Constitution.
The High Court held that the regulations were law made under the Act of Parliament.
The conclusion was based on the principle that the rule made in pursuance of the delegated power has the same validity and has the same characteristic as a law made directly by the Parliament.
Apart from the fact that the words to be construed there were different and in a sense wider than the words to be construed in the present case, the principle accepted in the decision is only (1) I.L.R. 777 of a general application and does not help to construe the specific words of cl.
(f) of section 4 ; their meaning can be gathered only by interpreting the said words, having regard to the setting and the context in which they are used.
For the foregoing reasons, I would hold that the Government had no power under section 12 of the Act to make a bye law assigning any function to the Commission.
It follows that notification dated January 24, 1956, by the Forward Markets Commission was illegal and the appellants would be entitled to the issue of a writ of mandamus in the terms prayed for.
In the result, the appeal is allowed with costs.
ORDER In view of the Judgment of the majority, the appeal stands dismissed with costs.
| Acting under section 38 (1) (f) of the C. P. Municipalities Act 1922, the Provincial Government, with the sanction of the Government of India, transferred certain Nazul Lands to the Municipal Committee to be used for the purposes of a garden.
The 1922 Act was repealed by the City of Jabalpur Corporat ion Act, 1948, which replaced the Municipal Committee by the Jabalpur Corporation.
Under section 81 of the Corporation Act the State Government issued a notification notifying that a portion of this land needed for making a road stood divested from the Corporation.
The Corporation filed a writ petition before the High Court challenging the notification.
On a concession made by the counsel for the State that the transfer of the land had been made by the Central Government the High Court held that the notification could not be sustained under section 81 which was applicable only to transfers made by the State Government But the High Court sustained the notification under section 38 of the repealed 1922 Act, relying upon the saving in section 3 (1) of the Corporation Act.
Held, that the transfer of the land in fact had been made by the State (Provincial) Government and the notification was fully justified by the provisions of section 81 of the Corporation Act.
There was no basis on which the High Court could have based its assumption that the transfer was by the Central Government.
The allegations in the writ petition proceeded on the basis that the transfer was by the State Government.
On the pleadings the appellant ought not to have been permitted to put forward a case that the State Government was not the transferor of the property.
To confine a party to his pleadings particularly in respect of facts, is dictated not merely by the need for orderliness but for avoiding surprise to the other party.
Save in exceptional cases, parties should be held strictly to their pleadings, and if there is need to amend them, the Court should insist on formal amendments being affected.
136 in the present case, on the terms of the order transferring the land it was clear that the transfer was made by the Provincial Government.
|
Appeal No. 162 of 1952.
Appeal from the Judgment and Order dated the 7th day of June, 1951, of the High Court of Judicature at Calcutta in Income tax Reference No. 60 of 1950 arising out of the Order dated the 22nd day of November, 1949, of the Income tax Appellate Tribunal in I.T.A. Nos. 1026 and 1027 of 1948 49 N. C. Chatterjee for the appellant.
Porus A. Mehta for the respondent.
November, 11.
The Judgment of the Court was delivered by, BHAGWATI J.
This appeal from the judgment And order of the High Court of Judicature at Calcutta with leave under section 66 A (2) of the Indian Income tax Act raises an interesting question as to the line of demarcation between capital expenditure and revenue expenditure.
On the 14th November, 1938, the appellant company acquired from the Government of Assam a lease of certain limestone quarries, known as the Komorrah quarries situated in the Khasi and Jaintia Hills District for the purpose of carrying on the manufacture of cement.
The lease was for 20 years commencing on the 1st November, 1938, and ending on the 31st October, 1958, with a clause for renewal for a further term of 20 years.
The rent reserved was a half yearly rent certain of Rs. 3,000 for the first two years and thereafter a half yearly rent certain of Rs. 6,000 with the provision for payment of further royalties in certain events.
In addition to these rents and royalties two further sums were payable under the special covenants contained in clause& 4 and 5 of the lease as " protection fees ".
Under clause 4 the protection was in respect of another group of quarries called the Durgasil area, the lessor undertaking not to grant any lease, permit or prospecting licence regarding the limestone to any other party 976 therein without a condition that no limestone should be used for the manufacture of cement in consideration of a sum of Rs. 5,000 payable annually during the whole period of the lease.
Under clause 5 a further protection was given in respect of the whole of the Khasi and Jaintia Hills District, a similar undertaking being given by the lessor in consideration of a sum of Rs. 35,000 payable annually but only for 5 years from the 15th November, 1940.
In the accounting years 1944 45 and 1945 46 the company paid its lessor sums of Rs. 40,000 in accordance with these two covenants and claimed to deduct the sums in the computation of its business profits under the provisions of section 10(2) (xv) of the Income tax Act in the assessments for the assessment years 1945 46 and 1946 47.
The Income tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal rejected the contention of the company and the following question, as ultimately reframed, was at the instance of the company referred by the Tribunal to the High Court for its decision : " Whether, in the circumstances of the case, the two sums of Rs. 5,000 and Rs. 35,000 paid under clauses 4 and 5 of the deed of the 14th November, 1938, were rightly disallowed as being expenditure of a capital nature and so not allowable under section 10(2) (xv) of the Indian Income tax Act ".
The High Court answered the question in the affirmative and hence this appeal.
Clauses 4 and 5 of the deed of lease may be here set out : 4.
The lessee shall pay to the lessor Rs. 5,000 (Rupees five thousand) only annually during the period of the lease on November 15th starting from November 15th, 1938, as a protection fee.
In consideration of that protection fee the lessor undertakes not to allow any person or company any lease permit or prospecting licence for limestone in the group of quarries as described in Schedule 2 and delineated in the plan thereto annexed and therein coloured blue called the Durgasil area without a condition in such 977 lease permit or prospecting licence that no limestone ,shall be used for the manufacture of cement.
5.Besides the above protection fee the lessee shall pay to the lessor annually the sum of Rs. 35,000 (Rupees thirty five thousand) only for five years starting from the 15th day of November, 1940, as a further protection fee so long as the total amount of limestone quarried by the lessee in a year does not exceed 22,00,000 maunds per year whether quarried in the area of this lease or elsewhere or obtained by purchase from other quarries in the Khasi and Jaintia Hills by the lessees.
If, however, in any year the total amount of limestone converted into cement at the lessee 's Sylhet,Factory exceed 22,00,000 maunds the lessee will be entitled to an abatement at the rate of Rs. 20 for every 1,000 maunds quarried in excess of 22,00,000 maunds and the lessee shall pay the sum of Rs. 35,000 less the abatement calculated on the basis hereinbefore mentioned.
Limestone which is not converted into cement at the lessee 's factory in Sylhet district will not entitle the lessee to any abatement in the protection fee.
The lessor in consideration of the said payment undertakes not to allow any person or company any lease permit or prospecting licence for limestone in the whole of Khasi and Jaintia Hills district without a condition in such lease permit or prospecting licence that no limestone extracted shall be used directly or indirectly for the manufacture of cement.
The lessor will be empowered to terminate this agreement for the payment of a protection fee at any time after it has run for 5 years by giving six month,% ' notice in writing by registered letter addressed to 11, Clive Street, Calcutta but the lessee will not be entitled to terminate this agreement during the currency of the lease except with the consent of the lessor.
It is not clear as to what was meant by the last provision contained in clause 5, the lessee in the event of his having paid the sum of Rs. 35,000 for the 5 years having nothing else to do but enjoy the benefit of the covenant on the part of the lessor during the subsequent period of the lease.
This provision is however immaterial for our purposes.
978 The line of demarcation between capital expenditure and revenue expenditure is very thin and learned Judges in England have from time to time pointed out the difficulties besetting that task.
Lord Macnaghten a Dovey vs Cory(1), administered the following warning: I do not think it desirable for any tribunal to do that which Parliament has abstained from doing that is, to formulate precise rules for the guidance or embarrassment of business men in the conduct of business affairs.
There never has been, and I think there never will be, much difficulty in dealing with any particular case on its own facts and circumstances; and, speaking for myself, I rather doubt the wisdom of attempting to do more." Rowlatt J. also expressed himself much to the same effect in Countess Warwick Steamship Co. Ltd. vs Ogg(1): " It is very difficult, as I have observed in previous cases of this kind, following the highest possible authority, to lay down any general rule which is both sufficiently accurate and sufficiently exhaustive to cover all or even a great number of possible cases, and I shall not attempt to lay down any such rule.
" Certain broad tests have however been attempted to be laid down and the earliest was the one indicated in the following observations of Bowen L.J. in the course of the argument in City of London Contract Corporation vs Styles (3) : " You do not use it 'for the purpose of ' your concern, which means, for the purpose of carrying on your concern, but you use it to acquire the concern.
" The expenditure in the acquisition of the concern would be capital expenditure; the expenditure in carrying on the concern would be revenue expenditure.
Lord Dunedin in Vallambrosa Rubber Co., Ltd. vs Farmer ( 4), suggested another criterion at page 536 : Now, I don 't say that this consideration is absolutely final or determinative, but in a rough way I think it is not a bad criterion of what is capital (1) , 488.
(2) [1924] 2 K.B. 292, 298.
(3)(1887) , 243.
(4)(1910) , 536.
979 expenditure as against what is income expenditure to say that capital expenditure is a thing that is a going to be spent once and for all, and income expenditure is a thing that is going to recur every year.
" This test was adopted by Rowlatt J. in Ounsworth (Surveyor of Taxes) vs Vickers Ltd. (1), and after quoting the above passage from the speech of Lord Dunedin he observed that the real test was between expenditure which was made to meet a continuous demand for ex.
penditure as opposed to an expenditure which was made once for all.
He however suggested in the course of his judgment another view point and that was whether the particular expenditure could be put against any particular work or whether it was to be regarded as an enduring expenditure to serve the business as a whole, thus laying the foundation for the test prescribed by Viscount Cave L.C. in Atherton 's case (2).
Atherton vs British Insulated and Helsby Cables Ltd. (2), laid down what has almost universally been accepted as the test for determining what is capital expenditure as distinguished from revenue expenditure.
Viscount Cave L.C. there observed at page 192: "But there remains the question, which I have found more difficult, whether apart from the express prohibitions, the sum in question is (in the words used by Lord Sumner in Usher 's case(3) ), a proper debit item to be charged against incomings of the trade when computing the profits of it; or, in other words, whether it is in substance a revenue or a capital expenditure.
This appears to me to be a question of fact which is proper to be decided by the Commissioners upon the evidence brought before them in each case ; but where, as in the present case, there is no express finding by the Commissioners upon the point, it must be determined by the Courts upon the materials which are available and with due regard to the principles which have been laid down in the authorities.
Now, in Vallambrosa Rubber Company vs Farmer (4).
Lord Dunedin, as Lord President of the Court of Session, expressed the opinion that "in a rough way" it was (1)(1915) (2)(1925) (3)(19I4) (4)(19IO) 536, 980 "not a bad criterion of what is capital expenditure as against what is income expenditure to say that capital expenditure is a thing that is going to be spent once and for all and income expenditure is a thing which is going to recur every year" ; and no doubt this is often a material consideration.
But the criterion suggested is not, and was obviously not, intended by Lord Dunedin to be a decisive one in every case; for it is easy to imagine many cases in which a payment, though made "once and for all", would be properly chargeable against the receipts for the year. .
But when an expenditure is made, not only once and for all.
but with a view to bringing into existence an asset or an advan tage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital." Viscount Haldane however in John Smith & Son vs Moore (H. M. Inspector of Taxes) (1), suggested another test and that was the test of fixed or circulating capital, though even there he observed that it was not necessary to draw an exact line of demarcation between the fixed and circulating capital.
The line of demarcation between fixed and circulating capital could not be defined more precisely than in the description of Adam Smith of fixed capital as what the owner turns to profit by keeping it in his own possession, and circulating capital as what he makes profit of by parting with it and letting it change masters.
This test was adopted by Lord Hanworth M.R. in Anglo Persian Oil Co. vs Dale (2), where he observed: " I am inclined to think that the question whether the money paid is provided from the fixed or the circulating capital comes as near to accuracy as can be suggested.
Lord Cave 's test, that where money is spent for an enduring benefit it is capital, seems to leave open doubts as to what is meant by "enduring" . . . . (1) , 282.
(2) ,138.
981 It seems rather that the cases of Hancock (1) and of Mitchell vs B. W. Noble, Ltd. (2) and of Mallet vs Staveley Coal & Iron Co. (3), give illustrations that the test of fixed or circulating capital is the true one; and where, as in this case, the expenditure is to bring back into the hands of the company a necessary ingredient of their existing business important, but still ancillary and necessary to the business which they carry onthe expenditure ought to be debited to the circulating capital rather than to the fixed capital, which is em.
ployed in and sunk in the permanent even if wasting assets of the business.
" This preference of his was reiterated by Lord Hanworth M.R. in Golden Horse Shoe (New) Ltd. vs Thurgood (H. M. Inspector of Taxes) "The above cases serve to establish the difficulty of the question rather than to affirm any principle to be applied in all cases.
Indeed, in the last case cited, Atherton vs British Insulated and Helsby Cables Ltd. (5) Lord Cave says that a payment 'once and for all ' a test which had been suggested by Lord Dunedin in Vallambrosa Rubber Company ' vs Farmer(1), was not true in all cases, and he found authority for that statement in Smith vs Incorporated Council of Law Reporting for England and Wales (7) and the Anglo Persian case(8 ) already referred to is another.
The test of circulating, as contrasted with fixed capital, is as good a test in most cases, to my mind, as can be found ; but that involves the question of fact, was the outlay in the particular case from fixed or circulating capital ?" Romer L.J. at page 300 pointed out the difficulties in applying this test also.
"Unfortunately, however, it is not always easy to determine whether a particular asset belongs to the one category or the other.
It depends in no way upon what may be the nature of the asset in fact or in law.
Land may in certain circumstances be circulating (2) (2) (1927] 1 K.B. 719.
(3) (1928] 2 K.B. 405.
(4) , 298. 125 (5) , 192.
(6) (7) (8) 982 capital.
A chattel or a chose in action may be fixed capital.
The determining factor must be the nature of the trade in which the asset is employed.
The land upon which a manufacturer carries on his business is part of his fixed capital.
The land with which a dealer in real estate carries on his business is part of his circulating capital.
The machinery with which a manufacturer makes the articles that he sells is part of his fixed capital.
The machinery that a dealer in machinery buys and sells is part of his circulating capital, as is the coal that a coal merchant buys and sells in the course of his trade.
So, too, is the coal that a manufacturer of gas buys and from which he extracts his gas. " In Van Den Berghs, Limited vs Clark (H. M. Inspector of Taxes)(1), Lord Macmillan however veered round to Viscount Cave 's test and expressed his disapproval of the test of fixed and circulating capital.
He reviewed the various authorities and stated : " My Lords, if the numerous decisions are examined and classified, they will be found to exhibit a satisfactory measure of consistency with Lord Cave 's principle of discrimination.
" As regards the test of fixed and circulating capital he observed, at page 432 : " I have not overlooked the criterion afforded by the economists ' differentiation between fixed and circulating capital which Lord Haldane invoked in John Smith & Son vs Moore(1), and on which the Court of Appeal relied in the present case, but I confess that I have not found it very helpful. " The Privy Council in Tata Hydro Electric Agencies, Limited, Bombay vs Commissioner of Income tax, Bombay Presidency and Aden(1), pronounced at page 226: "What is money wholly and exclusively laid out for the purposes of the trade ' is a question which must be determined upon the principles of ordinary commercial trading.
It is necessary, accordingly, to attend (1) ; (2) , (3) (1937) L.R, 64 I.A. 215.
983 to the true nature of the expenditure, and to ask oneself the question, is it a part of the company 's working expenses; is it expenditure laid out as part of the process of profit earning ?" In the case before them they came to the conclusion that the obligation to make the payments was undertaken By the appellants in consideration of their acquisition of the right and opportunity to earn profits, i.e., of the right to conduct the business and not for the purpose of producing profits in the conduct of the business.
The distinction was thus made between the acquisition of an income earning asset and the process of the earning of the income.
Expenditure in the acquisition of that asset was capital expenditure and expenditure in the process of the earning of the profits was revenue expenditure.
This test really is akin to the one laid down by Bowen L.J. in The City of London Contract Corporation Ltd. vs Style8(1).
Dixon J. expressed a similar opinion in Sun Newspapers Limited and the Associated Newspapers Limited vs The Federal Commissioner of Taxation(1), at page 360: " But in spite of the entirely different forms, material and immaterial, in which it may be expressed, such sources of income contain or consist in what has been called a 'profit yielding subject," the phrase of Lord Blackburn in United Collieries Ltd. vs Inland Revenue Commissioners(3).
As general conceptions it may not be difficult to distinguish between the profit yielding subject and the process of operating it.
In the same way expenditure and outlay upon establishing, replacing and enlarging the profit yielding subject may in a general way appear to be of a nature entirely different from the continual flow of working expenses which are or ought to be supplied continually out of the returns of revenue.
The latter can be considered, estimated and determined only in relation to a period ,or interval of time, the former as at a point of time.
For the one concerns the instrument for earning profits (1) (2) (1038) ; (3) , 220.
984 and the other the continuous process of its use or employment for that purpose.
These are the three criteria adopted for distinguishing capital expenditure from revenue expenditure though it must be said that preponderance of opinion is to be found in support of Viscount Cave 's test as laid down in Atherton 's case(1).
Viscount Cave 's test has also been adopted almost universally in India: vide Munshi Gulab Singh & Sons V. Commissioner of Income tax(2), Commissioner of Income tax, Bombay vs Century Spinning, Weaving & Manufacturing Co. Ltd.(1), Jagat Bus Service, Saharanpur vs Commissioner of Income tax, U. P. & Ajmer Merwara(4), and Commissioner of Income tax, Bombay vs Finlay Mills Ltd.(5).
In Commissioner of Income tax, Bombay vs Century Spinning, Weaving & Manufacturing Co., Ltd.(3), Chagla J. observed, at page 116: " The legal touchstone which is almost invariably applied is the familiar dictum of Viscount Cave in Atherton 's case(1). .
Romer L.J. felt that this definition had placed the matter beyond all controversy see remarks in Anglo Persian Oil Co. 's case(6).
But Lord Macmillan in Van Den Bergh 's case(1), felt that Romer L.J. had been unduly optimistic and the learned Law Lord was of the opinion that the question whether a particular expenditure fell on one side of the line or other was a task of much refinement.
But on the whole I think that the definition of Viscount Cave is a good working definition ; and if one were to supplement it with the definition suggested by Mr. Justice Lawrence in Southern vs Borax Consolidated Ltd.(1), whether an expenditure had in any way altered the original character of the capital asset, we have a legal principle which can be applied to any set of given facts.
(1) (1925) to T.C. 155.(5) (1952] S.C.R. 11.
(2) [1945]14 I.T.R. 66.(6) (3) ; (4) [1942] 10 I.T.R. Suppl.
1, 6. 985 In Benarsidas Jagannath, In re(1), a Full Bench of the Lahore High Court attempted to reconcile all these decisions and deduced the following broad test for distinguishing capital expenditure from revenue expenditure.
The opinion of the Full Bench was delivered by Mr. Justice Mahajan as he then was, in the terms following: " It is not easy to define the term 'capital expenditure ' in the abstract or to lay down any general and satisfactory test to discriminate between a capital and a revenue expenditure.
Nor is it easy to reconcile all the decisions that were cited before us for each case has been decided on its peculiar facts.
Some broad principles can, however, be deduced from what the learned Judges have laid down from time to time.
They are as follows : 1.
Outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment: vide Lord Sands in Commissioners of Inland Revenue vs Granite City Steamship Company(1).
In City of London Contract Corporation vs Styles(1), at page 243, Bowen L.J. observed as to the capital expenditure as follows : " You do not use it 'for the purpose of ' your concern, which means, for the purpose of carrying on your concern, but you use it to acquire the concern.
Expenditure may be treated as properly attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade: vide Viscount Cave L.C. in Atherton vs British Insulated and Helsby Cables Ltd.(1).
If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether.
Thus, if labour saving machinery was acquired, the cost of such acquisition cannot be (1) (3) (2) , 14.
(4) 986 deducted out of the profits by claiming that it relieves the annual labour bill, the business has acquired anew asset, that is, machinery.
The expressions 'enduring benefit ' or 'of a permanent character ' were introduced to make it clear that the asset or the right acquired must have enough durability to justify its being treated as a capital asset.
3.Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business.
Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital.
Fixed capital is what the owner turns to profit by keeping it in his own possession.
Circulating or floating capital is what he makes profit of by parting with it or letting it change masters.
Circulating capital is capital which is turned over and in the process of being turned over yields profit or loss.
Fixed capital, on the other hand, is not involved directly in that process and remains unaffected by it".
This synthesis attempted by the Full Bench of the Lahore High Court truly enunciates the principles which emerge from the authorities.
In cases where the expenditure is made for the initial outlay or for extension of a business or a substantial replacement of the equipment, there is no doubt that it is capital expenditure.
A capital asset of the business is either acquired or extended or substantially replaced and that outlay whatever be its source whether it is drawn from the capital or the income of the concern is certainly in the nature of capital expenditure.
The question however arises for consideration where expenditure is incurred while the business is going on and is not incurred either for extension of the business or for the substantial replacement of its equipment.
Such expenditure can be looked at either from the point of view of what is acquired or from the point of view of what is the source from which the expenditure is incurred.
If the expenditure is made for acquiring or bringing into existence an. asset or advantage for the enduring benefit of the 987 business it is properly attributable to capital and is of the nature of capital expenditure.
If on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure.
If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically.
The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure.
The source or the manner of the payment would then be of no consequence.
It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital.
If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure.
These tests are thus mutually exclusive and have to be applied to the facts of each particular case in the manner above indicated.
It has been rightly observed that in the great diversity of human affairs and the complicated nature of business operations it is difficult to lay down a test which would apply to all situations.
One has therefore got to apply these criteria, one after the other from the business point of view and come to the conclusion whether on a fair appreciation of the whole situation the expenditure incurred in a particular case is of the nature of capital expenditure or revenue expenditure in which latter event only it would be a deductible allowance under section 10(2) (xv) of the Income tax Act.
The question has all along been considered to be a question of fact to be determined by the Income tax authorities on an application of the broad principles laid down above and the courts of law would not ordinarily interfere with such findings of fact if they have 988 been arrived at on a proper application of those principles.
The expression "once and for all" used by Lord Dunedin has created some difficulty and it has been contended that where the payment is not in a lump sum but in instalments it cannot satisfy the test.
Whether a payment be in a lump sum or by instalments, what has got to be looked to is the character of the payment.
A lump sum payment can as well be made for liquidating certain recurring claims which are clearly of a revenue nature, and on the other hand payment for purchasing a concern which is prima facie an expenditure of a capital nature may as well be spread over a number of years and yet retain its character as a capital expenditure.
(Per Mukherjea J. in Commissioner of Income tax vs Piggot Chapman & Co.(1).
The character of the payment can be deter mined by looking at what is the true nature of the asset which has been acquired and not by the fact whether it is a payment in a lump sum or by instalments.
As was otherwise put by Lord Greene M.R. in Henriksen (Inspector of Taxes) vs Grafton Hotel Ltd.(2): "The thing that is paid for is of a permanent quality although its permanence, being conditioned by the length of the term, is shortlived.
A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of a lease, which is admittedly not deductible".
The case of Tata Hydro Electric Agencies Ltd., Bombay vs Commissioner of Income tax, Bombay Presidency and Aden(3) affords another illustration of this principle.
It was observed there: "If the purchaser of a business undertakes to the vendor as one of the terms of the purchase that he will pay a sum annually to a third party, irrespective of whether the business yields any profits or not, it would be difficult to say that the annual payments were made solely for the purpose of earning the profits of the business".
(1) [1949] 171.T.R. 3I7.
(3) (193 7) L. R. 64 1, A 215.
(2) 989 The expression "once and for all" is used to denote an expenditure which is made once and for all for procuring an enduring benefit to the business as distinguished from a recurring expenditure in the nature of operational expenses.
The expression "enduring benefit" also has been judicially interpreted.
Romer L.J. in Anglo Persian Oil Company, Limited vs Dale(1) agreed with Rowlatt J. that by enduring benefit is meant enduring in the way that fixed capital endures: "An expenditure on acquiring floating capital is not made with a view to acquiring an enduring asset.
It is made with a view to acquiring an asset that may be turned over in the course of trade at a comparatively early date".
Latham C. J. observed in Sun Newspapers Ltd. & Associated Newspapers Ltd. vs Federal Commissioner of Taxation(2): "When the words 'permanent ' or 'enduring ' are used in this connection it is not meant that the advantage which will be obtained will last for ever.
The distinction which is drawn is that between more or less recurrent expenses involved in running a business and an expenditure for the benefit of the business as a whole e.g "enlargement of the goodwill of a company permanent improvement in the material or immaterial assets of the concern".
To the same effect are the observations of Lord Greene M. R. in Henriksen (H.M. Inspector of Taxes) vs Grafton Hotel Ltd. (3 ) above referred to.
These are the principles which have to be applied in order to determine whether in the present case the expenditure incurred by the company was capital expenditure or revenue expenditure.
Under clause 4 of the deed the lessors undertook not to grant any lease, permit or prospecting license regarding limestone to any other party in respect of the group of quarries called the Durgasil area without a condition therein that no limestone shall be used for the manufacture of (1) (1932] 1 K.B. 124, 146.
(2) ; , 355.
126 (3) 990 cement.
The consideration of Rs. 5,000 per annum was to be paid by the company to the lessor during the whole period of the lease and this advantage or benefit was to enure for the whole period of the lease.
It was an enduring benefit for the benefit of the whole of the business of the company and came well within the test laid down by Viscount Cave.
It was not a lump sum payment but was spread over the whole period of the lease and it could be urged that it was a recurring payment.
The fact however that it was a recurring payment was immaterial, because one bad got to look to the nature of the payment which in its turn was determined by the nature of the asset which the company had acquired.
The asset which the company had acquired in consideration of this recurring payment was in the nature of a capital asset, the right to carry on its business unfettered by any competition from outsiders within the area.
It was a protection acquired by the company for its business as a whole.
It was not a part of the working expenses of the business but went to appreciate the whole of the capital asset and make it more profit yielding.
The expenditure made by the company in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was not an allowable deduction under section 10(2)(xv) of the Income tax Act.
The further protection fee which was paid by the company to the lessor under clause 5 of the deed was also of a similar nature.
It was no doubt spread over a period of 5 years, but the advantage which the company got as a result of the payment was to enure for its benefit for the whole of the period of the lease unless determined in the manner provided in the last part of the clause.
It provided protection to the company against all competitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the company acquired under the lease was thereby appreciated to a considerable extent.
The sum of Rs. 35,000 agreed to be paid by the company to the lessor for the period of 5 years was not a revenue expenditure which was made by the company for working the capital asset which it had acquired.
It was no 991 part of the working or operational expenses of the company.
It was an expenditure made for the purpose of acquiring an appreciated capital asset which would no doubt by reason of the undertaking given by the lessor make the capital asset more profit yielding.
The period of 5 years over which the payments were spread did not make any difference to the nature of the acquisition.
It was none the less an acquisition of an advantage of an enduring nature which enured for the benefit of the whole of the business for the full period of the lease unless terminated by the lessor by notice as prescribed in the last part of the clause.
This again was the acquisition of an asset or advantage of an enduring nature for the whole of the business and was of the nature of capital expenditure and thus was not an allowable deduction under section 10(2)(xv) of the Act.
We are therefore of the opinion that the conclusion reached by the Income tax authorities as well as the High Court in regard to the nature of the payments was correct and the sums of Rs. 40,000 paid by the company to the lessors during the accounting years 1944 45 and 1945 46 were not allowable deductions under section 10(2)(xv) of the Act.
The appeal therefore fails and must be dismissed with costs.
Appeal dismissed.
| Section 10(2)(xv) of the Indian Income tax Act, 1922, uses the term 'capital expenditure ' for which no allowance is given to the assessee.
The term 'capital expenditure ' is used as contrasted with the term 'revenue expenditure in respect of which the assessee is entitled to allowance under section 10(2) (xv) of the Act.
As pointed out by the Full Bench of the Lahore High Court in Benarsidas Jagannath, In re [(1946) it is not easy to define the term 'capital expenditure ' in the abstract or to lay down any general and satisfactory test to discriminate between a capital and a revenue expenditure.
Though it is not easy to reconcile all the decided cases on the subject, as each case had been decided on its peculiar facts, some broad principles could be 973 deduced from what the learned judges have laid down from time to time: (1)Outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment: vide Lord Sands in Commissioners of Inland Revenue vs Granite City Steamship Company ( and City of London Contract Corporation vs Styles ( (2)Expenditure may be treated as properly attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade: vide Viscount Cave, L.C., in Atherton vs British Insulated and Helsby Cables Ltd. ([1926] If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether.
Thus, if labour saving machinery was acquired, the cost of such acquisition cannot be deducted out of the profits by claiming that it relieves the annual labour bill, the business has acquired a now asset, that is, machinery.
The expressions 'enduring benefit ' or 'of a permanent character ' were introduced to make it clear that the asset or the right acquired must have enough durability to justify its being treated as a capital asset.
(3)Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business.
Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital.
Fixed capital is what the owner turns to profit by keeping it in his own possession.
Circulating or floating capital is what he makes profit of by parting with it or letting it change masters.
Circulating capital is capital which is turned over and in the process of being turned over yields profit or loss.
Fixed capital, on the other hand, is not involved directly in that process and remains unaffected by it.
One has got to apply these criteria, one after the other from the business point of view and come to the conclusion whether on a fair appreciation of the whole situation the expenditure incurred in a particular case is of the nature of capital expenditure or revenue expenditure in which latter event only it would be a deductible allowance under section 10(2)(xv) of the Indian Income tax Act, 1922.
The question has all along been considered to be a question of fact to be determined by the Income_ tax Authorities on an application of the broad principles laid down above and the Courts of law would not ordinarily interfere with such findings of 124 974 fact if they have been arrived at on a proper application of those principles.
The assessee acquired from the Government of Assam a lease for 20 years (with a clause for renewal) in respect of certain limestone quarries situated in Khasi and Jaintia Hills.
In addition to the rents and royalties for lease the assessee as the lessee had to pay two further sums as protection fees ' under the covenants contained in clauses 4 and 5 of the lease.
Under clause 4 the portection was in respect of another group of quarries called the Durgasil area, and the lessor undertook not to grant for this area any lease, permit or prospecting licence regarding limestone to any other party except with a condition that no limestone should be used for the manufacture of cement.
This protection was given in consideration of a sum of Rs. 5,000 annually payable by the assessee during the whole period of the lease.
Under clause 5 a further protection was given by the lessor to the lessee in respect of the whole of the Khasi and Jaintia Hills District for which lessee was to pay annually Rs. 35,000 to the lessor for 5 years.
According to these covenants the assessee in his capacity as the lessee paid the lessor a sum of Rs. 40,000 for the accounting years 1944 45 and 1945 46.
Held, that the sum of Rs. 40,000 was a capital expenditure inasmuch as it was incurred for the acquisition of an asset or advantage of an enduring nature for the whole of the business and Was no part of the working or operational expenses for carrying on the business of the assesses.
Accordingly the payment of Rs. 40,000 was not an allowable deduction under section 10(2)(xv) of the Indian Income tax Act, 1922.
Countess Warwick Steamship Co. Ltd. vs Ogg [1924] 2 K.B. 292), City of London Contract Corporation vs Styles [18871 , Vallambrosa Rubber Co., Ltd. vs Farmer ( , Ounsworth (Surveyor of Taxes) vs Vickers Limited ( [19151 , Atherton vs British Insulated and Helsby Cables, Ltd. ([1925] , Usher 's case ( , John Smith & Son vs Moore (H. M. Inspector of Taxes), ( [19211 , Anglo Persian Oil Co. vs Dale ( , Golden Horse Shoe (New) Ltd. vs Thurgood (H. M. Inspector of Taxes), ( [1933]18 T.C. 280).
Van Den Berghs, Limited vs Clark (H. M. Inspector of Taxes) (I 19341 ; , Tata Hydro Electric Agencies, Limited, Bombay vs Commissioner of Income tax, Bombay Presidency and Aden ([19371 L.R. 64 I.A. 215), Sun Newspapers Ltd. and the Associated Newspapers Ltd. vs The Federal Commissioner of Taxation ([1938] 61 C.L.R. 337), Munshi Gulab Singh and Sons.
vs Commissioner of Income tax ([1945] , Commissioner of Income tax, Bombay vs Century Spinning Weaving and Manufacturing Co. Ltd. ([1946] , Jagat Bus Service Saharanpur vs Commissioner Of Income tax, U.P. & Ajmer Merwara ([1949] , Commissioner of Income tax, Bombay vs Finlay Mills Ltd., ([1952] S.C.R. 11), Commissioner of Income tax vs Piggot Chapman. & Co. 975 ( and Henriksen (Inspector of Taxes) vs Grafton Hotel Ltd. ( , referred to.
Benarsidas Jagannath, In re, ( , approved.
|
Appeal No. 24 of 1955.
Appeal by special leave from the judgment and decree dated March 11, 1949, of the Bombay High Court, in Letters Patent Appeal No. 22 of 1945, arising out of the judgment and decree dated August 3, 1944, of the said High Court in Second Appeal No. 754 of 1942.
695 M. section K. Sastri, for the appellants.
Naunit Lal, for respondents.
September 11.
The Judgment of the Court was delivered by DAS C. J.
This appeal by special leave has arisen out of Original Suit No. 582 of 1937 filed in the Court of the Subordinate Judge of Chikodi by one Tukaram Shidappa Borgavi alias Teli (since deceased) and his son Mallappa Tukaram Borgavi alis Teli (1st respondent herein) against the appellants for the redemption of certain mortgaged property and possession thereof free from encumbrances and for other ancillary reliefs.
The mortgaged property consists of R. section No. 301 which is Devasthan Inam Lands burdened with the obligation to supply oil for Nand Deep, i.e., keeping a lamp always burning before Shri Tholaba Deity in the village of Nipani.
The said property originally belonged to two brothers Shiddappa and Annappa.
The khata of the land, however, stood in the name of Shiddappa as the registered occupant under section 74 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879).
The facts material for our present purpose may now be stated.
On January 23, 1888, Shiddappa and Annappa executed a usufructuary mortgage (Ex.D 51) in favour of Lalchand Bhavanchand Gujar and Tuljaram Bhavanchand Gujar for Rs. 1,300 made up of Rs. 1,100 due under a previous mortgage and Rs. 200 presently advanced in cash.
That deed provided that the mortgage money would be repaid within a period of three years and that the mortgagors would pay the judi and incur the expenses of the Nand Deep and that on failure of the mortgagors to meet the said out goings, the mortgagees would incur the said expenses and add the same to their claim on the mortgage.
On March 10, 1900, Shiddappa alone executed a simple mortgage (exhibit D 52) for Rs. 600 in favour of the same mortgagees.
A part of the consideration for this simple mortgage consisted of moneys borrowed by both the brothers on bonds executed by both of them.
This simple mortgage deed provided 696 that the mortgagees would bear the expenses of the Nand Deep and debit the same to the mortgagors in the mortgage account.
On March 22, 1900, before the simple mortgage deed was presented for registration, Shidappa, who was the registered occupant, gave a Rajinama under section 74 of the Bombay Revenue Code recording his desire to submit an unconditional surrender of the above mentioned khata of R. section No. 307 from the end of the then current year.
On the same day, the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property may be granted to them.
Both the Rajinama and the Kabuliyat were sanctioned by the Mamlatdar on May 5,1900.
Shiddappa having died, Annappa in 1905 applied to the Mamlatdar alleging that the mortgaged property was Devasthan Inam and praying for the cancellation of the transfer in favour of the mortgagees and for placing the mortgaged property in his name.
This application was rejected.
In 1907 Shiddappa 's son Tukaram (the original first plaintiff herein)and Annappa, the brother of Shiddappa, filed suits against the mortgagees for accounts to be taken under the Deccan Agriculturists ' Relief Act.
That suit having been dismissed, they appealed to the District Court, Belgaum, but that appeal was dismissed on March 15, 1909.
Annappa again applied for the lands being put in his possession, but that application also was rejected on August 4, 1910.
Thereafter, in 1911 Annappa and Tukaram, the brother and son respectively of Shiddappa, filed C. section No. 362 of 1911 under the same Deccan Agriculturists ' Relief Act for the same reliefs.
That suit was also dismissed and the appeal there from met with a like fate on March 17,1914.
In 1922 Annappa died without any issue.
The mortgagee Lalchand died issueless and the mortgagee Tuljaram died leaving a son named Lilachand Tuljaram who became entitled to the entire mortgage securities.
On November 1, 1937, Tukaram and, his son Ganpat, alleging that they were the legal representatives of both Shiddappa and Annappa, filed Original Suit No. 586 of 1937, out of which this appeal arises, against the appellants Lilachand and his three sons for the redemption of the mortgages.
In the 697 written statement the defendants appellants pleaded that the deceased Shiddappa having sold the mortgaged property to the mortgagees, the equity of redemption became extinguished and that as Shiddappa alone was the registered occupant, the Rajinama given by him, was valid and binding on Annappa.
They further alleged that the plaintiffs were not the heirs of the deceased Annappa, for the latter had died after having transferred his interests in the mortgaged properties to others.
It transpires that Annappa died in 1922 after having made and published his last will and testament bequeathing his interest in the mortgaged properties to one Krishna Kallappa, that Krishna Kallappa applied for Letters of Administration in respect of Annappa 's estate and that in spite of the opposition of Tukaram, Letters of Administration with a copy of the will annexed was granted to Krishna Kallappa.
Krishna Kallappa having died, his four sons were added as party defendants to this suit and then on their own application they were transposed to the category of plaintiffs.
The trial Court held that the Rajinama executed by Shiddappa did not extinguish the title of the mortgagors in the mortgaged property, that the plaintiffs were agriculturists, that they were bound to pay the amount also under the simple mortgage and that on taking accounts the mortgages had redeemed themselves.
Accordingly the trial court passed a decree for possession declaring that both the mortgages had been satisfied.
The mortgagees, defendants 1 to 4, appealed to the District Court, Belgaum, in Regular Civil Appeal No. 322 of 1940.
The District Court held that by the Rajinama, Shiddappa intended to convey the title in the suit land to the mortgagees and hence Shiddappa 's heirs, the plaintiffs 1 and 2, could not claim redemption of Shiddappa 's one half share in the suit land.
As regards Annappa 's share, the learned Judge held that the Rajinama had not the effect of transferring the interest of Annappa to the mortgagees and that inasmuch as the mortgages were subsisting, the defendants could not acquire title by adverse possession.
In this view he allowed the appeal in part with the result that 698 the suit was dismissed so far as the claims of plaintiffs 1 and 2 were concerned but the claims of plaintiffs 3 to 6 as the legal representatives of Annappa were upheld and they were allowed to redeem Annappa 's one half share of and in the mortgaged property on payment of one half of the amounts due under the two mortgages.
The mortgagee defendants 1 to 4 appealed to the High Court in Second Appeal No. 754 of 1942 against that part of the decree which rejected their claim to Annappa 's share and the plaintiffs 1 and 2 also filed Second Appeal No. 1011 of 1942 against the dismissal of their claim for redemption of one half share of Shiddappa in the mortgaged property.
Both the appeals were disposed of by a common judgment by Weston, J.
The learned Judge held that, so far as Shiddappa 's share was concerned, the Rajinama was a complete relinquishment of his interest, but as regards Annappa 's share, he agreed with the District Judge 's conclusion that Shiddappa could not bind Annappa 's share by the Rajinama and in this view of the matter he dismissed both the appeals.
Against this decree both the parties preferred Letters Patent Appeals, namely, L.P.A. No. 22 of 1945 which was filed by defendants 1 to 4 and L.P.A. No. 16 of 1945 which was filed by plaintiffs 1 and 2.
The Division Bench dismissed both the appeals.
The present plaintiff No. 1, the son of Tukaram (the deceased son of Shiddappa who was the original plaintiff No. 1) has not come up to this Court and, therefore, the decision of the Division Bench has become final so far as he is concerned.
The High Court having refused to grant leave to appeal to this Court, the mortgagees defendants 1 to 4 applied to and obtained from this Court special leave to appeal against the decision of the Division Bench in so far as it upheld the rejection of their claims to Annappa 's half share in the mortgaged property.
Hence the present appeal.
The plaintiffs respondents, who are the legal representatives of Annappa and against whom the present appeal is directed, have not entered appearance in this appeal.
Learned advocate appearing in support of the appeal urges that the Rajinama and the Kabuliyat taken 699 together evidenced a transfer of title from the mortgagors to the mortgagees and, therefore, operated to extinguish the equity of redemption not only of Shiddappa but also of Annappa, for there is sufficient evidence on record that Shiddappa was the manager and karta of the joint family and that in the matter of passing the Rajinama he had acted in that capacity and, therefore, the Rajinama was binding on his brother Annappa.
As pointed out by the Division Bench in their judgment in the Letters Patent Appeal, this case of Shiddappa having acted as karta was nowhere made by the defendants appellants in their written statement and, in agreement with the High Court, we declined to allow learned advocate for the appellants to make out such a new case.
This case being thus out of the way, learned advocate for the appellants urges that under section 74 of the Bombay Land Revenue Code, as Shiddappa was the registered occupant, the Rajinama filed by him operated upon the entire occupancy and amounted to a relinquishment of the rights of both the brothers Shiddappa and Annappa.
Section 74 of the Bombay Land Revenue Act, as it stood at all material times, ran as follows : " An occupant may, by giving written notice to the Mamlatdar or Mahalkari, relinquish his occupancy, either absolutely or in favour of a specified person; provided that such relinquishment applied to the entire occupancy or to whole survey numbers, or recognized shares of Survey Numbers.
An absolute relinquishment shall be deemed to to have effect from the close of the current year, and notice thereof must be given before the 31st March in such year, or before such other date as may be from time to time prescribed in this behalf for each district by the Governor in Council.
A relinquishment in favour of a specified person may be made at any time.
When there are more occupants than one, the notice of relinquishment must be given by the registered occupant; and the person, if any, in whose favour an occupancy is relinquished, or, if such 700 occupancy is relinquished in favour of more persons than one, the principal of such persons, must enter into a written agreement to become the registered occupant, and his name shall thereupon be substituted in the records for that of the previous registered occupant.
" Reliance is placed on the concluding paragraph of the section which provides that when a relinquishment is made in favour of more persons than one the principal one of such persons must enter into a written agreement to become the registered occupant and his name shall thereupon be substituted in the records for that of the previous registered occupant.
This provision, it is said, makes it clear that so far as the revenue authorities are concerned, it is the registered occupant who represents the entire occupancy and the fact that the notice of relinquishment must, under the section, be given by the registered occupant also supports the contention that the Rajinama passed by the registered occupant binds all the occupants.
We are unable to accept this argument as correct.
The concluding paragraph of the section clearly recognises that a relinquishment may be in favour of more persons than one.
It is true that the principal one of such persons must enter into a written agreement to become the registered occupant.
This is for facilitating the purpose of the Code but it does not mean that the other persons in whose favour the occupancy is relinquished cease to have any right.
That their right as occupants remains is clearly recognised by the opening paragraph of the section which gives an occupant a right to relinquish his occupancy either absolutely or in favour of a specified person.
This right is given to all occupants, if there are more than one, for the singular includes the plural.
It is true that where there are more occupants than one, the notice of relinquishment on behalf of any occupant must be given by the registered occupant.
That does not mean, in the absence of any specific pleading and cogent proof, that a notice of relinquishment given by the registered occupant must necessarily be a notice on behalf of all occupants or any particular occupant other than the 701 registered occupant, or that the registered occupant has the right to give such a notice without reference to the other occupants so as to effect their interest in the occupancy.
Turning to the Rajinama, it is clear that Shiddappa did not purport to file, the same on behalf of Annappa nor had he any right to do so; by reason only of his being the registered occupant.
In Lalchand Sakharam Marwadi vs Khendu Kedu Ughade (1) one out of four brother mortgagors, who was the registered occupant of the mortgage land, passed a Rajinama of the land in favour of the mortgagee, who executed a Kabuliyat for the same.
The remaining three mortgagors sued to redeem the mortgage alleging that the Rajinama passed by their brother conveyed only his interest and nothing more.
It was held that though the conveying brother was a co mortgagor with the plaintiffs, he had no right to sell their interest in the equity of redemption and that, so far ' as they, were concerned, he was in the same position as an outsider.
It is true that no specific reference was made in the judgment to section 74 of the Bombay Land Revenue Code, but the actual decision in that case, the facts of which are very similar to those of the instant case, quite clearly indicates the court 's understanding of the law applicable to those facts and that law was nothing but the provisions of section 74 of the Code.
In our opinion, on a correct interpretation of section 74, where there are more occupants than one in respect of the same occupancy each occupant has his own rights and the fact of registration of one of them as the registered occupant attracts the operation of the Code and confers certain rights or imposes certain obligations on the registered occupant as laid down in the Code but does not take away the rights of other occupants.
It is true that if any of the occupants other than the registered occupant desires to relinquish his occupancy.
he cannot himself give a notice of relinquishment but must give it by and through the registered occupant Nevertheless the registered occupant, in the absence of any authority, express or implied, to be clearly pleaded and strictly proved, has no inherent or independent (1) , 89 702 right to give any such notice so as to affect the interests of the other occupants.
In our opinion the Rajinama passed by Shiddappa did not affect the right of Annappa and his equity of redemption subsisted at all material times.
In our judgment the conclusion of the Division Bench of the High Court in the Letters Patent Appeals was correct and the principal contention urged before us must be repelled.
Learned Advocate for the appellant then faintly urges that Annappa 's interest in the property was extinguished by reason of the adverse possession exercised by the mortgagees Since at least 1905 when the claim of the Annappa to get the mortgaged property registered in his name failed.
It should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage.
Therefore their possession had a lawful origin.
A mere assertion of an adverse title on the part of the appellants cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation prescribed for a suit for redemption.
In view of the observation of the Judicial Committee in Khiarajmal vs Daim (1), the learned advocate for the appellants did not seriously press the point of limitation any further.
No other point having been urged before us in this appeal, the appeal must, for reasons stated above, be dismissed.
As the respondents did not appear, there will be no order as to costs.
Appeal dismissed.
(1) (1904) L. R. 32 Ind. App.
| The retrenched workmen of the appellant concern who were paid compensation as provided in s 25F of the , claimed that they were entitled to be paid in addition gratuity under the gratuity scheme in force in the appellant concern as modified by the award of the industrial tribunal dated August 18, 1952.
The award provided: " The following gratuity scheme shall be for cases of retrenchment or termination of service by the company for any reason other than misconduct or for cases of resignation with the consent of the management".
The Appellate Tribunal took the view that gratuity provided under the award was different from compensation on retrench ment payable to a workman under section 25F of the Act.
Held, that on a proper construction of the award the amount payable thereunder to the workmen on retrenchment though called gratuity was really compensation on account of retrenchment as provided under section 25F of the Act, and that the workmen were only entitled to one or the other, whichever was more advantageous to them in view of section 25J of the Act.
It was not the intention of the legislature that a workman on retrenchment should get compensation twice, i.e., once under the Act and once again under the scheme in force providing for retrenchment compensation, by whatever name the payment might have been called.
|
s Nos. 188 and 189 of 1954.
Under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
H. M. Seervai, J. B. Dadgchanji and Rajinder Narain for petitioners.
C. K. Daphtary, Solicitor General for India (M.M. Kaul and P. G. Gokhale, with him) for respondent.
October 14.
The Judgment of the Court was delivered by MUKHERJEA J.
We now take up the two connected petitions under article 32 of the Constitution.
In one of these petitions, to wit Petition No. 188, Shri Bijay Cotton Mills Ltd. (hereinafter called 'the company '), the appellant in Civil Appeal No. 139 of 1954, figures as the petitioner, while the other petition, to wit, 755 Petition No. 189, has been filed by a number of employee working under it.
To appreciate the contentions of Mr. Seervai, who appears in support of both these petitions, it will be necessary to narrate a few antecedent facts : It appears that sometime in 1950 there was an industrial dispute between the company and its labourers regarding enhancement of wages and the dispute was referred by the Government of Ajmer to an.
Industrial Tribunal, by a notification dated the 1st December, 1950.
The tribunal made its award on the 27th November, 195 1, and held that "the present earning capacity of the mill precludes the award of higher rates of wages and higher dearness allowance.
" The employees took an appeal against this award to the Appellate Tribunal.
While this appeal was pending, the Chief Commissioner, Ajmer, took steps for the fixation of minimum wages of labourers in the textile industry within the State, under the provisions of the Minimum Wages Act.
A committee was formed, as has already been stated, on the 17th of January, 1952, which submitted its report on the 4th of October, following and on the 7th of October, 1952, the notification was issued fixing the minimum rates of wages, against which writ petitions were filed by several textile companies including the petitioner company.
In the meantime however the appeal filed by the labourers of the company proceeded, in the usual way, before the Appellate Tribunal.
The Appellate Tribunal sent the case back to the Industrial Tribunal for further investigation and the latter made its final award on the 8th of September, 1953, by which it rejected the basis upon which minimum wages of Rs. 56 were fixed by the Chief Commissioner and fixed the minimum wages including the dearness allowance at Rs. 35 only.
The company states in its petition that the minimum wages fixed by the State Government of Ajmer is altogether prohibitory and it is not at all possible for the company to carry on its business on payment of such wages.
Accordingly the company closed its mills on and from the 1st April, 1953.
There were about 1500 labourers working in the mills of the company and since January, 1954, several hundreds of 754 them, it is said, approached the managing authorities and requested them to open the mills expressing their willingness to work at Rs. 35 as wages as fixed by the Industrial Tribunal.
Though the majority of workers were agreeable to work on the wages fixed by the Industrial Tribunal, the company is unable to open the mills by reason of the fact that the Minimum Wages Act makes it a criminal offence not to pay the wages fixed under the Act.
This being the position and as the Minimum Wages Act stands in the way of the company 's carrying on its business, on terms agreed to between itself and its workers, Petition No. 188 of 1954 has been filed by the company challenging the constitutional validity of the material provisions of the Minimum Wages Act itself.
The workmen who are willing to work at less than the minimum wages fixed by the State Government have filed the other petition supporting all the allegations of the company.
Mr. Seervai, who appears in support of both these petitions, has invited us to hold that the material provisions of the Minimum Wages Act are illegal and ultra vires by reason of their conflicting with the fundamental rights of the employers and the employed guaranteed under article 19(1) (g) of the Constitution and that they are not protected by clause (6) of that article.
It is contended by the learned counsel that the Minimum Wages Act puts unreasonable restrictions upon the rights of the employer in the sense that he is prevented from carrying on trade or business unless he is prepared to pay minimum wages.
The rights of the employees are also restricted, inasmuch as they are disabled from working in any trade or industry on the terms agreed to between them and their employers.
It is pointed out that the provisions relating to the fixation of minimum wages are unreasonable and arbitrary.
The whole thing has been left to the unfettered discretion of the "appropriate Government" and even when a committee is appointed, the report or advice of such committee is not binding on the Government.
The decision of the committee is final and is not open to further review or challenge in any Court of law.
The learned counsel further says that the restrictions put by the Act are altogether unreasonable 755 and even oppressive with regard to one class of employers, who for purely economic reasons are not able to pay the minimum wages but who have no intention to exploit labour at all.
In such cases the provisions of the Act have no reasonable relation to the object which it has in view.
We will examine these contentions in their proper order.
It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical subsistence but also the maintenance of health and decency, is conducive to the general interest of the public.
This is one of the Directive Principles of State Policy embodied in article 43 of our Constitution.
It is well known that in 1928 there was a Minimum Wages Fixing Machinery Convention held at Geneva and the resolutions passed in that convention were embodied in the International Labour Code.
The Minimum Wages Act is said to have been passed with a view to give effect to these resolutions (vide section I. Est., etc.
vs The State of Madras)(1).
If the labourers are to be secured in the enjoyment of minimum wages and they are to be protected against exploitation by their employers, it is absolutely necessary that restraints should be imposed upon their freedom of contract and such restrictions cannot in any sense be said to be unreasonable.
On the other hand, the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers, on account of their poverty and helplessness, are willing to work on lesser wages.
We could not really appreciate the argument of Mr. Seervai that the provisions of the Act are bound to affect harshly and even oppressively a particular class of employers who for purely economic reasons are unable to 'pay the minimum wages fixed by the authorities but have absolutely no dishonest intention of exploiting their labourers.
If it is in the interest of the general public that the labourers should be secured adequate living wages, the intentions of the employers whether good or bad are really irrelevant.
Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the (1) ,521.
756 Act but this must be due entirely to the economic conditions of these particular employers.
That cannot be a reason for the striking ' down the law itself as unreasonable.
As regards the procedure for the fixing of minimum wages, the "appropriate Government" has undoubtedly been given very large powers.
But it has to take into consideration, before fixing wages, the advice of the committee if one is appointed, or the representations on his proposals made by persons who are likely to be affected thereby.
Consultation with advisory bodies has been made obligatory on all occasions of revision of minimum wages, and section 8 of the Act provides for the appointment of a Central Advisory Board for the purpose of advising the Central as well as the State Government both in the matter of fixing and revision of minimum wages.
Such Central Advisory body is to act also as a coordinating agent for coordinating the work of the different advisory bodies.
In the committees or the advisory bodies the employers and the employees have an equal number of representatives and there are certain independent members besides them who are expected to take a fair and impartial view of the matter.
These provisions in our opinion, constitute an adequate safeguard against any hasty or capricious decision by the "appropriate Government.
" In suitable cases the "appropriate Government" has also been given the power of granting exemptions from the operation of the provisions of this Act.
There is no provision undoubtedly for a further review of the decision of the "appropriate Government", but we do not think that by itself would make the provisions of the Act unreasonable.
In our opinion, the restrictions, though they interfere to some extent with the freedom of trade or business guaranteed under article 19(1) (g) of the Constitution, are reasonable and being imposed in the interest of the general public are protected by the terms of clause (6) of article 19.
The result is that the petitions are dismissed.
We make no order as to costs.
Petitions dismissed.
| A Jagirdar executed a deed on August 5, 1949 in favour of the appellant for the sale of logs of a specified girth to be obtained from cutting the trees in his forests.
On February 19, 1951 the Forest Officer of the ' respondent State prevented the appellant and the Jagirdar from cutting the trees.
On the coming into force of the Madhya Pradesh Act 1 of 1951, the, interest of the Jagirdar in his estate vested in the respondent State.
The appellant instituted a suit in June 1954 against the respondent Stateand the Jagirdar for breach of contract and claimed compensation (i) for logs which were cut but which he could not remove; (ii) for logs which were cut but were stated to have 'been lost due to the negligence of the respondent; and (iii) logs from the standing timber which had not been cut or could not be cut by the appellant from the jagirdar 's villages.
The ' respondent State contested the suit on the ground inter alia that the deed could not be enforced against it because of the vesting of the Jagir under the Act in the State and that the contract created a mere personal liability against the Jagirdar.
The Trial Court granted the appellant a decree for compensation under all the heads claimed at a rate per log determined by the Court.
The High Court in appeal disallowed the appellant 's claim, under items (ii) and (iii).
In appeal to this Court by certificate it was contended on behalf of the appellant that the rate of compensation determined was inadequate; that the High Court erred in disallowing compensation four the logs which were cut *but were lost, and that it had wrongly disallowed the claim for value of logs of timber which the appellant was entitled to, but could not cut because of the restrictions imposed by the ' State.
HELD: Dismissing the appeal, (i) On the evidence, the High Court had rightly disallowed the claim in respect of logs cut but which were stated to have been lost.
(ii) Where a thing is attached to, or forms part of, land at the time of the contract and which is to be severed by the buyer, under section 18 of the the property in the thing passes in the absence of a contract to the contrary to the buyer on the severance of the thing from, the land.
Again under section 21 of the Act, even if there be: a contract for the sale of specific goods, but the seller is obliged under the terms of the contract to do something to the goods for the purpose of putting them into, a deliverable state, the property passes only when the thing agreed to be done is done and the buyer is informed thereof.
[453 D] In the present case the contract by its terms was for the sale of logs out of trees in the forest with a girth of two feet or more; but the timber had to be cut and had to be put in a deliverable state,.
Before the trees.
446 were cut and the logs appropriated to the contract, the estate of the Jagirdar vested in the State of Madhya Pradesh.
The, appellant 's claim to cut standing trees in the forests of the Jagir after they vested in the State was therefore rightly negatived.
[456 F G] Badische Anilin Fabrik vs Hickson, at p. 421; KurseH vs Timber Operators and Contractors Ltd., ; Chhotabhai Jethabhai Patel & Company vs The State of Madhya Pradesh, ; ; Shrimati Shantabat vs State of Bombay & Ors.
11959] S.C.R. 265; Mahadeo vs The State of Bombay, [1959] Supp.
(2) S.C.R. 339: .State of Madhya Pradesh vs Yakunuddin, [1963] S.C.R. 13; referred tO.
|
ON: Criminal Appeal No. 214 of 1971.
(Appeal by Special Leave from the judgment and Order dated 27 7. 1970 of the Andhra Pradesh High.
Court in Criminal Appeals Nos. 26 and 27/69).
7 1234SCI/76 604 P. Parmeswara Rao and G. Narayana Rao for the Appellant.
A. Subba Rao for the Respondents.
This appeal by special leave is directed against a judgment of the High Court of Andhra Pradesh.
It arises out of these facts.
In Rompicherla village, there were factions belonging to three major communities viz., Reddys, Kammas and Bhatrajus.
Rayavarapu (Respondent No. 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys.
In politics, the Reddys were supporting the Con gress Party, while Kammas were supporters of Swatantra Party.
There was bad blood between the two factions which. were proceeded against under section 107, Cr.
In the Panchyat elections of 1954, a clash took place between the two parties.
A member of the Kamma faction was murdered.
Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder.
Other incidents also ' took place in which these warring factions were involved.
So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967.
Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus.
In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their party men.
PW 1, a member of Bhatrajus faction has a cattle shed.
The passage to this cattle shed was blocked by the other party.
The deceased took PW 1 to Police Station Nekar ikal and got a report lodged there.
On July 22, 1968, the Sub Inspector of Police came to the village and inspected the disputed wail in the presence of the parties.
The Sub Inspector went away directing both the parties to come to the Police Station on the following morning so that a com promise might be effected.
Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under sections 324, 323 and 325, Penal Code was pending before a Magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.
On the morning of July 23, 1968, at about 6 30 a.m., PWs 1, 2 and the deceased boarded Bus No. AP 22607 at Rompicher la for going to Nekarikal.
Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus.
The accused had obtained tickets for proceeding to Narasaraopet.
When the bus stopped at Nekar ikal Cross Roads, at about 7 30 a.m., the deceased and his companions alighted for going to the Police Station.
The five accused also got down.
The deceased and PW 1 went towards a Choultry run by PW 4, While PW 2 went to the roadside to ease himself.
A1 and A2 went towards the Coffee Hotel situate near the Choultry.
From there, they picked up heavy sticks and went after the deceased into the Choultry.
On seeing the accused.
P W 1 ran away towards a hut nearby.
The deceased stood up.
605 He was an old man of 55 years.
He was not allowed to run.
Despite the entreaties made by the deceased with folded hands, A 1 and A 2 indiscriminately pounded the legs and arms of the deceased.
One of the by standers, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo.
The assailants angri ly retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious.
The accused then threw their sticks at the spot, boarded another vehicle, and went away.
occurrence was witnessed by PWs 1 to 7.
The victim was removed by PW 8 to Narasaraopet Hospital in a temporar.
There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 in juries, out of which, no less than 9 were (internally) found to be grievous.
They were: 1.
Dislocation of distal end of proximal phalanx of left middle finger.
Fracture of right radius in its middle.
Dislocation of lower end of right ulna.
Fracture of lower end of right femur.
Fracture of medial malleolus of right tibia.
Fracture.
of lower 1/3 of right fibula.
Dislocation of lower end of left ulna.
Fracture of upper end of left tibia.
Fracture of right patella.
Finding the condition of the injured serious, the Doctor sent information to the Judicial Magistrate for getting his dying declaration recorded.
On Dr. K. Reddy 's advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr. Sastri.
His dying declaration, exhibit P 5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m.
The de ceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.
The autopsy was conducted by Dr. P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cummulatively sufficient to cause death in the ordinary course of nature.
The cause of death, according to the Doctor, was shock and haemorrhage resulting from multiple injuries.
The trial Judge convicted A 1 and A 2 under section 302 as well as under section 302 read with section 34, Penal Code and sen tenced each of them to imprisonment for life.
On appeal by the convicts, the High Court altered their conviction to one under section 304, Pt.
II, Penal Code and reduced their sentence to 'five years rigorous imprison ment, each.
Aggrieved by the judgment of the High Court, the State has come in appeal to this Court after obtaining special leave.
A 1, Rayavarappu Punnayya (Respondent 1) has, as reported by his Counsel, died during the pendency of this appeal.
This information is not contradicted by the Counsel appearing for the State.
This 606 appeal therefore, in so far as it relates to A , abates.
The appeal ' against A 2 (Respondent 2), however, survives for decision. 'The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent, is 'murder ' or 'culpable homicide not amounting to murder '.
In the scheme of the Penal Code, 'culpable homicide ' is genus and 'murder ' its specie.
All 'murder ' is 'culpable homicide ' but not viceversa.
Speaking generally, 'culpable homicide ' sans 'special characteristics of murder ', is 'culpable homicide not amounting to.
murder '.
For the pur pose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide.
The first is, what may be called, culpable homicide of the first degree.
This is the gravest form of culpable homicide which is defined in section 300 as 'murder '.
The second may be termed as 'culpable homicide of the second degree '.
This is punishable under the l st part of section 304.
Then, there is 'culpable homicide of the third degree. ' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades.
Culpa ble homicide of this degree is punishable under the second Part of section 304.
The academic distinction between 'murder ' and 'culpable homicide not amounting to murder ' has vexed the courts for more than a century.
The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions.
The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of sections 299 and 300.
The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300 A person commits culpable homicide Subject to certain if the act by which the death exceptions culpable is caused is done homicide is murder if the act by which the death caused is done INTENTION (a) with the intention of causing death: (1) with the intention of causing death; or or (b) with the intention of (2) with the intention of causing such bodily injury causing such bodily inju as is likely to cause death; ry as the offender knows to or be likely to cause the death of person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or 607 KNOWLEDGE (c) with the knowledge that (4) with the knowledge that the act likely to cause death.
the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of using death or such injury as is mentioned above.
Clause (b) of section 299 corresponds with cls.
(2) and (3) of section 300.
The distinguishing feature of the mens rea requi site under cl.
(2) is the knowledge possessed by the offend er regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that ' such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition.
It is noteworthy that the 'intention to cause death ' is not an essential requirement of el.
Only the intention of causing the bodily injury coupled with the offender 's knowledge of the likelihood of such injury caus ing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause.
This aspect of cl.
(2) is borne out by illustration (b) appended to section 300.
Clause (b) of section 299 does not postulate any such knowl edge on the part of the offender.
Instances of cases falling under cl.
(2) of section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the he,art, as the case may be.
If the assailant had no such knowledge about the disease or special frailty of the victim, nor an inten tion to.
cause death or bodily injury sufficient 'in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
In clause (3) of section 300, instead of the words 'likely to cause death ' occurring in the corresponding el.
(b) of section 299, the words "sufficient in the ordinary course of nature" have been used.
Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death.
The distinction is fine but real, and, if over looked, may result 'in miscarriage of justice.
The differ ence between cl.
(b) of section 299 and cl.
(3) of section 300 is one of the degree of probability of death resulting from the intended bodily injury.
To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.
The word "likely" in cl.
(b) of section 299 conveys the sense of 'probable ' as distinguished from a mere possibili ty.
The words "bodily injury. sufficient in the ordinary course of nature to cause death" mean that 608 death will be the "most probable" result of the injury having regard to the ordinary course of nature.
For cases to fall within cl.
(3), it is not necessary that the offender intended to cause death, So long as death ensues from the intentional.
bodily injury or injuries sufficient to cause death in the ordinary course of nature.
Rajwant and anr.
vs State of Kerala(2) is an apt illustra tion of this point.
In Virsa Singh vs The State of Punjab, (2) Vivian Bose j. speaking for this Court, explained the meaning ' and scope of Clause (3), thus (at p. 1500): "The prosecution must prove the following facts before it can bring a case under section 300, 3rdly '.
First, it must establish, quite objective ly, that a bodily injury is present;.
secondly the nature of the injury must be proved.
These are purely objective investigations.
It must be proved that there was an intention to inflict that particular injury, that is to say,.
that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be ,proved that the injury of the type just described made up of the three elements set out above was suffi cient to cause death in the ordinary course of nature.
This part of the enquiry is purely objec tive and inferential and has nothing to do with the intention of the offender." Thus according to the rule laid down in Virsa Singh 's case (supra) even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder.
Illustration (c) appended to section 300 clearly brings out this point.
Clause (c) of section 299 and cl.
(4) of section 300 both require knowledge of the probability of the causing death.
It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses.
It will be sufficient to say that cl.
(4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty.
Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder ' or 'culpable homicide not.
amounting to murder, ' on ,the facts of a case, it will ' (1) A.I.R. 1966 S.C. 1874.
(2) ; 609 be convenient for it to approach the problem in three stages.
The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299.
If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code is reached.
This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder ' contained in section 300.
If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder ', punishable under the first or the second part of section 304, depending.
respectively, on whether the second or the third Clause of section 299 is applicable.
If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in section 300, the offence would still be 'culpable homicide not amounting to murder ' punishable under the First Part of section 304, Penal Code.
The above are only broad guidelines and not cast iron imperatives.
In most cases, their observance will facilitate the task of the court.
But sometimes the facts are so inter twined and the second and the third stages so tele scoped into each other, that it may not be convenient,to give a separate treatment to the matters involved in the second and third stages.
Now let us consider the problem before us in the light of the above enunciation.
It is not disputed that the death of the deceased was caused by the accused, there being a direct causal connec tion between the beating administered by A 1 and A 2 to the deceased and his death.
The accused confined the beating to.
the legs and arms of the deceased, and therefore, it can be said that they perhaps had no "intention to cause death" within the contemplation clause (a) of section 299 or cl.
(1) of section 300.
It is nobody 's case that the instant case falls within el.
(4) of section 300.
This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of immi nent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy.
Indeed, in all fairness, Counsel for the appellant has not contended that the case would fall under el.
(4) of section 300.
His sole contention is that even if the accused had no intention to cause death, the facts estab lished fully bring the case within the purview of cl.
(3) of section 300 and as such the offence committed is murder and nothing less.
In support of this contention reference has been made to Andhra vs State of Rajasthan(1) and Rajwant Singh vs State of Kerala (supra).
As against this, Counsel for the respondent submits that since the accused selected only non vital parts of the body of the deceased, for (1) A.I.R. 1966 S.C. 148.
610 inflicting the injuries, they could not be attributed the mens rea requisite for bringing the case under clause (3) of section 300; at the most, it could be said that they had knowl edge that the injuries inflicted by them were likely to cause death and as such the case falls within the third clause of section 299, and the offence committed was only "culpa ble homicide not amounting to murder", punishable under section 304, Part 11.
Counsel has thus tried to support the reason ing of the High Court.
The trial Court, 'as 'already noticed, had convicted the respondent of the offence of murder.
It applied the rule in Virsa Singh 's case (supra).
and the ratio of Anda vs State and held that the case was clearly covered by clause Thirdly of section 300.
The High Court has disagreed with the trail Court and held that the offence was not murder but one under section 304, Pt.
The High Court reached this conclusion on the following reasoning: (a) "There was no premeditation in the attack.
It was almost an impulsive act".
(b) "Though there were 21 injuries, they were all on the arms and legs and not on the head or other vital parts the body." (c) "There was no compound fracture to result in heavy haemorrhage; there must have been some bleeding".
(which) "according to PWI might have stopped with in about half an hour to one hour." (d) "Death that had occurred 21 hours later, could have been only due to shock and not due to haemorrhage also, as stated by PW 12. who conducted the autopsy.
This reference is strengthened by the evidence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein.
From the injuries inflicted the accused therefore could not have intended to cause death.
" (e) "A1 and A2 had beaten the deceased with heavy sticks.
These beatings had resulted in fracture of the right radius, right femur, right tibia, right fibula, right patalla and left tibia and dislocation of. , therefore considerable force must have been used while inflicting the blows.
Accused 1 and 2 should have therefore inflicted these injuries with the knowledge that they are likely, by so beating, to cause the death of the deceased, though they might not have had the knowledge that they were so imminent ly dangerous that in all probability their acts would result in such injuries as are likely to cause the death.
The offence . is therefore culpable homicide falling under . section 299, I.P.C. punishable under section 304 Part II and not murder.
" 611 With respect we are unable to appreciate and accept this reasoning.
With respect, to be inconsistent, erroneous and largely speculative,It appears to us To say that the attack was not premeditated or pre planned is not only factually incorrect but also at war with High Court 's own finding that the injuries were caused to the deceased in furtherance of the common intention of A 1 and A 2 and therefore, section 34, I.P.C. was applicable.
Fur ther, the finding that there was no compound fracture, no heavy haemorrhage and the cause of the death was shock, only, is not in accord with the evidence on the record.
The best person to speak about haemorrhage and the cause of the death was Dr. P. section Sarojini (PW 12) who had conducted the autopsy.
She testified that ,the cause of death of the deceased was "shock and haemorrhage due to multiple in juries".
This categorical opinion of the Doctor was not assailed in cross examination.
In the post mortem examina tion report exhibit P 8, the Doctor noted that the heart of the deceased was found full of clotted blood.
Again in injury No. 6, which also was an internal fracture, the bone was visible through the wound.
Dr. D.A. Sastri, PW 26, had testified that he was treating Kotamraju injured of shock, not only by sending fluids through his vein, but also blood.
This part of his statement wherein he spoke about the giving of blood transfusion to the deceased, appears to have been overlooked by the High Court.
Dr. Kondareddy, PW 11, who was the first Medical Officer to examine the injuries of the deceased, had noted that there was bleeding and swelling around injury No. 6 which was located on the left leg 3 inches above the ankle.
Dr. Sarojini, PW 12, found fracture of the left tibia underneath this injury.
There could therefore, be no doubt that this was a compound fracture.
P.W. 11 found bleeding from the other abraded injuries, also.
He however found the condition of the injured grave and immediately sent an information to the Magistrate for recording his dying declaration.
PW 11 also advised immediate removal of the deceased to the bigger Hospital at Guntur.
There, also, Dr. Sastri finding that life in the patient was ebbing fast, took immediate two fold action.
First, he put the patient on blood transfusion.
Second, he sent an intimation for recording his dying declaration.
A Magistrate (PW 10) came there and recorded the statement.
These are all tell tale circumstances which unerring by show that there was substantial haemorrhage from some of the injuries involving compound fractures.
This being the case, there was absolutely no reason to doubt the sworn word of the Doctor, (PW 12) that the cause of the death was shock and haemorrhage.
Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi 's book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr. Sarojini in cross examination, they appear to have derived support from the same for the argument that fractures of such bones "are not ordinarily dangerous"; therefore, the accused could not have intended cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.
It will be worthwhile to extract that quotation from Mody, as a reference to the same was made by Mr. Subba Rao before us, also.
612 According to Mody: "Fractures are not ordinarily dangerous unless they are compound, when death may occur from ,loss of blood, if a big vessel is wounded by the split end of a fractured bone.
" It may be noted, in the first place, that this opinion of the learned author is couched in too general and wide language.
Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life.
Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving haemorrhage, are ordinarily dangerous.
We have seen, that some of the fractures under neath the injuries of the deceased, were compound fractures accompanied by substantial haemorrhage.
In the face of this finding, Mody 's opinion, far from advancing the conten tion of the defence, discounts it.
The High Court has held that the accused had no inten tion to cause death because they deliberately avoided to hit any vital part of the body, and confined the beating to the legs and arms of the deceased.
There is much that can be said in support of this particular finding.
But that find ing assuming it to be correct does not necessarily take the case out of the definition of 'murder '.
The crux of the matter is, whether the facts established bring the case within Clause Thirdly of section 300.
This question further narrows down into a consideration of the two fold issue :.
(i) Whether the bodily injuries found on the deceased were intentionally inflicted by the accused ? (ii) If so, were they sufficient to cause death in the ordinary course of nature ? If both these elements are satisfactorily established, the offence will be 'murder ', irrespective of the fact whether an intention on the part of the accused to cause death, had or had not been proved.
In the instant case, the existence of both these ele ments was clearly established by the prosecution.
There was bitter hostility between the warring factions to which the accused and the deceased belonged.
Criminal litigation was going on between these factions since long.
Both the factions had been proceeded against under section 107, Cr.
The accused had therefore a motive to beat the deceased.
The attack was premeditated and pre planned, although the interval between the conception and execution of the plan was not very long.
The accused had purchased tickets for going further to Narasaraopet, but on seeing the deceased, their bete noir, alighting at Nekarikal, they designedly got down there and trailed him.
They selected heavy sticks about 3 inches in diameter, each, and with those lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms causing no less than 19 or 20 injuries, smashing at least seven bones.
mostly major bones, and dislocating two more.
The beating was administered in a brutal and reckless manner.
It was pressed home with an unusually fierce, cruel and sadistic determination.
When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo, the only echo it could draw from the assailants, 613 a minacious retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious.
May be, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead.
But this lone circumstance cannot take this possible inference to the plane of positive proof.
Nevertheless, the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the in juries caused by the accused to the deceased were intention ally inflicted, and were not accidental.
Thus the presence of the first element of Clause Thirdly of section 300 had been cogently and convincingly established.
This takes us to the second element of Clause (3).
Dr. Sarojini, PW 12, testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death.
In her opinion which we have found to be entirely trustworthy the cause of the death was shock and haemorrhage due to the multiple injuries.
Dr. Sarojini had conducted the post mortem examination of the deadbody of the deceased.
She had dissected the body and examined the injuries to the internal organs.
She was therefore the best informed expert who could opine with authority as to the cause of the death and as to the suffi ciency or otherwise of the injuries from which the death ensued.
Dr. Sarojini 's evidence on this point stood on a better footing than that of the Doctors (PWs.
11 and 26) who had externally examined the deceased in his life time.
Despite this position, the High Court has not specifically considered the evidence of Dr. Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature.
There is no reason why Dr. Sarojini 's evidence with regard to the second element of Clause (3) of section 300 be not accepted.
Dr. Sarojini 's evidence satisfacto rily establishes the presence of the second element of this clause.
There is therefore, no escape from the conclusion, that the offence committed by the accused was 'murder ', notwith standing the fact that the intention of the accused to cause death has not been shown beyond doubt.
In Anda vs State of Rajasthan (supra), this Court had to deal with a very similar situation.
In that case, several accused beat the victim with sticks after dragging him into a house and caused multiple injuries including 16 lacerated wounds on the arms and legs, a hematoma on the forhead and a bruise on the chest.
Under these injuries to the arms and legs lay fractures of the right and left ulnas, second and third metacarpal bones on the right hand and second metacar pal bone of the left hand, compound fractures of the right tibia and right fibula.
There was loss of blood from the injuries.
The Medical Officer who conducted the autopsy opined that the cause of the death was shock and syncope due to multiple injuries; that all the injuries collectively could be sufficient to cause death in the ordinary course of nature, but individually none of them was so sufficient.
614 Question arose whether in such a case when no signifi cant injury had been inflicted on a vital art of the body, and the weapons used were ordinary lathis, and the accused could not be said to have the intention of causing death, the offence would be 'murder ' or merely 'culpable homicide not amounting to murder '.
This Court speaking through Hidayatullah J. (as he then was), after explaining the comparative scope of and the distinction between sections 299 and 300, answered the question in these terms: "The injuries were not on a vital part of the body and no weapon was used which can be described as specially dangerous.
Only lathis were used.
It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of section 300.
At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused.
The number of injuries shows that every one joined in beating him.
It is also clear that the assailants aimed at breaking his arms and legs.
Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature, even if it cannot be said that his death was intended.
This is suffi cient to bring the, case within 3rdly of section 300." The ratio of Anda vs State of Rajasthan (supra) applies in full force to the facts of the present case.
Here, a direct causal connection between the act of the accused and the death was established.
The injuries were the direct cause of the death.
No secondary factor such as gangrene, tetanus etc., supervened.
There was no doubt whatever that the beating was premeditated and calculated.
Just as in Anda 's case, here also, the aim of the asailants was to smash the arms and legs of the deceased, and they succeeded in that design.
causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms.
While in Anda 's case, the sticks used by the assailants were not specially dangerous, in the instant case they were unusually heavy, lethal weapons.
All these acts of the accused were pre planned and intentional, which, considered objectively in the light of the medical evidence.
were sufficient in the ordinary course of nature to cause death.
The mere fact that the beating was designedly con fined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually suffi cient in the ordinary course of nature to cause death, will not exclude the application of Clause 3rdly of section 300.
The expression "bodily injury" in Clause 3rdly includes also its plural, so that the clause would cover a case where all the injuries intentionally, caused by the accused are cumula tively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency.
The sufficiency spoken of in this clause.
as a|ready noticed, is the high probability of death in the ordinary course of nature, and if such suffi ciency exists and death is caused and the injury causing it is intentional, the case would fail under Clause 3rdly of section 300.
All the conditions which are a pre requisite for the applicability of this clause have been established and the offence committed by the accused in the instant case was 'murder '.
615 For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused respondent from one under section 302, 302/34, to that under section 304, Part II, Penal Code.
Accordingly we allow this appeal and restore the order of the trial Court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life.
Respondent 2, if he is not already in jail shall be arrested and committed to prison to serve out the sentence inflicted on him.
P.B.R. Appeal allowed.
| The respondent, who was an unsuccessful candidate in the general election to the State Assembly, impugned the appel lant 's election on the ground that he had committed a cor rupt practice within the meaning of section 100(1)(b) of the Representation of the People Act, 1950, in that he had printed and circulated a pamphlet maligning the respondent.
Allowing the petition, the High Court set aside the elec tion.
In appeal to this Court it was contended on behalf of the appellant as a preliminary objection (i) that since the election petition served on the appellant was not accompa nied by a copy of the impugned pamphlet, the petition _was liable to be dismissed and (ii) that the evidence of the Manager (P.W. 24) of the Press in which the pamphlet had been printed, being that of an accomplice could not be relied upon.
Dismissing the appeal, HELD: (1) (a) The petition could not have been dismissed in view of section 99 of the Code of Civil Procedure which clear ly says that a defect which does not affect the merits of the case or the jurisdiction of the Court cannot invalidate the decision.
[529 D] (b) It is well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition.
[529 D] Prabhu Narayan vs
A.K. Srivastava; , re ferred to.
In the instant case, the allegations of corrupt practice and particulars thereof given in the election petition were sufficiently clear and precise.
The affidavit conforms to the form prescribed for the purpose.
Moreover, the appel lant had an easy access to the Court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leafet.
[529 C] (2) (a) The mere fact that P.W. 24 printed the offending leaflet could not clothe him with the character off a guilty associate or partner in the crime of corrupt practice within the meaning of section 123(4) of the Act.
[530 D] (b) Moreover, the omission on the part of P.W. 24 to send to the concerned District Magistrate a copy each of the declaration and the printed material as required by section 127 A(2) of the Act may lay him open to prosecution for art offence under sub section
(4) of that section but would not make him an accomplice or render his statement untrustworthy.
[530 F] In the instant case, P.W. 24 was neither an election agent of the appellant nor was there any allegation that he published the offending leaflet.
Despite the searching cross examination to which he was subjected, his credit had remained unshaken.
[530 E]
|
Civil Appeals Nos. 976 and 977 of 1964.
Appeals from the judgment and decree dated March 26, 1964 of the Patna High Court in Election Appeals Nos. 8 and 10 of 1963.
C.B. Agarwala, Jagdish Panday, Chinta Subbarao, M. Rajagopalan and B.P. Jha, for the appellant, (In both the appeals).
K.P. Varma and D. Goburdhun, for the respondent (In both the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
Both these appeals are brought by certificate against the judgment and decree of the High Court of Judicature at Patna dated March 26, 1964, pronounced in Election Appeals Nos. 8 and 10 of 1963.
The appellant Kedar Pandey and the respondent Narain Bikram Sah '(hereinafter called Narain Raja) were the contesting candidates in the year 1962 on behalf of the Congress and Swatantra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran.
The nomination papers of the appellant and the respondent and two others Parmeshwar Prasad Roy and Suleman Khan were accepted by the Returning Officer without any objection on January 22, 1962.
Later on the two candidates Parmeshwar Prasad Roy and Suleman Khan withdrew their candidatures.
After the poll the respondent, Narain Raja was declared elected as member of the Bihar Legislative Assembly by majority of valid votes.
On April 11, 1962 Kedar Pandey filed an election petition challenging the election of the respondent.
It was alleged by Kedar Pandey that the respondent was not duly qualified under article 173 of the Constitution of India to be a candidate for election as he was not a citizen of India.
According to Kedar Pandey the respondent, his parents and grand parents were all born in Nepal and, therefore, on the date of the election, the respondent Narain Raja was not qualified to be chosen to fill the Assembly seat for which he had been declared to have been elected.
According to Kedar Pandey the respondent was related to the royal family of Nepal and the father of the respondent Rama Raja owned about 43 bighas of land and a house at Barewa in Nepal in which the respondent had a share along with his three other brothers.
The election petition was contested by the respondent who said that he was an Indian citizen and there was no disqualification incurred under article 173 of the Constitution.
The further case of the respondent was that he had lived in India since his birth and that he was a resident of Ramnagar in the district of Champaran and not of Barewa in Nepal.
The respondent claimed that he was born in Banaras and not at Barewa.
795 Upon these rival contentions it was held by the Tribunal that the respondent Narain Raja was not a citizen of India and, therefore, was not qualified under article 173 of the Constitution for being chosen to fill a seat in the Bihar Legislative Assembly.
The Tribunal, therefore, declared that the election of the respondent was void.
But the Tribunal refused to make a declaration that Kedar Pandey was entitled to be elected to Bihar Legislative Assembly for that Constituency.
Both the appellant and the respondent preferred separate appeals against the judgment of the Election Tribunal to the High Court of Judicature at Patna.
The High Court in appeal set aside the judgment of the Tribunal and upheld the election of the respondent Narain Raja.
The High Court found, on examination of the evidence, that Narain Raja, the respondent before us, was born in Banaras on October 10, 1918 and that the respondent was living in India from 1939 right upto 1949 and even thereafter.
The High Court further found that long before the year 1949 Narain Raja had acquired a domicile of choice, in Indian territory and, therefore, acquired the status of a citizen of India both under article 5(a) and (c) of the Constitution.
On these findings the High Court took the view that Narain Raja was duly qualified for being elected to the Bihar Legislative Assembly and the election petition filed by the appellant Kedar Pandey should be dismissed.
The main question arising for decision in this case is whether the High Court was right in its conclusion that the respondent Narain Raja was a citizen of India under article 5 of the Constitution of India on the material date.
The history of the family of Narain Raja is closely connected with the history of Ramnagar estate.
It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to.
Shri Prahlad Sen after whose death the estate came into the possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja.
After the death of Mohan Raja the estate came into the possession of Rani Chhatra Kumari Devi, the vidow of Mohan Raja, and after the death of Rani Chhatra Kumari Devi, the estate came into the possession of Rama Raja alias Mohan Bikram Sah, the father of the respondent Narain Raja.
It is in evidence that the daughter of Prahlad Sen was married to Shri Birendra Vikram Sah, the father of Mobart Raja.
Mohan Raja died without any male issue but during his lifetime he had adopted Rama Raja, the father of the respondent and by virtue of a will executed by Mohan Raja in the year 1904 in favour of his wife Rani Chhatra Kumari Devi the Rani became entitled to the Ramnagar estate on the death of Mohan Raja (which took place in 1912), in preference to the adopted son Rama Raja since the properties belonged to Mohan Raja in his absolute right and not as ancestral properties.
After the death of Rani L/P(D)5SCI 12 796 Chhatra Kumari Devi in 1937 Rama Raja came into the possession of the Ramnagar estate.
In the year 1923, Rani Chhatra Kumari Devi had filed R.S. No. 4 of 1923 against Rama Raja the Court of Sub Judge, Motihari with regard to a village which Rama Raja held in Ramnagar estate on the basis of a Sadhwa Patwa lease.
Rama Raja in turn filed T.S. No. 34 of 1924 in the Court of Subordinate Judge of Motihari against Rani Chhatra Kumari Devi and others claiming title to Ramnagar estate and for possession of the same on the basis of his adoption by Mohan Raja.
The Title Suit and the Rent Suit were heard together by the Additional Sub Judge, Motihari who, by his judgment dated August 18, 1927 decreed the Title Suit filed by Rama Raja and dismissed the Rent Suit filed by Rani Chhatra Kumari Devi.
There was an appeal to the High Court of Patna which dismissed the appeal.
Against the judgment of the High Court appeals were taken to the Judicial Committee of the Privy Council.
The appeal was decided in favour of Rani Chhatra Kumari Devi and the result was that the Title Suit filed by Rama Raja was dismissed and Rent Suit filed by Rani Chhatra Kumari Devi was decreed.
In the course of judgment the Judicial Committee did not disturb the finding of the trial Court that Rama Raja was an adopted son of Shri Mohan Vikiram Sah alias Mohan Raja and accepted that finding as correct; but the Judicial Committee held that Ramnagar estate was not the ancestral property of Mohan Raja, but he got that property by inheritance, he being the daughter 's son of Prahlad Sen, the original proprietor of that estate.
In view of this circumstance, the Judicial Committee held that though Rama Raja was the adopted son of Mohan Raja, Rama Raja was not entitled to the estate in view of the will executed by Mohan Raja in favour of Rani Chhatra Kumari Devi in the year 1904.
It appears that in the year 1927 Rama Raja had taken possession of Ramnagar estate and got his name registered in Register D and remained in possession till the year 1931 when he lost the suit in Privy Council.
After the decision of Privy Council, Rani Chhatra Kumari Devi again came into possession of Ramnagar estate and continued to remain in possession till she died in 1937.
It is in evidence that after the death of Rani Chhatra Kumari Devi, Rama Raja obtained possession of Ramnagar estate and continued to remain in possession thereof from 1937 till 1947, the year of his death.
There is evidence that Rama Raja died in Bombay and his dead body was cremated in Banaras.
It is also in evidence that during the lifetime of Rama Raja there was a partition suit in the year 1942 No.
40 of 1942 for the partition of the properties of the Ramnagar estate among Rama Raja and his sons including the respondent.
This suit was filed on September 29, 1942 in the Court of the Subordinate Judge at Motihari.
A preliminary decree exhibit
1(2) was passed on April 16, 1943 on compromise and the final decree Ex 1(1) in the suit 797 was passed on May 22, 1944.
From the two decrees it appears that Ramnagar.
estate was comprised of extensive properties including zamindariinterest in a large number of villages and the.
estate 'had an extensive area of Bakasht lands.
By the said partition the estate was divided among the co sharers but certain properties including forests in the estate were left joint.
On behalf of the appellant Mr. Aggarwala put forward the argument that the High Court was not justified in holding that Narain Raja was born in Banaras in the year 1918.
According the case of the appellant Narain Raja was born at a place called Barewa in Nepal.
In order to prove his case the appellant examined two witnesses Sheonath Tewari (P.W. 18) and N.D. Pathak (P.W. 15).
The High Court held that their evidence was acceptable.
There was also a plaint (exhibit 8) produced on behalf the appellant to show that Narain Raja was born at Barewa.
This plaint was apparently filed in a suit brought by the respondent for the realisation of money advanced by the respondent 's mother to one Babulal Sah.
The place of birth of the respondent is mentioned in this plaint as Barewa Durbar.
The High Court did not attach importance to exhibit 8 because it took the view that the des cription of the place of birth given in the document was only for the purpose of litigation.
It further appears from exhibit 8 that it was not signed by the respondent but by one Subhan Mian Joiaha described as 'Agent '.
On behalf of the respondent R.W. 9 G. section Prasad was examined to prove that Narain Raja was born at Banaras.
The High Court accepted the evidence of this witness and also of the respondent himself on this point.
It was submitted by Mr. Aggarwala that there were two circumstances which indicate that the respondent could not have been born at Banaras: In the first place, it was pointed out, the municipal registers of Banaras for the year 1918 exhibit
2 series did not mention the birth of the respondent.
It was explained on behalf of the respondent that house at Mamurganj in which the respondent was born was not included within the limits of the municipality in the year 1918, and that the omission of the birth of the respondent in the municipal registers was therefore, of no significance.
It was contended behalf of the appellant that there was litigation with regard to properties of Ramnagar estate between the respondent 's father Rani Chhatra Kumari Devi and therefore the evidence of P.W. G.S. Prasad that Rama Raja was living with Rani Chhatra Kurnari Devi at Ramnagar even during her lifetime cannot be accepted as true.
It was, therefore, suggested that it was highly improbable that Narain Raja should have been born at Banaras in the year 1918, as alleged, in the house belonging to Ramnagar estate.
We do not, however, think it necessary to express any concluded opinion on this question of fact but proceed to decide the case the assumption that Narain Raja was not born in the territory ,of India, in the year 1918.
The reason is that the place of birth 798 of Narain Raja has lost its importance in this case in view of the concurrent findings of both the High Court and the Tribunal that for a period of 5 years preceding the commencement of the Constitution Narain Raja was ordinarily resident in the territory of India.
Therefore the requirement of article 5(c) of the Constitution is fulfilled.
Mr. Aggarwala on behalf of the appellant did not challenge this finding of the High Court.
It is.
therefore, manifest that the requirement of article 5(c) of the Constitution has been established and the only question remaining for consideration is the question whether Narain Raja had his domicil in the territory of India at the material time.
Upon this question it was argued before the High Court on behalf of the respondent that the domicil of origin of Mohan Raja may have been in Nepal but he had acquired a domicile of choice in India after inheriting Ramnagar Raj from his maternal grandfather Prahlad Sen.
It was said that Mohan Raja had settled down in India and had married all his 4 Ranis in Ramnagar.
It was argued, therefore, that at the time when Mohan Raja had adopted Rama Raja in 1903 Mohan Raja 's domicil of choice was India.
It was said that by adoption in 1903 Rama Raja became Mohan Raja 's son and by fiction it must be taken that Rama Raja 's domicil was india as if he was Mohan Raja 's son.
It was contended in the alternative that whatever may have been Rama Raja 's domicil before 1937 when Rani Chhatra Kumari Devi died, Rama Raja acquired a domicil of choice in India when he came to India on the death of Rani Chhatra Kumari Devi.
It was also stated on behalf of the respondent that Rama Raja remained in possession of the Ramnagar estate until his death in 1947.
The High Court, however.
held, upon examination of the evidence, that there was no material on the record to decide the question of Mohan Raja 's domicil.
It was also held by the High Court that it was not possible to ascertain from the evidence whether there was any intention of Rama Raja to settle down in India and make it his permanent home.
In any event.
Narain Raja was born in the year 1918 and unIess the domicil of Rama Raja in 1918 was ascertained the domicil of origin of Narain Raja will remain unknown.
The High Court therefore, proceeded upon the assumption that Narain Raja had his domicil of origin in Nepal: and examined the evidence to find out whether Narain Raja had deliberately chosen the domicil of choice in India in substitution for the domicil of origin.
The crucial question for determination in this case, therefore.
is whether Narain Raja had acquired the domicil of choice in India.
The law on the topic is well established but the difficulty is found in its application to varying combination of circumstances in each case.
The law attributes to every person at birth a domicil 799 which is called a domicil of origin.
This domicil may be changed and a new domicil, which is called a domicil of choice, acquired; but the two kinds of domicil differ in one respect.
The domicil of origin is received by operation of law at birth; the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi.
The domicil of origin is determined by the domicil, at the time of the child 's birth, of that person upon whom he is legally dependent.
A legitimate child born in a wedlock to a living father receives the domicil of the father at the time of the birth; a posthumous legitimate child receives that of the mother at that time.
As regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for himself a domicil of choice by the fact of residing in a country other than that of his domicil of origin with the intention of continuing tO reside there indefinitely.
For this purpose residence is a mere physical fact, and means no more than personal presence in a locality, regarded apart from any of the circumstances attending it.
If this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material.
The state of mind, or animus manendi, which is required demands that the person whose domicil is the object of the inquiry should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence, or, in effect, he should have formed a deliberate intention to settle there.
It is also well established that the onus of proving that a domicil has been chosen in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost.
The domicil of origin continues unless a fixed and settled intention of abandoning the first domicil and aquiring another as the sole domicil is clearly shown (see Winarts vs Attorney General.
(1) In Munro vs Munro(2) Lord Cottonham states the rule as follows: "The domicil of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and acquiring another as his sole domicil.
To effect this abandonment of the domicil of origin, and substitute another in its place, it required animo et facto, that is, the choice of a place, actual residence in the place then chosen and that it Should be the principal and permanent residence, the spot where he had placed larem rerumque ac fortunarum suarum summam.
In fact, there must be both residence and intention.
Residence alone has no effect, per so, though it may be most important as a ground from which to infer intention.
" (1) (2) 7 C.I. & Fin .
876. 800 In Aikman vs Aikman(1), Lord Campbell has discussed the question of the effect on domicil of an intention to return to the native country, where such intention is attributable to an undefined and remote contingency.
He said: "If a man is settled in a foreign country, engaged in some permanent pursuit requiring his residence there, a mere intention to return to his native country on a doubtful contingency, will not prevent such a residence in a foreign country from putting an end to his domicil of origin.
But a residence in a foreign country for pleasure, lawful or illicit, which residence may be changed at any moment, without the violation of any contract or any duty, and is accompanied by an intention of going back to reside in the place of birth, or the happening of an event which in the course of nature must speedily happen, cannot be considered as indicating the purpose to live and die abroad.
" On behalf of the appellant Mr. Aggarwala relied on the decision.
of the House of Lords in Moorhouse vs Lord(2) in which it was held that in order to lose a domicil of origin, and to acquire a new domicil, a man must intend quatenus in illo exuere patriam and there must be a change of nationality, that is natural allegiance R is not enough for him to take a house in the new country, even with the probability and the belief that he may remain there all the days of his life.
But the principle laid down in this case was discussed in Udny vs Udny(3) which decision is the leading authority on what constitute a domicil of choice taking the place of a domicil of origin.
It is there pointed out by Lord Westbury that the expressions used in Moorhouse vs Lord(2), as to the intent exuere patriam, are calculated to mislead, and go beyond the question of domicil.
At page 458 Lord Westbury states: "Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the intention of continuing to reside there for an unlimited time.
This is description of the circumstances which create or constitute a domicil and not a definition of the term.
There must be residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness, and it must be a residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation.
It is true that residence, originally temporary or intended for a limited (1) 3 Mac Q., H.L.C. 854.
(2) 10 H.L. Cas. 272.
(3) L.R. 1 H.L. Sc.
801 period, may, afterwards become general and unlimited; and in such a case, so soon as the change of purpose, or animus manendi, can be inferred, the fact of domicil is established .
" In the next case Doucet vs Geoghegan (1) the Court of Appeal decided that the testator had acquired an English domicil; and one of the main facts relied on was that he had twice married in England in a manner not conforming to the formalities which are required by the French Law for the legalisation of marriages of Frenchmen in a foreign country.
James L. J. stated as follows: "Both his marriages were acts of unmitigated scoundrelism, if he was not a domiciled Englishman.
He brought up his children in this country; he made his will in this country, professing to exercise testamentary rights which he would not have if he had not been an Englishman.
Then with respect to his declarations, what do they amount to? He is reported to have said that when he had made his fortune he would go back to France.
A man who says that, is like a man who expects to reach the horizon and finds it at last no nearer than it was at the beginning of his journey.
Nothing can be imagined more indefinite than such declarations.
They cannot outweigh the facts of the testator 's life.
" In our opinion, the decisions of the English Courts in Udny vs Undy(3) and Doucet vs Geoghegan(1) represent the correct law with regard to change of domicil of origin.
We are of the view that the, only intention required for a proof of a change of domicil is an intention of permanent residence.
In other words, what is required to be established is that the person who is alleged to have changed his domicil of origin has voluntarily fixed the habitation of himself and his family in the new country, not for a mere special of temporary purpose, but with a present intention of making it his permanent home.
Against this background of law we have to consider the facts in the present case for deciding whether Narain Raja had adopted India as his permanent residence with the intention of making a domicil of choice there.
In other words, the test is whether Narain Raja had formed the fixed and settled purpose of making his home in India with the intention of establishing himself and his family in India.
(1) 9 Ch.
(2) L.R. 1 H.L. So.
802 The following facts have been either admitted by the parties found to be established in this case.
Narain Raja was educated in Calcutta from 1934 to 1938.
From the year 1938 onwards Narain Raja lived in Ramnagar.
After Rama Raja 's death in 1947 Narain Raja continued to live in Ramnagar, being in possession of properties obtained by him under compromise in 1944.
In the course of his statement Narain Raja deposed that his father had built a palace in Ramnagar between 1934 and 1941 and thereafter Narain Raja himself built a house at Ramnagar.
Before he had built his house, Narain Raja lived in his father 's palace.
There is the partition suit between Narain Raja and his brothers in the year 1942.
Exhibits 1(2) and 1(1) are the preliminary and final decrees granted in that suit.
After the partition Narain Raja was looking after the properties which were left joint and was the manager thereof.
The extensive forests of Ramnagar estate were not partitioned and they had been left joint.
Narain Raja used to make settlement of the forests on behalf of the Raj and pattas used to be executed by him.
After partition, he and his wife acquired properties in the district of Champaran, in Patna and in other places.
Narain Raja and his wife and children possessed 500 or 600 acres of land in the district of Champaran.
Narain Raja managed these properties from Ramnagar.
He had also his houses in Bettiah, Chapra, Patna and Benaras.
The forest settlements are supported by Exhibits X series, commencing from 1943, and by exhibit W of the year 1947.
Then, there are registered pattas excluded by Narain Raja of the year 1945, which are Exs.
W/3, W/4, and W/5.
There are documents which prove acquisition of properties in the name of Narain Raja 's wife F(D, F(2).
F(3) and F(5).
Exhibit F(4) shows the purchase of 11 bighas and odd land at Patna by Narain Raja.
It is also important to notice that Narain Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by the Governor General of India and he is described in that Passport as Indian by birth and nationality and his address is given as Ramnagar of Champaran district.
In the course of his evidence Narain Raja said that he had been to Barewa for the first time with his father when he was 10 or 12 years old.
He also said that he had not gone to Barewa for ten years before 1963.
The High Court considered that for the determination of the question of domicil of a person at a particular time, the course of his conduct and the facts and circumstances before and after that time are relevant.
We consider that the view taken by the High Court on this point is correct and for considering the domicil of Narain Raja on the date of coming into force of the Constitution of India his conduct and facts and circumstances subsequent to the time should also be taken into account. 'This view is borne 803 out by the decision of the Chancery Court in In re Grove Vaucher vs The Solicitor to the Treasury(1) in which the domicil of one Marc Thomegay in 1744 was at issue and various facts and circumstances after 1744 were considered to be relevant.
At page 242 of the report Lopes, L.J. has stated: "The domicil of an independent person is constituted by the factum of residence in a country, and the animus manendi, that is, the intention to reside in that country for an indefinite period.
During the argument it was con,ended that the conduct and acts of Marc Thomegay subsequently to February, 1744, at the time of the birth of Sarah were inadmissible as evidence of Marc Thomegay 's intention to permanently reside in this country at that time.
It was said that we must not regard such conduct and acts in determining what the state of Marc Thomegay 's mind was in February, 1744.
For myself I do not hesitate to say I was surprised at such a contention; it is opposed to all the rules of evidence, and all the authorities with which I am acquainted.
I have always understood the law to be, that in order to determine a person 's intention at a given time, you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight of cogency.
The law, I thought, was so well established on that subject that I should not have thought it necessary to allude to this contention, unless I had understood that the propriety of admitting this evidence was somewhat questioned by Lord Justice Fry, a view which I rather now gather from his judgment he has relinquished.
" We are, therefore, of opinion that.
the conduct and activities of Narain Raja subsequent to the year 1949 are relevant but we shall decide the question of his domicil in this case mainly in the light of his conduct and activities prior to the year 1949.
Reverting to the history of Narain Raja 's life from 1950 onwards, it appears that he had married his wife in 1950.
His wife belonged to Darkoti in Himachal Pradesh near Patiala.
The marriage had taken place at Banaras.
Narain Raja had a son and a daughter by that marriage and according to his evidence the daughter was born in Banaras and the son was born in Bettiah.
The daughter prosecutes her studies in Dehradun.
In 1950 or 1951 Narain Raja had established a Sanskrit Vidalya in Ramnagar in the name of his mother, called Prem Jananl Sanskrit Vidyalaya.
The story of Narain Raja 's political activities is as follows: There was a Union Board in Ramnagar before Gram Panchayats had come into existence, of which Narain Raja was the Chairman or President.
(1) (1889) 40 Oh. D. 216.
804 After Gram Panchayats were established, the Union Board was abolished.
Narain Raja was a voter in the Gram Panchayat and he was elected as the Vice President of the Union called C.D.C.M. Union of Ramnagar.
For the General Elections held in 1952 Narain Raja was a voter from Ramnagar Constituency.
In the General Election of 1957 he stood as a candidate opposing Kedar Pandey.
Thereafter, he became the President of the Bettiah Sub divisional Swatantra Party and then Vice President of Champaran District Swatantra Party.
Taking all the events and circumstances of Narain Raja 's life into account we are satisfied that long before the end of 1949 which is the material time under article 5 of the Constitution, Narain Raja had acquired a domicil of choice in India.
In other words, Narain Raja had formed the deliberate intention of making his home with the intention of permanently establishing himself his family in India.
In our opinion, the requisite animus manendi has been proved and the finding of the High Court is correct.
On behalf of the appellant Mr. Aggarwala suggested that there were two reasons to show that Narain Raja had no intention of making his domicil of choice in India.
Reference was made, in this context, to exhibit 10(c) which is a khatian prepared in 1960.
showing certain properties standing in the name of Narain Raja and his brothers in Nepal.
It was argued that Narain Raja had property in Nepal and so he could not have any intention of living in India permanently.
It is said by the respondent that the total area of land mentioned in the khatian was about 43 bighas.
The case of Narain Raja is that the property had belonged to his natural grandmother named Kanchhi Maiya who had gifted the land to Rama Raja.
The land was the exclusive property of Rama Raja, and after his death, the property devolved upon his sons.
The case of Narain Raja on this point is proved by a Sanad (exhibit AA).
In any event, we are not satisfied that the circumstance of Narain Raja owning the property covered by exhibit 10(c) can outweigh the fact that Narain Raja alone had extensive properties in India after the partition decree of the year 1944.
It was also pointed out on behalf of the appellant that Narain Raja, and before him Rama Raja, had insisted upon designating themselves "Sri 5, ' indicating that they belonged to the royal family of Nepal It was argued on behalf of the appellant that Narain Raja had clung tenaciously to the title of "Sri 5", thereby indicating the intention of not relinquishing the claim to the throne of Nepal if at any future date succession to the throne falls to a junior member of the family of the King of Nepal.
We do not think there is any substance in this argument.
It is likely that Narain Raja and his father Rama Raja had prefixed the title of "Sri 5" to their names owing to the pride of their ancestry and sentimental 805 attachment to the traditional title and this circumstance has no bearing on the question of domicil.
Succession to throne of Nepal is governed by the rule of primogeniture and it cannot be believed that as the second son of his father, Narain Raja could ever hope to ascend to the throne of Nepal, and we think it is unreasonable to suggest that he described himself as "Sri 5" with the intention of keeping alive his ties with Nepal.
There was evidence in this ease that Narain Raja 's eider brother Shiv Bikram Sah has left male issues.
For the reasons expressed, we hold that Narain Raja had acquired domicil of choice in India when article 5 of the Constitution came into force.
We have already referred to the finding of the High Court that Narain Raja was ordinarily resident in India for 5 years immediately preceding the time when article 5 of the Constitution came into force.
It is manifest that the requirements of article 5(c) of the Constitution are satisfied in this case and the High Court rightly reached the conclusion that Narain Raja was a citizen of India at the relevant time.
We accordingly dismiss both these appeals with costs.
One set Appeals dismissed.
| The appellant and respondent were contesting candidates for election to the State Legislative Assembly.
The respondent was declared elected, and the appellant filed an election petition challenging the election on the ground that the respondent was not duly qualified under article 173 of the Constitution as he was a citizen of Nepal and not a citizen of India.
The Tribunal held that the respondent was not a citizen of India, but the High Court in appeal set aside that order and upheld the election of the respondent.
On the question whether the respondent was a citizen of India under article 5 of the Constitution, 0n the material date, HELD: Assuming that the respondent was not born in the territory of India, on a consideration of all the events and circumstances of his life, he had acquired a domicile of choice in India long before the end of 1949 which is the material time under article 5 of the Constitution.
He had formed the deliberate intention of making India his home with the intention of permanently establishing himself and his family in India and therefore had the requisite animus manendi.
He was ordinarily resident in India for 5 years immediately preceding the time when article 5 came into force.
Since the requirements of article 5(c) were satisfied, the High Court rightly reached the conclusion, that he was a citizen of India at the relevant time.
[805 C D] The only intention required for a proof of a change of domicile is an intention of permanent residence.
What is required to be established is that the person who is alleged to have changed his domicile of origin has voluntarily fixed the habitation of himself and his family in, the, new country, not for a mere special.
or temporary purpose, but with a present intention of making it his permanent home, On the question of domicile at a particular time the course of his conduct and the facts and.
circumstances before and after that time are relevant.
[801 F G; 803 F] Udny vs Udny,L.R. 1 H.L. Sc.
441 and, Doucet vs Geoghegan, 9Ch.
441, applied. 794
|
Appeal No. 20 of 1987 From the Judgment and Order dated 9.11.1983 of the Bombay High Court in w.
P. No. 271 of 1979.
S.S. JavaIi and P.R. Ramashesh for the Appellants.
A.M. Khanwilkar and Mrs. V.D. Khanna for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
Heard counsel for the parties on the appeal.
This appeal by special leave arises out of the judgment of the High Court of Bombay dated 9th November, 1983.
It raises a short and an interesting point.
Shripati Balla Jadhav, father of the appellants had executed a lease deed with regard to the suit land in favour of the landlord and taken the said land on lease.
The said lease was for the purpose of cultivation of chillies, tobacco, sugarcane, groundnuts etc.
916 That is the version of the petitioners/appellants, The question is, whether the lease was taken for the aforesaid purposes or was only for the cultivation of sugar cane alone.
In deciding that question the terms of the lease will have to be borne in mind.
Suo moto proceedings for fixing the price under section 32(G) of the Bombay Tenancy Agricultural Lands Act, 1948 being Act No. LXVII of 1948 (hereinafter called the 'Act ') was taken on the assumption that the tenant had become statutory purchaser by virtue of section 32 of the said Act.
The proceedings were dropped as some of the respondents were then minors.
An order as made by Deputy Collector in appeal from the order of the trial court in proceedings under section 3"(G) of the said Act remanding the case to the trial Court on 31st March.
Thereafter on 17th July, 1975, the Maharashtra Revenue Tribunal confirmed the order of remand made by Dy.
Collec tor, in revision filed by the respondents herein.
The High Court thereafter rejected the writ petition of the landlord against the order of the Tribunal.
and as such the proceed ings under section 32(G), according to the appellants here in, are still pending.
On 15th June, 1974, the respondents made an application under the Act for determination of reasonable rent on the basis that the lands were leased for growing sugarcane.
The trial court on 11th February, 1975 rejected the application in respect of the tenancy of Aval Kankoon on the ground that the lands had been leased not for growing sugarcane alone.
but for different types of crops.
On or about 31st May. 1977.
the Spedal Land Acquisition Officer.
Kolahpur in Tenancy Appeal No. 302 of 1975 allowed the tenancy of Aval Kankoon and directed the determination of the rent on the basis that the lands were leased for growing sugarcane.
The said order was confirmed on 30th November, 1978 by the Maharashtra Revenue Tribunal, Kolahpur, in appeal filed by the appellants.
There was a writ petition thereafter on 9th November, 1983 by the appellants under article 227 of the Constitution and the High Court of Bombay rejected the said writ application.
The petitioners have come up in special leave to this Court.
It may be mentioned before we deal with the judgment under appeal that the said Act was an Act to amend the law relating to tenancy of the agricultural land and to make certain other provisions with regard to those lands.
It may be mentioned that the purpose was to make the tillers owners of the land and in respect of mortgages of certain lands giving the tenant the right of re purchase of the land.
It is 917 a social agrarian reform measure to ameliorate the condi tions of the tenants.
See in this connection the statement of Objects and Reasons of the said Act.
In the Preamble it is stated that it was necessary to amend the law which governed the relations of landlords and tenants of agricultural lands; and further whereas on ac count of the neglect of a landholder or disputes between landlord and tenants, the cultivation of an estate has seriously suffered, or for the purpose of improving the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture, it was expedient to assume management of estates held by landhold ers and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto or occupied by agriculturists, agricul tural labourers and artisans in the Province of Bombay, and to make provisions for certain other purposes therein the said Act was being passed.
The Act was intended to benefit tenants in respect of the said evils.
But Chapter IlIA which was inserted by Bombay Act 13 of 1956 provided special provisions for land held on lease by industrial or commer cial undertakings and by certain persons for the cultivation of sugarcane and other notified agricultural produce.
Under the scheme of the Act under sections 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 14, 16, 17A, 17B, 18, 27, 31 to 31D (both inclu sive), 32 to 32R (both inclusive), 33A, 33B, 33C, 43, 63, 63A, 64 and 65 dealt with the various kinds of rights of the tenants in land, including the right of repurchase as con templated in sections 32 to 32R. Section 32(1) provided that on first day of April, 1957 which was called "the tillers ' day '7 in the Act every tenant should subject to the other provisions of the Act and the succeeding sections be deemed to have purchased from the landlord, free of all encum brances subsisting thereon on the said day, the land held by him as tenant, if such tenant was a permanent tenant thereof and cultivated land personally; or such tenant was not a permanent tenant but cultivated the land leased personally; and the landlord had not given notice of termination of his tenancy under section 31; or notice had been given under section 31, but the landlord had not applied to the Mamlat dar on or before 31st day of March, 1957 under section 29 for obtaining possession of the land; or for certain other contingencies mentioned in clause (ii) and other clauses of section 32 of the Act.
Section 43A which is in Chapter III A, provides, inter alia, by clause (b) of Section 43A(1) that leases of land granted to any bodies or persons other than those mentioned in clause (a) for the cultivation of sugarcane or the grow ing of fruits or flowers or for the breeding of 918 livestock, that the aforesaid provisions for the benefit of tillers or tenants would not apply to those.
In this appeal we are concerned with a very short ques tion namely, whether the lease of land granted in this case is covered by clause (b) for the lease for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock.
Clause (a) of sub section (1) of section 43A deals with land leased to or held by any indus trial or commercial undertaking which in the opinion of the State Government bona fide carries on by any industrial or commercial operations and which is approved by the State Government.
By the order of the Maharashtra Revenue Tribunal, the tenant had been denied that right as against the landlord.
The Revision Petition was filed by the respondents tenants in proceedings under section 43B of the said Act to question the order made by the Member, Maharashtra Revenue Tribunal, Kolahpur, refusing to interfere with the order made by the Special Land Acquisition Officer (II) Tulsi Project, Kolha pur, holding that the purpose of the lease as far as suit lands were concerned was one for cultivating sugarcane and as such the lands were governed by the provisions of section 43A of the Act.
The question is, is that finding correct? Both the courts had interpreted the original Kabulayat, herein dated 24th February, 1947 to come to the conclusion that this land was leased for raising sugarcane.
Our atten tion was also drawn to the official translation of the said documents which will be presently noted.
It may be mentioned that initially proceedings under section 88C of the Act were filed on the basis that the lands were Jiravat lands but the said proceedings were 'withdrawn, and further that proceed ings under section 32(G) of the Act were also initiated in 1972, which were still pending.
In those proceedings too, the character of the lands was stated to be Jiravat lands.
According to the learned ' counsel, this characterisation of the lands as Jiravat lands was contrary to the findings recorded by the revenue authorities and there was an error apparent on the face of the record, and so was contended before the High Court.
Secondly, the learned counsel had submitted before the ' High Court that on correct reading of the Kabulayat there was an express mention that apart from sugarcane no other crops could be cultivated and if that was so, the revenue Courts were in error in holding otherwise.
The High Court noted that the proceedings before it were not proceedings in appeal.
The High Court rightly rejected the application under article 227 of the Constitution on the view that if a 919 reasonable view of the evidence was taken by the authorities competent to decide the controversy, no interference was called for.
Furthermore that was a fact which had to be determined on the basis of the evidence.
However, it was contended before the High Court with reference to the Kabu layat that it could be seen that this Kabulayat of 1947 conferred a right of cultivation for five years.
The Kabu layat specifically mentioned that possession of the lands as well as the well was given under the document.
It provided that the executant could take the crop in due consultation with the landholders and there the mention or the crops indicated all sorts of crops, like Jawar, Tur, Bhuimug, Mirchi, Kapus, Oos, Tambakhoo etc.
It further recited that 1/2 of the crop would be retained by he owners and the other 1/2 would be retained by the tillers.
After these primary recitals, reference was made primarily to the sugarcane crop.
With regard to that aspect, it was undertaken by the executant that everyday till jaggery was prepared, 20 sugar canes and one pot of sugarcane juice would have to be reached to the owners.
Similarly, it was provided how the fruits of the mango trees would be shared.
It was further provided with regard to the manure as well as the seeds for raising sugarcane the parties were to share 1/2 and 1/2 expenditure.
Similarly with regard to the maintenance of the irrigational facilities and also the expenditure for the preparation of jaggery the parties were to share 1/2 and 1/2.
It was further provided that the land which Was not available for sugarcane could be subjected to cultivation of jute or chilli and no other till the land was available for sugarcane cultivation.
It may be instructive to refer to the material portion of the deed which states as follows: "These two lands I have taken from you agreeing to pay.
half crop share for a period of five years from shake 1869 to 1874 and have taken possession today alongwith well and trees.
I will raise crops therein in consultation with you.
In these lands, I will raise chillies, Cotton, Sugarcane, Tobacco, etc.
but I will cut and harvest them with your approval.
I will give you a half share in all the crops raised as also in the fodder.
I will take the remaining share as a tenant.
You are to take the green grass growing on the western hedge in R.S. No. 493.
I am to take the green grass from other hedges.
In the dry fodder you are to get half the number of shieves.
" The next clause dealt with the price and it has also an important beating and stated as follows: 920 "The price of your share of crops and fodder is fixed at Rs. 1400.
However I will give you the grain & fodder and will not ask you to take its price.
Similarly I will pay you half the assessment and local fund in the month of January every year.
Every year as long as sugar cane crushing goes on I will give you every day 20 good sugar canes, and a pitcher of sugar cane juice.
The price of the sugarcane and juice is fixed at Rs. 15.
These are mango trees in the lands.
if they bear fruits I will protect the same and will not pluck any nor will allow anyone also to do so.
For protecting the fruits I will take 1/4th and will give you 3/4th.
The price of your share in the mangoes is fixed at Rs.50.
" Then in the second clause the executant states as follows: "In the land where sugar cane is grown I will raise either chillies or jute as an alternate crop.
I will not grow any other crop in that plot.
" Thereafter the Kabulayat dealt with the obligation of the executant to supply half the manure of the land and half the cost of fertilizer and asserted that he would supply.
half the seed for sugarcane and carry the fertilizer and seed of sugarcane of his share at his cost.
Free service as per usual practice was also ensured.
The last clause on which reliance was placed provides as follows: "I will cultivate the lands on these terms for five years.
I will hand back the land in which sugarcane is raised in the month of Magarshirsha of shake 1873.
The remaining land I will deliver to you between Margarshirsha and Falgun of shake 1876 as and when the standing crops are removed.
Thus the lands are to remain with me till the amount of Rs.3000 deposited by me is paid off.
" According to the High Court, though initially there was sortie mention of other crops, the Kabulayat in terms in tended that the land would be used for cultivation of sugar cane, and when the sugarcane was not being cultivated, the other crops could be cultivated in those pieces of lands till the land was again available for sugarcane cultiva 921 tion.
If that be not the intention, according to the High Court, the entire document could not be correctly and rea sonably reconciled.
It could not be forgotten that this was a document reserving right of the amount of Rs.3000 and Rs.600 to be adjusted every year by giving the cultivated return and taking a receipt therefor.
The receipt so intend ed to be taken only concerns itself with the sugarcane, sugarcanejuice and sugarcane waste.
Thus, the document taken as a whole could reasonably be read as providing for the purpose as it was found by the revenue authorities.
Further more, the oral evidence, according to the High Court, of the parties clearly went on to show that the initial purpose must have been the lease for growing sugarcane.
The High Court referred to the evidence of P.W. 1 who attested the document.
As against this evidence, there was evidence of D.W. 1 which was an evidence only of denial and even he was unable to say whether in the document sugarcane, cotton and tobacco as crops were mentioned or not.
He was unable to say in how many years actually the sugarcane had been cultivated and he submitted that by rotation the land could be used for cultivating sugarcane.
It was further admitted, the High Court noted, that in cross examination that jaggerywise taken to shops for sale.
The High Court was of the view that.
once the Kabulayat was read in this manner, it did not appear even from the 7/12 extract that in some portion.
sugarcane crop was culti vated.
The High Court found that being the position of the record it was difficult to interfere with the finding of the lower court.
In other words the High Court was of the view that the predominate purpose being sugarcane cultivation, the tenant was riot entitled to the right asserted by him.
The High Court also noted that the fact that the lands to be characterised as Jiravat lands would not be decisive for determining the purpose of the lease when that could be found from a document like the Kabulayat.
In the premises the High Court refused to interfere.
It is the correctness or otherwise of that decision which is under challenge before us.
It was submitted before us that the whole of the land is not for the cultivation of sugarcane.
It was urged that in an area of 11 acres, only 1 acre was subjected to the culti vation of sugarcane.
The Kabulayat or the lease clearly indicated that there were other purposes.
The question in this case is whether the lease was for sugarcane or also for other purposes? Was it composite purpose lease or single purpose lease? The object of the legislation has to be borne in mind.
922 The entirety of the lease has to be kept in view.
Then and then only can the question be viewed properly.
Our attention was drawn to a bench decision of the Bombay High Court in Shri Usaf Usman Majawar vs Shrimant Yeshwantrao Appasaheb Ghatage, [1963] Bombay Law Reporter Vol.
LXV 831.
There the Division Bench observed that indi vidual leases were not excluded from the operation of sec tion 43A(1)(b) of the Act.
According to the bench decision of the Bombay High Court, the determining factor in consid ering whether clause (b) of section 43A(1) of the Act was applicable or not, was the purpose of the lease.
If the purpose of the lease was for cultivation of sugarcane or growing of fruits or flowers or for the breeding of live stock, then it was excluded from the operation of sections 32 to 32R of the Act whether the lessee is a body of person or persons.
The High Court further reiterated that what was required to be established on material evidence under sec tion 43A(1)(b) of the Act was whether there was a lease; and whether the lease was for cultivation of sugarcane or grow ing of fruits or flowers.
It is not necessary that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that lease must be for cultivation of sugarcane etc.
in the entire field.
It would be for the courts to reach a conclusion on the evidence available to it whether the lease was for cultivation of any particular crop or not.
Nothing would, turn on whether the agreement was to grow that crop in the entire field or not.
Our attention was drawn to the observations of the Court at page 835 of the report.
It was contended before the Bombay High Court that for attracting the provisions of section 43A of the Act, it must be proved by the landlord that the agreement specifically provided that the lease was for cultivation of the sugarcane or for the growing of fruits or flowers or for breeding of livestock, and further it must also be established that the agreement was to grow sugarcane in the entire land leased out 'and not in any part thereof.
The High Court was of the view that it was true in the language of clause (b) that it had to be established that the lease was granted for the cultivation of sugarcane or for growing.
fruits and flowers etc., but it nowhere specifically mentioned that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that the/ease must be for cultivation of sugarcane etc, in the entire field.
(Emphasis supplied).
On the other hand, according to the view of the Bombay High Court, what was required was to be established on material evidence whether there was a lease and whether the lease was for cultivation of 923 sugarcane or for growing of fruits or flowers.
In each case it would depend on the evidence whether the lease had been for cultivation of sugarcane or growing of fruits or flowers and that would depend on the nature of the cultivation.
The Bombay High Court noted that they were informed that the cultivation of sugarcane could never be on the entire field but the cultivation of sugarcane was always carried on by rotation in parts of the field.
It would, therefore, depend on the facts of each case and if that be so, it is for the courts of fact to reach a conclusion on the evidence avail able to it whether the lease had been for cultivation of a particular crop or not.
On behalf of the petitionersappel lants, learned counsel, Shri Javali contended that the lease contained in the Kabulayat had to be examined because it was not for cultivation of sugarcane only.
Shri JavaIi for the appellants contended that the land could not be exempted because the lease was not for the cultivation of the sugar cane alone.
He drew our attention to the findings at page 13 of the Paper Book of the appellate court where apart from the record it appeared that the crop of sugarcane actually raised in the suit lands was to the extent of 1 acre or more.
This was continued since 1947 till 1972 and it was clearly stated by the tenants that they had stopped raising sugarcane after 1972 because of scarcity of water.
The entries in the record of Rights also substantiated the position that sugarcane was actually raised in the suit lands.
The appellate court noted that there was a well in one of the suit lands having sufficient water to raise sugarcane.
The statement of the tenants corroborated this fact when they stated that on the day of deposition there was 5 to 6 cubic feet water in the said well.
That the court below had actually gone for site inspection and found that Baggayat crops like wheat was cultivated by the tenants on the water course available from the well in the suit land.
But it is clear that the entire land was not used for culti vation of sugarcane.
The question is if lease for multiple cultivation is permissible in the scheme of section 43A then only leases of the areas for cultivation of sugarcane or growing of fruits or flowers or for breeding of livestock could claim the benefit of protection from the tenants ' claim.
This has to be borne in mind.
With respect, we cannot accept the ratio of the decision of the Bombay High Court in its entirety.
We are aware that 'sugarcane could not be cultivated in the entire field for the whole year.
It has to be kept follow and crops had to be grown in the meantime to increase the fertility.
But what was primary and what was secondary and what was to be done in such a case as we found it as a fact, has to be considered.
924 As mentioned hereinbefore, this petition is concerned with the proceeding under section 43B of the said Act which questioned before the High Court the order made by the Member, Maharashtra Revenue Tribunal, refusing to interfere with the order made by the Special Land Acquisition Officer (II) Tulsi Project, Kolhapur holding that the purpose of the lease so far as the suit land was concerned was one for cultivating sugarcane and as such the lands were governed by the provisions of section 43A of the Act.
Having regard to the facts and circumstances enumerated before, we are of the opinion that the area which is in dispute in this case comprised of areas leased for raising sugarcane crop as also for other crops.
In view of the provisions of law discussed above, in so far as the High Court upheld the finding that the entirety of the area in question was covered by lease for sugarcane, it is difficult to sustain the same.
The area was covered by lease for multiple purposes.
Some areas were leased out for sugarcane where along with sugarcane other flops were grown.
These, however, should be included as areas leased for sugarcane as ancillary flops or for better utilisation of the land in question.
But here the leases covered areas other than the areas contemplated by sugarcane which could be demarcated in terms of the Kabulayat which we have discussed before.
In our opinion, having regard to the preamble to the Act and the primary purpose of the Act, it would be necessary to remand the matter back to the High Court for remanding it back to the appropriate officer to determine whether there was any area which was leased exclu sively for sugarcane crop.
If it is held on such enquiry that the entirety of the area was for sugarcane crop, then the order of the Tribunal made in this case cannot be inter fered with.
If, on the other hand, there are areas which were leased out separately and independently of the leasing out for sugarcane and demarcated separately, then in respect of the same, no exemption can be given in derogation of the rights of the agricultural tenants in those leased areas and the appellant would be entitled to succeed.
In a lease for composite purposes, if there was any area where sugarcane was only cultivated, that area would be exempt from the ambit of the provisions of the Act and would be exempted.
If, however, along with cultivation of sugarcane, other crops were cultivated in the area, such an area would not be entitled to exemption.
We therefore remand the case with directions that the authorities below should find the posi tion in light of the aforesaid.
It may be observed that the Bombay Tenancy Agricultural Lands Act, 1948 was enacted with a high purpose of transferring the land tilled to the till ers of the soil with the exception of the lands which were leased out for growing sugarcane because of the need for protection of the industry of sugarcane and development of the economy.
925 This appeal is disposed of with the aforesaid direc tions.
In that view of the matter, parties will pay and bear their own costs.
M.L.A Appeal disposed of.
| The Bombay Tenancy Agricultural Lands Act, 1948, by s.32(1) provides that every tenant should, subject to the other provisions contained in the Act, be deemed to have purchased from the landlord, free of all encumbrances the land held by him as tenant, if such tenant was a permanent tenant and cultivated the land personally; or such tenant was not a permanent tenant but cultivated the land leased personally; and the landlord has not given notice of termi nation of his tenancy under section 31; or notice had been given under section 31, but the landlord had not applied to the Mamlatdar on or before 31st day of March, 1956 under section 29 for obtaining possession of the land; or for certain other contingencies mentioned in section 32 of the Act.
Section 43A provides that the aforesaid provisions for the benefit of tillers or tenants would not apply to land granted to any bodies or persons for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock.
The appellant tenant had taken the suit land on lease from the respondent.
The lease deed was alleged to have been executed for the purpose of cultivation of chillies, tobac co, sugarcane and groundnuts etc.
Suo moto proceedings for fixing the price under s.32(g) were taken on the assumption that the appellant tenant had become statutory purchaser by virtue of s.32 of the Act.
While the proceedings were pend ing, the respondents made an application under the Act for determination of reasonable rent on the basis that the lands were leased for growing sugarcane.
The trial court rejected the application holding that the lands had 914 been leased not for growing sugarcane alone, but for differ ent types of crops.
However, the Special Land Acquisition Officer held that the purpose of the lease was one for cultivating sugarcane and, as such, the lands were governed by the provisions of s.43A of the Act and directed the determination of the rent accordingly.
The Maharashtra Revenue Tribunal as well as the High Court confirmed the aforesaid order.
The High Court held that though initially there was some mention of other crops, the Kabulayat (Lease Deed) in terms intended that the land would be used for cultivation of sugarcane, and when sugarcane was not being cultivated, the other crops could be cultivated till the land was again available for sugarcane cultivation, and if that be not the intention, the entire document could not be correctly and reasonably reconciled and that the predominate purpose being sugarcane cultivation, the tenant was not entitled to the right asserted by him.
In appeal to the Supreme Court, it was contended on behalf of the appellant tenant: (i) that the whole of the land is not for the cultivation of sugarcane; (ii) that in an area of 11 acres, only 1 acre was subjected to the culti vation of sugarcane, and that the Kabulayat or the lease clearly indicated that there were other purposes; and (iii) that the land could not be exempted because the lease was not for the cultivation of the sugarcane alone.
Disposing of the appeal, this Court, HELD: 1.1 The Bombay Tenancy Agricultural Lands Act, 1948 was enacted with a high purpose of transferring the land tilled to the tillers of the soil with the exception of the lands which were leased out for growing sugarcane be cause of the need for protection of the industry of sugar cane and development of the economy.
[924G H] 1.2 Having regard to the preamble to the Act and the primary purpose of the Act, it would be necessary to remand the matter back to the High Court for further remand to the appropriate officer to determine whether there was any area which was leased exclusively for sugarcane crop.
If it is held on such enquiry that the entire area was for sugarcane crop, then the order of the Tribunal cannot be interfered with.
If, on the other hand, there are areas which were leased out separately and independently of the leasing out for sugarcane and demarcated separately, then in respect of the same no exemption can be given in derogation of the ' rights of the Agricultural tenants in those leased areas and the appellant would be entitled to succeed.
[924D F] 915 2.1 In a lease for composite purposes, if there was any area where sugarcane was only cultivated, that area would be exempt from the ambit of the provisions of the Act and would be exempted.
If, however, along with cultivation of sugar cane, other crops were cultivated in the area, such an area would not be entitled to exemption.
[924F G] 2.2 It is not necessary that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that the lease must be for cultivation of sugarcane etc.
in the entire field.
It would be for the courts to reach a conclusion on the evidence whether the lease was for cultivation of any particular crop or not.
Nothing would turn on whether the agreement was to grow that crop in the entire field or not.
[922G H; 923A B] In the instant case, the area which is in dispute com prised of areas leased for raising sugarcane crop as also for other crops.
The area was covered by lease for multiple purposes.
Some areas were leased out for sugarcane where along with sugarcane other crops were grown.
These however, should be included as areas leased for sugarcane as ancil lary crops or for better utilisation of the land in ques tion.
The leases covered areas other than the areas contem plated by sugarcane which could be demarcated in terms of the Kabulayat.
[924B D]
|
Civil Appeals Nos.
2221 2225, and 2524 of 1972.
From the Judgment and orders dated the 18 11 71, 29 3 1972 and 5 2 1972 of the Delhi High Court in L.P. No. 53/71 and Civil Writ Petitions Nos. 612, 640, 643 and 649/71, 281/72 and 1052 of 1971 respectively.
A.K. Sen, Sarjoo Prasad Balram Senghal and C. P. Lal for the Appellants in CAs 2221 2225/72 B. Sen, S.P. Nayar and M.N. Shroff for Respondents 2 3, (In CAs.
2221 2225/72) for Respondents 1 4 in.C.A. 1801).
S.V. Gupte, Mrs. Leila Sait and U. K. Kaithan for Interveners (In CAs.2221 2225/72) and Appellants (In CAs.2524/72).
M. C. Bhandare, Sardar Bahadur Saharya, B. N. Kirpal and V. B. Saharya for the Appellant in CA 1801/72.
The Judgment of the Court was delivered by SARKARIA, J.
Whether the Notification No. SRO 2908, dated December 7, 1957 issued by the Central Government in purported exercise of its powers under section 2 of the Union Territories (Laws) , is ultra vires the Central Government is the principal question that arises in these appeals which will be disposed of by a common judgment.
The question has arisen in these circumstances: Section 2 of the Part States (Laws) Act, 1950, empowered the Central Government to extend by notification in the official Gazette to any Part State, or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State.
In exercise of this power, the Central Government by a Notification No. SRO 615 dated the 28th April 1951, extended to the then Part State of Delhi, the Bengal Finance (Sales Tax) Act, 1941 (for short, the Bengal Act), with, inter alia, these modifications: "In sub section (2) of Section 6, (a)(b) for the words "add to the Schedule", the words "add to or omit or otherwise amend the Schedule" shall be substituted " For the Schedule of the Bengal Act, this Notification substituted a modified Schedule of goods exempted under section 6.
The relevant items in the modified Schedule were as follows: "8.Fruits, fresh and dried (except when sold in sealed containers) Pepper, tamarind and chillies.Turmeric.
Cloth of such description as may from time to time be specified by notification in the Gazette costing less per yard than Rs. 3/ or such other sum as may be specified.
21A. Knitting wool.
" Section 6 of the Bengal Act after its extension to Delhi, as modified by the said Notification, reads thus : "6(1)No tax shall be payable under this Act on the sale of goods specified in the first column of the Schedule subject to the conditions and exceptions if any set out in the corresponding entry in the second column thereof.
(2) The State Government after giving by Notification in the official Gazette not less than 3 months ' notice of its intention so to do may by like notification 790 add to or omit from or otherwise amend the Schedule and thereupon the Schedule shall be deemed to be amended accordingly." (emphasis supplied)
By a Notification, dated 1 1 1951, in sub section (1) of section 6, the words "the first column of" were omitted and for the words "in the corresponding entry in the second column thereof" the word "therein" was substituted.
By a notification country liquor was included in the Schedule as item No. 40 of exempted goods with effect from 19 1 1952.
On 1 11 1956, as a result of the coming into force of the States Reorganization Act, 1956, and the Constitution (Seventh Amendment) Act, 1956, Part States were abolished.
Part State of Delhi became a Union Territory and the Delhi Legislative Assembly, was also abolished.
In 1956, Part State (Laws) Act, 1950 (hereinafter referred to as Laws Act) also became me , with necessary adaptations.
On 1 12 1956, Parliament passed the Bengal Finance (Sales Tax) (Delhi Amendment) Act 1956 which introduced amendments in different sections of the Bengal Act as applicable to Delhi.
It made only two changes in section 6 Firstly, the word 'Schedule ', wherever it occurred, was replaced by the words "Second Schedule".
Secondly the words "Central Government" were substituted for the words "State Government".
On December 7, 1951, in the Gazette of India Extraordinary there appeared a notifications which reads as below: "S.R.O. 3908 In exercise of the powers conferred by section 2 of the (30 of 1950), the Central Government hereby makes the following amendment in the notification of the Government of India in the Ministry of Home Affairs No. S.R.O. 615, dated the 28th April, 1951 (extending to the Union Territory of Delhi and the Bengal Finance (Sales Tax) Act, 1941, subject to certain modifications) namely : In the said notification, in the modifications to the Bengal Act aforesaid, in item 6 (relating to sub section (2) of section (6), after sub item (a), the following sub item shall be inserted, namely : "(aa) for the words "not less than three months ' notice," the words "such previous notice as it considers reasonable" shall be substituted".
The vires of this notification dated 7 12 1957, is me subject of primary challenge in these appeals (hereinafter it will be referred to as the impugned notification).
791 Item 17 in the Second Schedule of the Bengal Act was amended with effect from December 14, 1957 by Notification No. SRO 3958, as under : "17. All varieties of cotton, woollen, rayon or artificial silk fabric but not including real silk fabrics".
"Conditions subject to which tax shall not be payable: In respect of tobacco cotton fabrics, rayon or artificial silk fabrics and woollen fabrics as defined in item 9, 12, 12A, 12B at the First Schedule to the (I of 1944) included in entries (a) and (c) above, no tax under the Bengal Finance (Sales Tax) Act 1941, shall be payable in the Union Territory of Delhi only if additional duties of excise have been levied on them under the Additional Duties of Excise (Goods of Special Importance) Act 1957".
The aforesaid condition was withdrawn by Notification No. GSR 203, dated 1 4 1958.
By Notification No. GSR 202, dated 1 4 1958, the Central Government withdrew the exemption of country liquor from tax by omitting item No. 40 from the Second Schedule.
By Notification No. GSR 1076 dated 19 9 1959, the Central Government withdrew the exemption from tax of Items, 8, 11, 14 and 21A by omitting them from the Second Schedule with effect from 1 10 1959.
On 1 10 1959, the Bengal (Sales Tax Delhi Amendment) Act, 1959 (Act XX of 1959) came into force whereby Parliament made some amendments in different sections of the Bengal Act but left section 6 untouched.
By a Notification No. GSR 964 dated 16 6 1966, notice was given that item 17 of the Second Schedule would be substituted with effect from 1 7 1966, as follows: "Item 17 All varieties, cotton, woollen, nylon, rayon, pure silk or artificial silk fabrics but excluding Durries, Druggets and carpets".
The proposed amendment was given effect to from 1 7 1966, by Notification No. GSR 1061 dated 29 6 66.
One result of this amendment was that exemption of Durries from tax was withdrawn, while, such exemption was among others, extended to 'pure silk '.
By a Notification GSR 1038, dated 14 7 1970, notice was given that item 17 in the Second Schedule would be substituted with effect from 1 8 1970, as follows: "17.All varieties of cotton fabrics, rayon, or artificial silk fabrics and woollen fabrics but not including Durries, Druggets and carpets".
792 Such substitution of item 17 was made with effect from 1 8 70 by Notification GSR 1119 dated 31 7 1970.
one result of this notification was that the exemption of 'pure silk ' from tax was withdrawn.
The appellants in Civil Appeal No. 2221 of 1972 are dealers in durries.
They feel aggrieved by the Notification GSR 1061 dated 29 6 1966 whereby exemption of Durries from sales tax was withdrawn.
The appellants in Civil Appeals 2222, 2223 and 2225 of 1972 deal in knitting wool.
Their cause of action arose when exemption of knitting wool was withdrawn by Notification dated 19 9 1959, w.e.f. 1 10 1959.
The appellants in Civil Appeals 2524 of 1972 deal inter alia in pure silk.
They are aggrieved by Notification, dated 31 7 1970 by which exemption of 'pure silk ' was withdrawn w.e.f. 1 8 1970.
The appellants in Civil Appeal No. 2224 of 1972 is a Kiryana dealer.
He feels aggrieved by the Notification dated 19 9 1959 whereby items 8, 11 and 14 were deleted from the Second Schedule with effect from 1 10 1959.
The appellants in Civil Appeal No. 1801 of 1972 are licensed vendors of country liquor.
They feel adversely affected by Notification GSR 1076, dated 19 9 1959 whereby exemption of country liquor from tax was withdrawn with effect from 1 10 1959.
Several writ petitions were filed in the High Court to question the validity of the Government action withdrawing the exemptions with notice far less than three months.
A learned Judge of the High Court allowed eight of these petitions by a common judgment recorded in Civil Writ 574 D of 1966, Lachmi Narain vs Union of India and others.
Against that judgment, the Revenue carried appeals under Clause 10 of the. , to a Bench of the High Court.
In the meanwhile more writ petitions (C. Ws.593 to 652, 792 to 806 of 1971) were instituted in which the same question was involved.
The Division Bench, by a common judgment, allowed the appeals and dismissed the writ petitions.
The writ petitioners have now come in appeal to this Court on the basis of a certificate granted by the High Court under Article 133 (1) (a) and (c) of the Constitution.
In the High Court the validity of the withdrawal of the exemptions was challenged on these grounds : (I) The power given by section 2 of the Laws Act to the Central Government to extend enactments in force in a State to a Union Territory with such restrictions and modifications as it thinks fit, could be exercised only to make such modifications in the enactment as were necessary in view of the peculiar local conditions.
The modification in section 6(2) of the BengaI Act made by SRO 3908, dated 793 7 10 1957, was not necessitated by this reason.
It was therefore, ultra vires section 2 of the Laws Act; (2) Such a modification could be made only once when the Bengal Act was extended to Delhi in 1951.
No modification could be made after such extension.
(3) The modification could not change the policy of the legislature reflected in the Bengal Act.
The impugned modification was contrary to it, and (4) The modifications giving notice to withdraw the exemptions and the notifications issued pursuant thereto withdrawing the exemptions from sales tax with respect to Durries, Ghee, (and other items relevant to these petitions) were void as the statutory notice of not less than three months as required by section 6(2) prior to its modification by the impugned notification of 7th December, 1957 had not been given.
Finding on all the four grounds in favour of the writ petitioners, lie learned Single Judge declared "that the purported modification of section 6(2) of the Bengal Finance (Sales Tax) Act 1941 by the Government of India 's notification No. SRO 3908, dated 7th December, 1957, was ineffective and section 6(2) continues to be the same as before as if it was not so modified at all."
In consequence he quashed the Government notifications GSR 964, dated 16 6 1966 and GSR 1061 dated 29 6 1966 because they were not in compliance with the requirement of section 6(2) of the Bengal Act.
The contentions canvassed before the learned Single Judge were repeated before the appellate Bench of the High Court.
The Bench did not pointedly examine the scope of the power of modification given to the Central Government by section 2 of the Laws Act with specific reference to the purpose for which it was conferred and its precise limitations.
It did not squarely dispel the reasoning of the learned Single Judge that the power of modification is an integral part of the power of extension and "cannot therefore be exercised except for the purpose of the extension".
It refused to accept that reasoning with the summary remark "from the extracts quoted by the learned Single Judge from the judgment of the Supreme Court in Re: Delhi Laws Act and from the Judgment in Rajnarain Singh vs The Chairman Patna Administration Committee Patna and Anr, the principle deduced by the learned Judge does not appear to follow.
We are therefore not inclined, as at present advised to support the above observations".
The Bench however hastened to add : "However, since the matter was not argued at great length and the appellants ' Counsel rested his submissions on the other aspects of the case, we would not like to express 794 any definite opinion on the question as to whether the power of making any modifications or restrictions in the Act can only be exercised at the time of extending the Act and that it cannot be done subsequently by the Central Government in exercise of its power."
" Seeking support from the observations of this Court in Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur,(1) the Bench held that what is mandatory in section 6(2) is the requirement as to the giving of reasonable notice of the Government 's intention t(! amend the second Schedule, for the information of the public, and that "no special significance or sanctity is attached to the span of time of three months provided in subsection (2) of section 6."
The Bench found that since the withdrawals of the exemptions in question, had been made after reasonable notice, the same were not invalid.
However, the main ground on which the decision of the Bench rests is that the infirmity, if any, in the impugned notification dated 7 12 1957, had been cured and rectified when "Parliament while enacting the Amendment Act, 1959 (Act No. '70 of 1959) put its seal of approval to the curtailed period of notice.
As such the curtailed period of notice shall be taken to have been provided by Parliament on the ratio of Supreme Court 's decision in Venkatrao Esajirao limberkar 's case".
Apart from the grounds taken in their writ petitions, the learned Counsel for the appellants have tried to raise before us another ground under the garb of what they styled.
as merely an additional argument".
They now seek to challenge the vires of the Notification SRO 615, dated the 28th April, 1951 in so far as it relates to the insertion in sub section (2) of section 6 of that Act, between the words "add to" and "the Schedule", of the words "or omit or otherwise amend".
It is argued that this insertion was beyond the power of modification conferred on the Central Government by section 2 of the Laws Act.
The point sought to be made out is that if the insertion made by the Notification dated 28 4 1951, in sec.6(2) was ineffective and non est in the eye of law, the Central Government would have no power to "omit" anything from the exempted goods itemised in the Schedule.
It is argued that under section 6(2) sans this insertion, the Central Government was empowered only to "add to" and not "omit" from the exempted items enumerated in the Schedule, and consequently, the withdrawal of the exemptions in question was ultra vires the Central Government.
The entertainment of this Plea at this stage is stoutly opposed by Shri B. Sen, learned Counsel for the Revenue.
We are not inclined to permit the appellants to add to the list of impugned Notifications, now in section appeal.
In their writ petitions, the appellants did not challenge the validity of the Notification dated 28 4 51.
They never raised this point before the learned 795 Single Judge.
Of course, before the appellate Bench, an argument was addressed on this point, but it does not appear to have been pressed.
The Bench noted: "In the present appeal, the Bengal Act as extended by SRO 615, dated the 28th April 1951, did not suffer from any infirmity.
It is conceded by the learned Counsel for the respondent that the Central Government at the time it extended e the Bengal Act, was competent to introduce such modification and restrictions as it thought fit.
The certificate under article 133 of the Constitution was neither sought, nor granted on any ground touching the validity of the Notification, dated 28 4 1951.
In the face of all this, it is now too late for the appellants to commit a volte face.
Accordingly, we decline to entertain this new ground of challenge.
The learned Counsel for the parties have, more or less, reiterated the same contentions which they had advanced in the High Court.
On behalf of the appellants, it is contended that the power of modification conferred on the Central Government by section 2 of the Laws Act is not an unfettered power of delegated legislation but a subsidiary power conferred for the limited purpose of extension and application to a Union Territory, an enactment in force in a State.
It is maintained that only such modifications are permissible in the exercise of that power which are necessary to adapt and adjust such enactment to local conditions.
According to Shri Ashok Sen, the power given by section 2 is a power of conditional legislation which is different from the power of delegated legislation.
It is submitted that it is not a recurring power; it exhausts itself on extension, and in no case this power can be used to change the basic scheme and structure of the enactment or the legislative policy ingrained in it.
The submission is that the impugned notification, dated 7 12 1957, is bad because it has been issued more than 61 years after the extension of Bengal Act, and it attempts to change the re rquirement of section 6(2) as to "not less than three months notice" which P is the essence of the whole provision.
Reference has been made to this Court 's opinion in Re: Delhi Laws Act (supra) and the decision in Raj Narain Singh case (supra).
Shri Ashok Sen further submits that by the amending Act 20 of 1959, parliament did not put its seal of approval on the impugned notification or the changes sought to be made by it in section 6 of the Bengal Act.
It is stressed that the amending Act of 1959, did not touch section 6 at all and therefore it could not be said with any stretch of imagination, that Parliament had referentially or impliedly incorporated or approved the purported change made by the impugned notification, in the Bengal Act.
As against the above, Shri B. Sen, the learned Counsel for the Revenue submits that the impugned notification does not change the essential structure or the policy embodied in section 6(2) of the Bengal Act.
796 According to Counsel, the policy underlying section 6(2) is that reasonable notice of the Government 's intention to add to or omit anything from the Second Schedule must be given by publication in the official Gazette.
It is maintained that the requirement as to "not less than three months ' notice" in the section was not a matter of policy but one of detail or expedience; it was only directory, and the modification made by the impugned notification did not go beyond adjusting and adapting it to the local conditions of Delhi.
Bengal, it is pointed out, is a big, far flung State while the Territory of Delhi is a small, compact area and therefore, it would not be necessary or unreasonable to give a notice of less than three months for every amendment of the Schedule.
Reliance has been placed on this Court 's dictum in Raza Buland Sugar Co. 's case (supra).
It is argued that the power to add or omit from the Second Schedule conferred on the Government is in consonance with the accepted practice of the Legislature; that it is usual for the legislature to leave a discretion 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 or rates at which it is to be charged in respect of different classes of goods and the like.
Reference has been made to the observations of this Court in Pt.Benarsi Das Bhanot vs State of Madhya Pradesh in the context of section 6(2) of the Central Provinces and Berar Sales Tax Act 1947.
Shri B. Sen further contends that the power of modification given by section 2 of the Laws Act, does not exhaust itself on first exercise; it can be exercised even subsequently if through oversight or otherwise, at the time of extension of the enactment the Central Government fails to adapt or modify certain provisions of the extended enactment for bringing it in accord with local conditions.
In this connection support has been sought from the observations of Fazal Ali J. at p. 850 of the Report in Re: Delhi Laws Act (supra).
Our attention has also been invited to section 21 of the General Clauses Act which according to Counsel, gives power to the Central Government to add to, amend, vary or rescind any notification etc if the power to do so does not run counter to the policy of the legislature or affect any change in its essential features.
Learned Counsel has further tried to support the reasoning of the appellate Bench of the High Court, that whatever infirmity may have existed in the impugned notification and the modification made there by in section 6(2), it was rectified and cured by Parliament when it passed the Amendment Act 20 of 1959.
It is urged that the Bengal Act together with the modifications made by notifications, dated 28 4 51, and 7 12 1957, must have been before Parliament when it considered and passed the Amendment Act of 1959.
Our attention has been invited to its preamble which is to the effect: "An Act further to amend the Bengal Finance (Sales Tax) Act, 1941, as in force in the Union Territory of Delhi," and also to the words "as in forcer in the Union Territory of Delhi" in section 2 of the amending Act.
:Reference has been made to this Court 's decisions in Venkatrao Esajirao 's case (supra), and Gwalior Rayon Silk Mfg.(Wvg.) Co. Ltd. The Assistant Commissioner of Sales tax and ors.
797 An alternative argument advanced by Shri B. Sen is that if in section 6(2) the requirement as to "not less than three months ' notice" was mandatory and a matter of legislative policy, then the exemptions from tax granted to Durries, pure silk etc.after the issue o the impugned notification must be treated non est and void ab initio, inasmuch as the amendments of the Second Schedule whereby those exemptions were granted, were made without complying with the requirement of not less than three months ' notice".
It is argued that if this requirement was a sine qua non for amendment of the Second Schedule, it could not be treated mandatory in one situation and directory in another.
If it was mandatory then compliance with it would be absolutely necessary both for granting an exemption and withdrawing an exemption from tax.
In this view of the matter, according to Shri B. Sen, the withdrawal of the exemption through the impugned notification was a mere formality; the notifications simply declared the withdrawal of something which did not exist in the eye of law.
Appellants cannot therefore have any cause of grievance if the invalid and still born exemptions were withdrawn by the questioned notifications.
In reply to this last argument, learned Counsel for the appellants submit that this ground of defence was not pleaded by the Revenue in its affidavit before the learned Single Judge.
This, according to the Counsel, was a question of fact which required evidence for its determination, and was therefore required to be pleaded.
Since the Respondents did not do so, they should not have been allowed to take it for the first time at the time of arguments.
Even otherwise proceeds the argument the Respondents are not competent to take this stand which is violative of the basic canon of natural justice, according to which no party can be allowed to take advantage of its own wrong.
It is stressed that the object of the requirement of not less than three months ' notice, was to afford an opportunity to persons likely to be adversely affected to raise objections against the proposed withdrawal or curtailment of an exemption from tax.
That being the case, only the persons aggrieved could have the necessary locus standi to complain of a non compliance with this requirement.
In Re: Delhi Laws (supra) this Court inter alia examined the constitutional validity of section 2 of the Laws Act in the light of general principles relating to the nature, scope and limits of delegated legislation.
Section 2 as it then stood, was as follows: "The Central Government may, by notification in the official Gazette, extend to any Part State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State with such restrictions and modifications as it thinks fit any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendments of any corresponding law (other than a Central Act) which is for the time being applicable to that Part State.
" The Court by a majority held that the first part of this section which empowers the Central Government to extend to any Part State or to any part of such State with such modifications and restrictions as it 798 thinks fit any enactment which is in force in a Part A State, is intra vires, and that the latter part of this section which empowers the Central Government to make provision in any enactment extended to a Part State, for repeal or amendment of any law (other than a Central Act) which is for the time being applicable to that Part State, is ultra vires.
Consequent upon this opinion, the latter part of the section was deleted by section 3 of the Repealing and Amending Act, 195 (Act XLVIlI of 1952) with effect from 2 8 1951.
The majority opinion in upholding the validity of the first portion of section 2 of the Laws Act drew a good deal from the observations of the Privy Council in Queen vs Burah wherein it was said: "If what has been done is legislation within the general scope of the affirmative words which give the power and if it violates no express condition or restrictions by which that power is limited. it is not for any court of justice to enquire further or to enlarge constructively those conditions and restrictions".
"Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships judgment) be well exercised, either absolutely or conditionally.
Legislation conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in any circumstances it may be highly convenient." (emphasis supplies)
Before proceeding further, it will be proper to say a few words in regard to the argument that the power conferred by section 2 of the Laws Act is a power of conditional legislation and not a power of delegated legislation.
In our opinion, no useful purpose will be served to pursue this line of argument because the distinction propounded between the two categories of legislative powers makes no difference, in principle.
In either case, the person to whom the power is entrusted can do nothing beyond the limits which circumscribe the power; he has to act to use the words of Lord Selborne "within the general scope of the affirmative words which give the power" and without violating any "express conditions or restrictions by which that power is limited".
There is no magic in a name.
Whether you call it the power of "conditional legislation" as Privy Council called it in Burah 's case (supra) or 'ancillary legislation ' as the Federal Court termed it in Choitram vs Commissioner of Income tax, Bihar or 'subsidiary legislation ' as Kania C.J. styled, it or whether you camouflage it under the veiling name of 'administrative or quasi legislative power ' as Professor Cushman and other authorities have done it necessary for 799 bringing into operation and effect an enactment, the fact remains that it has a content, howsoever small and restricted of the law making power itself.
There is ample authority in support of the proposition that the power to extend and carry into operation an enactment with necessary modifications and adaptations is in truth and reality in the nature of a power of delegated legislation.
In Re: Delhi Laws Act (supra) S.R. Das J. said that on strict analysis it was "nothing but a delegation of a fractional legislative power".
Anglin J. in Grays case regarded this what is called conditional legislation ' as "a very common instance of limited delegation.
More or less to the same effect is the view taken by Evatt J. of Australia in Dignams case.
Prof. Kennedy (vide his treatise 'Constitution of Canada ', 2nd Edn.p. 463), is also of opinion that 'conditional legislation ' is "a form of delegation".
We do not want to multiply authorities nor wish to carry this academic discussion to a final conclusion because it is not necessary for solution of the problem in hand.
In the instant case, the precise question with which we are faced is whether the purported substitution of the words "such previous notice as is considers reasonable" for the words "not less than three months notice" in section 6(2) by the impugned notification dated 7th December, 1957, was in excess of the power of 'modification ' conferred on the Central Government by section 2 of the Laws Act.
This question has to be answered in the light of the principles enunciated by this Court in Re: Delhi Laws Act relating to the nature and scope of this power.
Out of the majority who upheld the validity of this provision of section 2 of the Laws Act, with which we are concerned, Fazal Ali J. explained the scope of the words "much modifications as it thinks fit" in section 2, thus: "These are not unfamiliar words and they are often used by careful draftsmen to enable laws which are applicable to one place or object to be so adapted as to apply to another.
The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law, and in the context in which the provision as to modification occurs it cannot bear the sinister sense attributed to it.
The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purposes to be served by it.
The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes."
Vivian Bose J. also observed in a similar strain, at p. 1124; 800 "The power to "restrict and modify" does not import the power to make essential changes.
It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area.
To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely, the power to legislate, all authorities are agreed, cannot be delegated by a legislature which is not unfettered."
Mukherjea J. was of the view that the "essential legislative function" which consists in the determination or choosing of the legislative policy and of formally enacting that policy into a "binding rule of conduct" cannot be delegated.
Dealing with the construction of the words "restrictions" and "modification" in the Laws Act, the learned Judge said" at pages 1004 10O6: "The word "restrictions" . connotes limitation imposed on a particular provision so as to restrain its application or limit its scope, it does not by any means involve any change in the principle.
It seems to me that in the context and used alongwith the word "restriction" the word " 'modification" has been employed also in a cognate sense, and it does not involve any material or substantial alteration.
The dictionary meaning of the expression "to modify" is to "tone down" or to "soften true rigidity, of the thing" or "to make partial changes without any radical alteration".
It would be quite reasonable to hold that the word "modification" in section 7 of the Delhi Laws Act (which is almost identical with the present section 2, Laws Act) means and signifies changes of such character as are necessary to make the statute which is sought to be extended able to the local conditions of the province.
I do not think that the executive Government is entitled to change the whole nature or policy underlying any particular Act or to take different portions from different statutes and prepare what has been described before us as "amalgam" of several laws.
these things would be beyond the scope of the section itself." (emphasis supplied).
S.R. Das J. (as he then was) delineated the scope of the power of "modification" given under section 7 of the (for short the Delhi Act) at p. 1089 as follows: "It may well be argued that the intention of section 7 of the was that the permissible modifications were to be such as would, after modification, leave the general character of the enactment intact.
One of the meanings of the word "modify" is given in the oxford Dictionary Vol.I, page 1269 as "to alter without radical transformation".
If this meaning is given to the word "modification" in section 7 of the then the modifications contemplated 801 thereby were nothing more than adaptations which were included in the expressions mutatis mutandis and the "restrictions, limitations or proviso" mentioned in the several instances of conditional legislation referred to by the Privy Council (in Burah 's case).
It is to be noted that the language of s.7 of the Delhi Act was substantially the same as that of the first portion of section 2 of the Part C State Laws Act, as it then stood.
What Das J. said about the scope of "restrictions and modifications" in the context of section 7 of the Delhi Act substantially applies to the ambit and meaning of these words occurring in section 2 of the Laws Act.
Again, in Rajnarainsingh 's case (supra), Vivian Bose J. speaking for the Court, summed up the majority view in regard to the nature and scope of delegated legislation in Re: Delhi Laws (supra), thus: "In our opinion the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature.
Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above: it cannot include a change of policy".
Bearing in mind the principles and the scope and meaning of the expression "restrictions and modifications" explained in , let us now have a close look at section 2.
It will be clear that the primary power bestowed by the section on the Central Government, is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment already in force in a State.
The discretion conferred by the Section to make 'restrictions and modifications ' in the enactment sought to be extended, is not a separate and independent power.
It is an integral constituent of the powers of extension.
It cannot be exercised apart from the power of extension.
This is indubitably clear from the preposition "with" which immediately precedes the phrase "such restrictions and modifications" and conjoins it to the principal clause of the section which gives the power of extension.
According to the Shorter Oxford Dictionary, one meaning of the word "with", (which accords here with the context), is "part of the same whole".
The power given by section 2 exhausts itself on extension of the enactment; it cannot be exercised repeatedly or subsequently to such extension.
It can be exercised only once, simultaneously with the extension of the enactment.
This is one dimension of the statutory limits which circumscribe the power.
The second is that the power cannot be used for a purpose other than that of extension.
In the exercise of this power, only such "restrictions and modifications" can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union Territory.
"Modifications" which are not necessary for, or ancillary and subservient to the purpose 802 of extension, are not permissible.
And, only such "modifications" can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying it into operation and effect.
In the context of the section, the words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature, of the enactment or the legislative policy built into it.
This is the third dimension of the limits that circumscribe the power.
It is true that the word "such restrictions and modifications as it thinks fit", if construed literally and in isolation, appear to give unfettered power of amending and modifying the enactment sought to be extended.
Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation.
Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power.
We must, therefore, confine the scope of the words "restrictions and modifications" to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory.
The impugned notification, dated 7 12 1957, transgresses the limits which circumscribe the scope and exercise of the power conferred by section 2 of the Laws Act, at least, in two respects.
Firstly, the power has not been exercised contemporaneously with the extension or for the purposes of the extension of the Bengal Act to Delhi.
The power given by section 2 of the Laws Act had exhausted itself when the Bengal Act was extended, with some alterations, to Delhi by Notification dated 28 4 1951.
The impugned notification has been issued on 7 12 1957, more than 6 1/2 years after the extension.
There is nothing in the opinion of this Court rendered in Re: (supra) to support Mr. B. Sen 's contention that the power given by section 2 could be validly exercised within one year after the extension.
What appears in the opinion of Fazl Ali J. at page 850, is merely a quotation from the report of the Committee on Minister 's Powers which considered the propriety of the legislative practice of inserting a "Removal of Difficulty Clause" in Acts of British Parliament, empowering the executive to modify the Act itself so far as necessary for bringing it into operation.
This device was adversely commented upon.
While some critics conceded that this device is "partly a draftsman 's insurance policy, in case he has overlooked something" (e.g. Sir Thomas Carr, page 44 of his book "Concerning English Administrative Law"), others frowned upon it, and nicknamed it as "Henry VIII Clause" after the British Monarch who was a notorious personification of absolute despotism.
It was in this perspective that the Committee on Minister 's Powers examined this practice and recommended: 803 ". first, that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him upto the essential.
It can only be essential for the limited purpose of bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally requisite for that purpose; and the clause should always contain a maximum time limit of one year after which the power should lapse".
It may be seen that the time limit of one year within which the power under a Henry VIII Clause should be exercisable, was only a recommendation, and is not an inherent attribute of such power.
In one sense, the power of extension cum modification given under section 2 of the Laws Act and the power of modification and adaptation conferred under a usual 'Henry VIII Clause, ' are kindred powers of fractional legislation, delegated by the legislature within narrow circumscribed limits.
But there is one significant difference between the two.
While the power under section 2 can be exercised only once when the Act is extended, that under a 'Henry VIII Clause ' can be invoked, if there is nothing to the contrary in the clause more than once, on the arising of a difficulty when the Act is operative.
That is to say, the power under such a Clause can be exercised whenever a difficulty arises in the working of the Act after its enforcement, subject of course to the time limit, if any, for its exercise specified in the statute.
Thus, anything said in Re: (supra), in regard to the time limit for the exercise of power under a 'Henry VIII Clause ', does not hold good in the case of the power given by section 2 of the Laws Act.
Fazl Ali J., did not say anything indicating that the power in question can be exercised within one year of the extension.
On the contrary, the learned Judge expressed in unequivocal terms, at page 849: "Once the Act became operative any defect in its provision cannot be removed until amending legislation is passed." Secondly, the alteration sought to be introduced by this Notification (7 12 1957) in section 6(2), goes beyond the scope of the 'restrictions and modifications ' permissible under section 2 of the Laws Act; it purports to change the essential features of sub section
(2) of section 6.
and the legislative policy inherent therein.
Section 6(2), as it stood immediately before the impugned notification, requires the State Government to give by Notification in the Official Gazette "not less than 3 months notice" of its intention to add to or omit from or otherwise amend the Second Schedule.
The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law maker as expressed in the law, itself.
The reason behind the provision may be a further aid to the ascertainment of that intention.
If the legislative intent is expressed clearly and strongly in imperative words, such as the use of 'must ' instead of "shall", that will itself be sufficient to hold 804 the provision to be mandatory, and it will not be necessary to pursue the enquiry further.
If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp.523 24).
Here the language of sub section (2) of section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months.
In fixing this period of notice in mandatory terms, the legislature had, it seems taken into consideration several factors.
According to the scheme of the Bengal Act, the tax is quantified and assessed on the quarterly turnover.
The period of not less than three months notice conforms to that scheme and is intended to ensure that imposition of a new burden or exemption from tax causes least dislocation and inconvenience to the dealer in collecting the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same.
Another object of this provision is that the public at large and the purchasers on whom the incidence of the tax really falls, should have adequate notice of taxable items.
The third object seems to be that the dealers and others likely to be affected by an amendment of the Second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment.
The dealers have also been ensured adequate time to arrange their sales adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption.
Taking into consideration all these matters, the legislature has in its judgment solemnly incorporated in the statute, fixed the period of the requisite notice as "not less than three months" and willed this obligation to be absolute.
The span of notice was thus the essence of the legislative mandate.
The necessity of notice and the span of notice both are integral to the scheme of the provision.
The sub section cannot therefore be split up into essential and non essential components, the whole of it being mandatory.
The rule in Raza Buland Sugar Co. 's case (supra) has therefore no application.
Thus section 6(2) embodies a determination of legislative policy and its formulation as an absolute rule of conduct which could be diluted, changed or amended only by the legislature in the exercise of its essential legislative function which could not, as held in Re: (supra) and Rajnarainsingh 's case (supra) be delegated to the Government.
For these reasons we are of opinion that the learned single Judge of the High Court was right in holding that the impugned notification was outside the authority of the Central Government as a delegate under section 2 of the Laws Act.
Before proceeding further, we may mention here in passing that the point for decision in Benarsi Das Bhanot 's case (supra) relied on by the Division Bench of the High Court, was different from the one 805 before us.
There, the constitutional validity of section 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, was questioned on the ground of excessive delegation.
In the instant case the validity of section 6(2) of the Bengal Act, as such is not being impeached.
There is yet another facet of the matter.
By the impugned notification, the Central Government did not directly seek to amend section 6(2).
Perhaps it was not sure of its competence to do so more than 6 1/2 years after the extension of Bengal Act to Delhi.
It therefore chose to amend section 6(2) indirectly through the amendment of its earlier notification dated 28 4 51, which was only a vehicle or instrument meant for extension of the Bengal Act to Delhi.
On such extension, the notification had exhausted its purpose and had spent its force.
It had lost its utility altogether as an instrument for modification of the Bengal Act.
Therefore, the issue of the impugned notification which purported to amend section 6(2) through the medium of a "dead" notification, was an exercise in futility.
In any case, an amendment which was not directly permissible could not be indirectly smuggled in through the back door.
We now turn to the main ground on which the judgment of the appellate Bench of the High Court rests.
The question is, was the invalidity from which the impugned notification, dated 7 12 1957, suffered cured by the Amendment Act of 1959 ? The Bench seems to think that by passing this Amendment Act, Parliament had put its seal of approval on the Bengal Act as it stood extended and amended by the Notifications of 1957 and 1957.
We find no basis for this surmise.
This Amendment Act leaves section 6(2) untouched; it does not even indirectly, refer to the impugned notification or the amendment purportedly made by it in section 6(2).
Nor does it re enact or validate what was sought to be achieved by the impugned Notification.
No indication of referential incorporation or validation of the impugned notification or the amendment sought to be made by it, is available either in the preamble or in any other provision of the Amendment Act.
In Krishna Chandra vs Union of India,(1) relied upon by the learned Counsel for the Respondents, the central issue for consideration was, whether R. 20(2) framed by the Bihar Government under section 15 of the and the second proviso to section 10(2) of the Bihar Land Reforms Act, 1950 were constitutionally valid.
By the combined operation of these statutory provisions, the petitioners therein were called upon to pay certain rent and royalties in respect of mining operations.
Those demands were challenged in Baijnath Kedia vs State of Bihar(2) wherein this Court held that the Bihar legislature had no jurisdiction to enact the second proviso to section 10(2) of the Bihar Act because section 15 of the Central Act, read with section 2 thereof, had appropriated the whole field relating to mining minerals for Parliamentary legislation.
The upshot of that decision was, that the action taken by the 806 Bihar Government in modifying the terms and conditions of the leases which were in existence anterior to the Rules and the levy sought to be made on the strength of the amended Bihar Act and Rule, were unsustainable.
Thereupon the State persuaded Parliament to enact the Validation Act of 1969 with a view to remove the road blocks which resulted in the decision in Kedia 's case (supra).
Section 2 of the Validation Act runs thus: "Validation of certain Bihar State laws and action taken and things done connected therewith.
(1) The laws specified in the Schedule shall be and shall be deemed always to have been, as valid as if the provisions contained therein had been enacted by Parliament.
(2) Notwithstanding any judgment, decree or order of any court, all actions taken, things done, rules made, notification issued or purported to have been taken, done, made or issued and rents or royalties realised under any such laws shall be deemed to have been validly taken, done, made, issued or realised, as the case may be, as if this section had been in force at all material times when such action was taken, things were done, rules were made, notifications were issued, or rents or royalties were realised, and no suit or other proceeding shall be maintained or continued in any court for the refund of rents or royalties realised under any such laws.
(3) For the removal of doubts, it is hereby declared that nothing in sub section (2) shall be construed as preventing any person from claiming refund of any rents or royalties paid by him in excess of the amount due from him under any such laws.
" The precise question before the Court was, whether a statute or a rule earlier declared by the Court to be unconstitutional or otherwise invalid can be retroactive through fresh validating legislation enacted by the competent legislature.
Answering this question in the affirmative, this Court, speaking through Krishna Iyer, J. observed: "where Parliament having power to enact on a topic actually legislates within its competence but, as an abbreviation of drafting, borrows into the statute by reference the words of a State Act not qua State Act but as a convenient shorthand, as against a longhand writing of all the sections into the Central Act, such legislation stands or falls on Parliament 's legislative power, vis a vis the subject viz., mines and minerals.
The distinction between the two legal lines may sometimes be fine but always is real.
807 If Parliament has the power to legislative on the topic, it can make an Act on the topic by any drafting means, including by referential legislation." "Taking a total view of the circumstances of the Validation Act Parliament did more than simply validate an invalid law passed by the Bihar Legislature but did reenact it with retrospective effect in its own right adding an amending Central Act to the statute book.
" The position in the instant case is entirely different.
Here, Parliament despite its presumed awareness of the impugned Notification, has said nothing in the Amending Act of 1959, indicating that it (Parliament) has by 'longhand ' or 'shorthand ' method incorporated, re enacted or validated the impugned notification or the amendment sought to be made thereby, while passing the Amendment Act, 1959.
The appellate Bench was therefore in error in holding that Parliament had validated or re enacted referentially with retrospective effect what was sought to be done by the impugned notification, when it passed the Amending Act, 1959.
The High Court has tried with the aid of this Court 's decision in Venkatrao vs State of Bombay (supra) to spell out the proposition that mere amendment of an Act by a competent legislature, amounts to re enactment of the parent Act.
We find nothing in this Court 's decision in Venkatrao 's case which warrants the enunciation of such a sweeping rule.
All that was decided in Venkatrao 's case was that the assent given by the President to the Amending Act would be deemed to be an assent accorded to the parent Act, also.
The decision in Venkatrao 's case therefore does not advance the case of Shri B. Sen. Shri B. Sen 's alternative argument that the notifications whereby the exemptions from tax have been withdrawn in regard to Durries, pure silk, country liquor etc.
are not assailable because those exemptions were earlier granted without giving three months ' notice, is manifestly unsustainable.
Firstly, so far as fruits, fresh and dried (item 8), Pepper, tamarind and chillies (item 11), Turmeric (item 14), ghee (item 16), and knitting wool, (item 21A) are concerned, they were exempted goods in the Schedule of the Bengal Act, as modified and extended by the Notification, dated 28 4 1951, to Delhi.
No question of giving notice for granting these exemptions therefore arose.
Secondly, the validity of the notifications whereby exemptions were granted to pure silk, liquor etc.after the extension of the Bengal Act to Delhi is not in issue.
This plea was not set up by the Respondents in their affidavits.
Whether or not notice for the requisite period was given before issuing the exemption notifications, was a question of fact depending on evidence.
Thirdly, to allow the Respondents to take their stand on such a plea would be violative of the fundamental principle of natural justice, according to which, a party cannot be allowed to take advantage of its own lapse or wrong.
The statute 808 has imposed a peremptory duty on the Government to issue notice of not less than three months, of its intention to amend the Second Schedule.
It therefore cannot be allowed to urge that since it had disobeyed this mandate on an earlier occasion when it granted the exemptions it can withdraw the exemptions in the same unlawful mode.
Two wrongs never make a right.
Nor could the Respondents derive any authority or validity from section 21 of the General Clauses Act, for the notifications withdrawing the exemptions.
The source from which the power to amend the Second Schedule, comes is section 6(2) of the Bengal Act and not section 21 of the General Clauses Act.
Section 21, as pointed out by this Court in Gopichand vs Delhi Administration(1) embodies only a rule of construction and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification.
The power therefore had to be exercised within the limits circumscribed by section 6(2) and for the purpose for which it was conferred.
For all the foregoing reasons, we are of opinion that the impugned notification, dated 7 12 1957, purporting to substitute the words "such previous notice as it considers reasonable" for the words "not less than three months notice" in section 6(2) of the Bengal Act is beyond the powers of the Central Government, conferred on it by section 2 of the Laws Act.
In consequence, the notification dated 1 4 1958, 19 9 1959, 29 6 1966 and 31 7 1970 in so far as they withdrew the exemptions from tax in the case of Durries, pure silk, country liquor, kirayana articles etc.were withdrawn without complying with the mandatory requirement of not less than three months notice enjoined by section 6(2) of the Bengal Act, are also invalid and ineffective.
In the result we allow these appeals, set aside the judgment of the appellate Bench of the High Court and declare the Notification dated 7 12 1957, and the subsequent notifications in so far as they withdrew the exemptions from tax, mentioned above, to be unconstitutional.
In the circumstances of the case, we leave the parties to bear their own costs.
V.P.S. Appeals allowed.
| Section 2 of the Part States (Laws) Act, 1950, empowered the Central Government to extend by notification in the official gazette, to any Part C State, or to any part of it, with such restrictions and modifications as it thinks fit, any enactment in force in a Part A State.
In 1951, the Central Government, in exercise of this power, extended by a Notification the Bengal Finance (Sales Tax) Act, 1941, to the then Part State of Delhi with certain modifications in section 6.
The section, after such extension with modifications, provided: 6(1) No tax shall be payable under this Act on the sale of goods specified in the first column of the Schedule subject to the conditions etc: and (2) The State Government [Amended as Central Government in 1956] after giving by notification in the official gazette not less than 3 months notice of its intention to do so, may by like notification add to or omit from or otherwise amend the Schedule and thereupon the Schedule shall he amended accordingly A modified Schedule of goods exempted from tax under section 6 was also substituted for the original Schedule in the Bengal Act, by the Notification.
After the passing of the , the Part States (Laws) Act became .
with necessary adaptations.
In 1957, the Central Government issued a Notification in purported exercise of the powers under section 2 of the 1950 Act, amending the 1951 Notification.
By the 1957 Notification an additional modification of section 6 of the Bengal Act was introduced in the 1951 Notification, namely the words "such previous notice as it considers reasonable" were substituted for the words "not less than 3 months ' notice" in section 6(2).
In 1959, Parliament passed the Bengal (Sales Tax) (Delhi Amendment) Act, 1959, making some amendments in various sections of the Bengal Act but left section 6 untouched.
By various notifications, exemption from sales tax was granted to several commodities.
but subsequently, the exemption was withdrawn by other notifications after giving notice of less than 3 months.
Dealers in those commodities, who were aggrieved by the withdrawal of the exemption, challenged the validity of ' the withdrawal.
The High Court dismissed their petitions.
On the main ground that Parliament, while enacting the Amending Act of 1959, had put its seal of approval to the curtailed period of notice in section 6(2) and as such, it should be taken to have keen provided by Parliament itself in the Bengal Act.
786 Allowing the appeals to this Court, ^ HELD: The 1957 Notification purporting to substitute the words "such previous notice as it considers reasonable" for the words 'not less than 3 months ' notice" in section 6(2) of the Bengal Act, is beyond the powers of the Central Government, conferred on it, by section 2 of the ; and in consequence, the various notifications, in so far as they with drew exemptions from tax with respect to the several commodities, are invalid and ineffective, as the exemption was withdrawn without complying with the mandatory requirement of not less than 3 months ' notice enjoined by the section.
[808 D E] (1) (a) The primary power bestowed by section 2 of the , on the Central Government is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment already in force in a State.
The discretion conferred by the section to make "restrictions and modifications" in the enactment sought to be extended, is not a separate and independent power, which can be exercised apart from the power of extension, but is an integral constituent of the power of extension.
This is made clear by the use of the preposition "with" one meaning of which (which accords with the context) is "part of the same whole".
[801 E F] (b) There are 3 limits on the power given by section 2.
(i) The power exhausts itself on extension of the enactment.
It can be exercised only once, simultaneously with the extension of the enactment, but cannot be exercised repeatedly or subsequently to such extension.
(ii) The power cannot be used for a purpose other than that of extension.
In the exercise of the power, only such restrictions and modifications can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union Territory.
Modifications which are not necessary for, or ancillary and subservient to the purpose of extension, are not permissible.
Only such modifications can be legitimately necessary for such purpose, as are required to adjust, adapt, and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying it into operation and effect.
(iii) The words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature of the enactment or the legislative policy built into it.
[801G H, 802A] (c) If the words "such restrictions and modifications as it thinks fit" are given the wide construction of giving an unfettered power of amending and modifying the enactment sought to be extended, as contended by the respondent, the validity of the section itself becomes vulnerable on account of the vice of excessive delegation.
Moreover.
such a construction would be repugnant to the context and content of the section, read as a whole.
[802 B C] Rajnarain Singh vs The Chairman Patna Administration Committee Patna and Re: Delhi Laws Act; , , referred to.
(2) The 1957 Notification transgresses these limits in two respects : (a) The power has not been exercised contemporaneously with the extension or for the purposes of the extension of the Bengal Act to Delhi but 6.6 years thereafter.
The power of extension with restrictions and modifications had exhausted itself when the Bengal Act was extended to Delhi with some alterations by the 1951 Notification.
[802D E] The power given under section 2 of the 1950 Act, cannot be equated to the "Henry VIII clause" of the Acts of the British Parliament because while the power under section 2 can be exercised only once when the Act is extended, the power under a "Henry VIII clause" can be invoked, if there is nothing contrary in the clause, more than once on the arising of a difficulty when the Act is operative [802F H] Observations of Fazal Ali, J. at p. 850 in Re: Delhi Laws Act case explained.
787 (b) The alteration sought to be introduced in section 6(2) by the 1957 Notification goes beyond the scope of the "restrictions and modifications" permissible under section 2 of the 1950 Act, because, it purports to change the essential features of section 6(2) and the legislative policy inherent therein.
[803F] Section 6(2) before the issue of the 1957 Notification, requiring the Government to give "not less than 3 months ' notice" of its intention to add to or omit from or otherwise amend the Schedule to the 1950 Act, embodies a determination of legislative policy and its formulation as an absolute rule of ' conduct could be diluted, changed or amended only by the legislature, in the exercise of its essential legislative function, which could not be delegated to the Government.
[803G 804E, F, G] (i) The language of the sub section as it stood is emphatically prohibitive and it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than 3 months, showing that the provision was mandatory and not directory.
[804 A B] (ii) The scheme of the Bengal Act is that the tax is to be quantified and assessed on the quarterly turnover.
and the period of not less than 3 months, notice conforms to the scheme and ensures that the imposition of a new tax of exemption does not cause dislocation or inconvenience either to the dealer or the Revenue.
[804B] (iii) By fixing the period at not less than 3 months, purchasers on whom the incidence of tax really falls have adequate notice of taxable items.
[804 C] (iv) Dealers and others likely to be affected by an amendment of the Schedule get sufficient time to make representations and adjust their affairs.
[804 D] The span of notice was thus the essence of the legislative mandate.
The necessity of notice and the span of notice both are integral to the scheme of the provision and it cannot be split up into essential and non essential components, the whole of it being mandatory.
[804 E F] Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur, ; , distinguished.
(3)(a) Pt.
Benarsi Das Bhanot vs State of Madhya Pradesh does not assist the respondent.
That was a case where the contention that 5.
6(2) of the C.P. & Bihar Sales Tax Act, 1947, was invalid on the ground of excessive delegation, was rejected, by the Court.
In the present case, it is the validity of a Notification purported to be issued under section 2 of the 1950 Act that is impeached as beyond the powers of modification conferred by the section.
[804H, 805A] (b) In the present case, the Central Government did not directly amend section 6(2).
More than 6 years after the extension of the Act by the 1951 Notification, it amended the sub section indirectly by amending the 1951 Notification.
But on the extension of the Act to Delhi, the 1951 Notification had exhausted its purpose, and the purported amendment, through the medium of such a "dead" Notification is an exercise in utility.
Further, an amendment which was not directly permissible could not be done indirectly.
[805 B, C] (4) The High Court was in error in holding that Parliament had validated or re enacted referentially, with retroactive effect, what was sought to be done by the 1957 Notification when it passed the Amending Act, 1959.
[807C] The Amending Act leaves section 6(2) untouched.
It does not even indirectly refer to the 1957 Notification or the amendment purportedly made by it in section 6(2).
Nor does it re enact or validate what was sought to be achieved by that notification.
No indication of referential incorporation or validation of the 1957 Notification or the amendment sought to be made by it, is available either in the Preamble or in any other provision of the Amending Act.
Parliament despite its presumed awareness of the 1957 Notification, has said nothing in the Amending Act indicating that it has in any manner incorporated, re enacted or 788 validated the 1957 Notification or the amendment sought to be made thereby, while passing the Amending Act, 1959.
[805 E F, 807 B C] Krishna Chandra vs Union of India, A.I.R. 1975 S.C. 1389, referred to, (5) A mere amendment of an Act by a competent legislature does not amount to re enactment of the parent Act.
[807D] Venkatarao Esajirao Limberkar 's case [1970] 1 S.C.R. 317, explained.
(6) The respondent cannot contend that if the withdrawal of exemption without giving 3 months" notice was illegal, then the grant of exemption without giving 3 months ' notice was also void.
[808 A] (a) Some of the goods were granted exemption by the 1951 Notification itself and, hence, there is no question of giving notice for giving those exemptions.
[807 G] (b) The validity of the notifications granting exemptions after the extension of the Act to Delhi is not in issue in the writ petitions.
and whether or not the requisite notice was given before granting exemption is a question of fact depending on evidence.
[807G] (c) To allow the respondent to take such a plea would be violative of the fundamental principle of natural justice, according to which a party cannot be allowed to take advantage of his own lapse or wrong.
[807 H] (7) The respondent cannot also rely on section 21 of the General Clauses Act, because, the source of the power to amend the Schedule to the 1950 Act.
is section 6(2) of the Bengal Act and not section 21 of the General Clauses Act, and the power has to be exercised within the limits of section 6(2) and for the purpose for which it we conferred.
[808 B] Gopichand vs Delhi Administration, [1959] Suppl.
2 S.C.R. 87, referred to.
|
Civil Appeal No. 4160 of 1985 From the Judgment and Order dated 25.
6. 1984 of the Kerala High Court in T. R. C. No. 19 of 1984.
1075 V. J. Francis for the Appellant.
A R.M. Ansari ,Markose Vellpally and D. N. Misra, for the Respondent, The Judgment of the Court was delivered by BHAGWATI, J.
The sole question which arises for determination in this appeal is as to what is the rate at which the goods which had been purchased earlier and which were in stock with the assessee on 30 6 74 were assessable to purchase tax when the purchases were found to be last purchases as a result of events which took place subsequent to 30.
6. 1974 This question has become C material since the rate of purchase tax was increased from 3% to 5% with effect from 1st July, 1974.
Now it is not disputed in the present case that the purchases of goods effected by the assessee prior to 30 6 74 were last purchases within the State because the goods purchased which were in stock on 30 6 74 were subsequently sold by the assessee in the course of inter state trade or commerce Which means that they were not sold within the State and hence the assessee was clearly the last purchaser within the State and as such was liable to pay purchase tax under Item 71 of the First Schedule to the Kerala General Sales Tax Act.
Equally it is clear that the assessee could not be made liable to tax on the purchases made by it prior to 30th June 1974, unless s the purchases acquired the quality of being last purchases in the State.
It was pointed out by this Court in State of Madras vs Shri T. Naral anaswami Naidu & Anr. ; when the assessee ' files a return and declares the stock in hand, the stock in hand cannot be said to have been ac quired by last purchase because he may still during the next assessment year, sell it or he may consume it himself or the goods may be destroyed, etc.
He would be entitled to claim before the assessing authorities that the character of acquisition of the stock in hand was undetermined; in the light of subsequent vents it may or may not become the last purchase inside the State.
" There can therefore be no doubt that the assessee in the present case became liable to pay tax on the purchases made by it prior to 30th June, 1974, as soon as it became determined though subsequent to 30th June 1974, that these purchases were last purchases inside the State and were consequently exigible to tax.
But the question remains as to what is the rate at which 1076 the assessee was liable to be taxed in respect of these purchases.
Since the purchases took place before 30th June 1974, the assessee would, in our opinion, liable to be taxed at the rate prevailing at the time when the purchases were made and since the rate at that time was 3% of the sale price, the High Court was right in taking the view that the purchases made by the assessee prior to 30th June 1974 were taxable at the rate of 3%.
We may point out that a similar view has been taken by the Kerala High Court in Seaso Rubbers vs State of Kerala, 48 section T. C. 256.
We find ourselves in agreement with the reasoning adopted by the Full Bench of the High Court in that case.
We accordingly reject the appeal but with no order as to costs.
Appeal dismissed.
| The respondent assessee had made certain purchases before 30th June, 1974 and sold them subsequently in the course of inter state trade or commerce.
The rate of purchase tax under Item 71 of the First Schedule to the Kerala General Sales Tax was increased from 3% to 5% with effect from 1st July, 1974.
The High Court held that the purchases made by the respondent prior to 30th June, 1974 were taxable at the rate of 3%.
Dismissing the appeal to this Court.
^ HELD: The assessee could not be made liable to tax on the purchases made by it prior to 30th June, 1974, unless the purchases acquired the quality of being last purchases in the State.
In the instant case there can be no doubt that the assessee became liable to pay tax on the purchases made by it prior to 30th June, 1974, as soon as it became determined though subsequent to 30th June, 1974, that these purchases were last purchases inside the State and were conse quently exigible to tax.
Since the purchases took place before 30th June, 1974, the assessee would be liable to be taxed at the rate of 3% which was prevailing at the time when the purchases were made.
[1075E; G H; 1076B] State of Madras vs Shri T. Narayanaswami Naidu and Anr, ; , referred to.
Seaso Rubbers vs State of Kerala, 48 S.T,C. 256 approved.
|
Civil Appeal No. 4134 of 1991.
From the Judgment and Order dated 30.8.1991 of the Bombay High Court in Writ Petition No 3580 of 1991.
J.P.Pathak and P.H. Parekh for the Appellants.
A.M. Khanwilkar and S.K. Parshankar for the Respondents.
The Judgment of the Court was delivered by 229 KASLIWAL, J.
This appeal by grant of special leave is directed against the judgment of the Bombay High Court dated 30th August, 1991 in a suit for possession under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act).
The suit was dismissed by the 7th Additional Small Causes Judge.
On appeal the learned 10th Additional District Judge, Pune by Judgment dated 25.4.1991 set aside the order of the trial court and decreed the plaintiff 's suit for possession.
The tenants filed the writ petition in the High Court challenging the order of the Additional District Judge, But the same was dismissed and the decree for possession passed by the Additional District Judge was affirmed.
The trial court held that the service of notice dated 7.8.1980 on the defendant tenants was not held proved.
The plaintiffs were unable to prove that the postal acknowledgement Exhibit 51 Contained the signatures of defendant no 2 or 3.
It was held that on the point of service of notice the case of the plaintiff was rather confusing and not clear.
It was held that even assuming that the notice had been served yet the case did not fall under Section 12(3) (a) of the Act.
The trial court also held that the case did not fall under Section 12(3) (b) of the Act as the defendants had paid Rs. 55,800 on 16.1.1984 and thereafter made regular payment of Rs. 600 every month.
According to the learned trial court the issues were framed on 26.8.1985 and before that the defendants had made full payment as demanded in the notice and as such no decree can be passed under Section 12(3)(b) of the Act.
Learned Additional District Judge reversed the above finding of the trial court and held that the evidence of the plaintiff showed that the copy of the notice was sent to all the defendants by registered post.
The postal receipts have been filed as exhibits 52, 53 and 54.
Learned Additional District Judge further held that when the notices are sent by registered post it is presumed to have been served and mere denial by the tenants had no value, unless they proved some extraordinary happenings or events which prevented following of usual course of business.
Learned Additional District Judge further held that the notice was sent on the address given in the plaint and it was admitted by the defendant in his statement that it contained the correct address.
A presumption of service of notice was drawn under Section 27 of the General Clauses Act and Section 114 of the Evidence Act.
Learned additional District Judge though affirmed the finding of the trial court that the case is not covered under section 12(3)(a) of the Act, but the plaintiffs were entitled to a decree under Section 12(3) (B) of the Act.
In this regard learned Additional District Judge recorded the finding that the entire arrears of rent amounted to Rs. 71,088 but the defendant tenant only 230 deposited Rs 66.000 till the first date of hearing and thus remained in arrears of Rs. 5,088.
It was also held that the provisions of 12(3)(b) of the Act are mandatory provisions and those are required to be strictly complied with by the tenants during the pendency of the suit and also appeal when the landlord claims possession of the suit premises on the ground of Section 12(3)(b) of Act.
The defendant tenant did not deposit the entire arrears on the first date of hearing and did not deposit the further rent during the pendency of the appeal.
Thus the defendant persistently committed defaults during the pendency of the suit and also the appeal in paying the rent.
We have heard learned counsel for the parties and have thoroughly gone through the record.
It is important to note that M/s Kulkarni Patterns Pvt. Ltd/. (defendant No.1) Was the tenant, defendant No 2 Shri D G. Kulkarni was the Chairman of the company and defendant No 3 Mrs M.D. Kulkarni was the wife of defendant No 2 and Director of defendant No 1.
The plaintiffs sent a notice dated 7.8.1980 to all the defendants vide postal receipts Exhibit 52,53 and 54.
Exhibit 51 is only one acknowledgement receipt which has been produced on record.
It has been contended on behalf of the appellants that the learned Additional District Judge was wrong in drawing presumption of service of service of notice in the facts of the present case.
It was submitted that the plaintiff initially stated that the acknowledgement receipt Exhibit 51 contained the signatures of defendant NO.3, but subsequently admitted that it contained the signature of defendant No. 2.
It was further argued that defendant No.2.
had appeared in the witness box and clearly denied his signatures on Exhibit 51.
It was thus contended that the presumption of service of notice was rebutted and thereafter the burden lay on the plaintiffs to prove the service of notice by examining the postman or by other evidence and the plaintiffs having failed to do so, the service of notice having not established, the suit was liable to be dismissed.
Reliance in support of the above contention was placed on a decision of this Court to which one of us was a party in Green view Radio Service vs Laxmibai Ramji And Another.
, Reliance was placed on the following observations made in the above case.
"In this connection, we may also point out that the provisions of section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the 231 property.
The service is complete when the notice is sent by post.
In the present case, as pointed out earlier, the notice was sent by the plaintiff 's advocate by registered post acknowledgement due.
The acknowledgement signed by the party was received by the advocate of the plaintiff.
Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter.
If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him.
The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee.
This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement.
The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient.
But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post.
" In the present case the plaintiffs had sent a copy of the notice to all the three defendants by registered post.
Three postal receipts Exhibits 52, 53 and 54 have been filed in the present case and Exhibit 51, one acknowledgement receipt.
As regards Exhibit 51, the defendant No.2 has appeared in the witness box and has denied his signatures.
However, it has not been shown that this acknowledgement receipt was related to which of the three notices sent vide postal receipts Exhibits 52,53 and 54.
The plaintiffs have clearly proved that three notices were sent by registered post and which is clearly born out from the three postal receipts.
Admittedly the premises were taken on rent in the name of the defendant No.1 namely Kulkarni Patterns.
Pvt. Ltd. and it is proved that one of the notices by registered post was also sent to the company.
It has been admitted by the defendant No.2 in his statement that the notice was sent on the correct address.
The defendant No.2 in his statement has nowhere stated that no notice has bee received by the company.
The only denial is in respect of the acknowledgment receipt Exhibit 51 and the only inference which could legitimately be drawn is that in respect of one notice, it was not proved as 232 to who acknowledged the receipt of the notice.
We do not approve the following statement of law made by the learned Additional District Judge "that the evidence of the defendant did not show any extraordinary happenings or the events which prevented the following of usual course of business and thus, his mere denial has no value".
However, in the present case three notices were sent by registered post and one of which was sent in the name of the defendant company who was the tenant, a presumption can legitimately be drawn that the notice dated 7.8.1980 had been served on the company.
There is no rebuttal on behalf of the defendant as regards the notice served on the company and in the facts and circumstances of the present case we hold that notice dated 7.8.1980 sent by registered post was served on the defendant company, In Green View Radio Service (supra) it was held that the acknowledgement due receipt contained the signature of the addressee himself and the addressee as a witness stated that he never received such letter and the acknowledgement due did not bear his signature and such statement of the addressee if believed then it would be a sufficient rebuttal of the presumption drawn against him.
The burden will then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee.
Even applying this statement of law in the facts of the present case, the rebuttal, if any, made by defendant No.2 can be related only with regard to Exhibit to Exhibit 51 for one notice but not with regard to all the three notices sent by registered post vide exhibits 52 to 54 Thus, in the facts of the case in hand before us we are fully convinced that the service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to such presumption by the defendant appellants.
The requirement of sending notice under Section 12(2) of the Act is to be done in the manner prescribed under paragraph two of Section 106 of the Transfer of Property Act which reads as under.
"Every notice under this Section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable ) affixed to a conspicuous part of the property." The reading of the above provision clearly shows that the notice can be sent by post to the party who is intended to be bound by it.
Thus, the notice sent by registered post in the name of the defendant company who 233 is the tenant is fully in accordance with the requirement of section 106 of A the Transfer of Property Act.
So far as the finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of rent and full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed by the learned counsel for the appellants.
Thus, the learned Additional District Judge as well as High Court was right in passing a decree for possession under section 12(3)(b) of the Act.
As a result of the above discussion and findings recorded by us, we find no force in this appeal and the same is dismissed with costs.
Y.L Appeal dismissed.
| A notification u/s.4(1) of the Land Acquisition Act, 1894 was issued for acquisition of the questioned lands along with some other lands for the purpose of development of the town.
On 17.9.80 the same was quashed.
In 1985 another similar notification was issued u/s 4(1) of the Act, for acquisition of the same lands for the Scheme No.23 framed under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973.
The respondents challenged the notification before the High Court under Article 226 of the Constitution.
The High Court allowed the writ petitions annulling the notification and holding that the Scheme No.23 did not operate against certain specified lands of the respondents.
It also found that the statutory requirements for completing the scheme were not complied with and therefore, no action for acquisition under the Scheme could be taken.
These appeals were filed by the Development Authority against the High Court judgments by special leave.
Disposing of the appeals, this Court, HELD: 1.
The pre conditions had not been complied with strictly under the statutory provisions.
The High Court has not found any malafides.
The Development Authority in ques tion consisted of only one person.
His own order was perhaps taken by him and the gov 248 ernmental authorities as the requisite resolution.
The respondents did not take the ground that there was no valid authority behind the scheme.
[249 E F] 2.
The huge patch of land has been substantially improved upon under the scheme.
Cancellation of the notifi cation does not bring the matter to an end.
Obviously, fresh proceedings would be taken after complying with the defect if the judgment of the High Court is allowed to stand.
If the acquisition is not made the respondents should enjoy usual benefits of their land on account of the development of the neighbouring area and if the re acquisition is not made there would be claim for higher compensation.
[249 G250 A] 3.
It is directed that the acquisition remain to subject, to the condition that the notification under sec tion 4(1) of the Act issued in 1985 shall be deemed to be one dated 1.1.88 and the market value of the land for the acquisition shall be determined with reference to that date, and that as the deemed date of the notification under sec tion 4(1) to be postponed by almost three years and during this period since the appellant has brought about the bulk of the improvements in the neighbourhood, 25 per cent of the potential value of the land relatable to the improvements made by the appellant would only be available to the re spondents, but in fixing market value all other legitimate considerations shall be taken into account.
There is no intention to extend the benefit under section 28 of the Act to the owners of the lands already acquired under the noti fication of 1980 or 1985 on the basis of court 's direction that the respondents ' lands shall be deemed to have been notified under section 4(1) of the Act on 1.1.1988.
[250 B D]
|
tion No. 5723 of 1982 & 219 of 1986.
(Under Article 32 of the Constitution of India).
Mrs Pinky Anand and D.N. Goburdhan for the Petitioners.
B.B. Singh, Pramod Swarup, J.P. Verghese, LJ.
Vadakare and Ms. Kamini Jaiswal (N.P.) for the Respondents.
The following Order of the Court was delivered These two petitions under article 32 of the Constitution challenge the provisions of the Chhota Nagpur Tenancy Act which confines succession to property to the male line by contending that the provision is discriminatory against women and, therefore, ultra vires the equality clause in the Constitution.
Petitioner No. 1 in the first writ petition is the editor of a magazine while petitioners nos.
2 and 3 are two ladies of the 'Ho ' tribe, admittedly one of the sched uled tribes residing in Singhbhum district of Bihar.
The petitioners in the other writ petition belong to the 'Oraon ' tribe of the Chhota Nagpur area.
Challenge is essentially to sections 7 and 8 of the Chhota Nagpur Tenancy Act of 1908.
Sec tions 7 and 8 of the Act provide: "7.(1) Meaning of 'raiyat having khunt khatti rights '.
"Raiyat having khunt katti rights" means a raiyat in occupation of, or having any subsisting title to, land reclaimed from jungle by the original founders of the village or their descendants in the male line, when such raiyat is a member of the family which rounded the village or a descendant in the male line of any member of such family: Provided that no raiyat shall be deemed to have khunt katti 479 rights in any land unless he and all his predecessors in title have held such land or obtained a title thereto by virtue of inheri tance from the original founders of the vil lage.
(2) Nothing in this Act shall prejudicially affect the rights of any person who has law fully acquired a title to a khunt kattidari tenancy before the commencement of this Act.
Meaning of Mundan Khunt khattidar.
"Mundari khuntkattidar" means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes (a) the heirs male in the line of any such Mundari, when they are in possession of such land or have any subsisting title thereto; and (b) as regards any portions of such land which have remained continuously in the possession of any such Mundari and his descendants in the male line, such descendants.
" Reliance has been placed on a Division Bench decision of the Patna High court in the case of Jitmohan singh Munda vs Ramaratan Singh & Anr., in support of the proposition that the Patna High Court had more than 30 years back taken the view that the provision was not operative and a widow was also entitled to inherit.
When analysed the judgment of the Patna High Court does not seem to provide prop for the argument raised in the writ petitions.
In paragraph 4 of the judgment the High Court indicated: "The contention based on section 8 also terminologically cannot be accepted in the first place, in defining khunt kattidari interest.
As quoted above, the word used is "includes" whereafter occur clauses (a) and (b) containing reference to the male in the male line of a Mundari.
The word "includes" cannot be taken to be exhaustive.
It only states that the heirs in the male line alone are in the category of a Mundari khunt kattidari in their possession, but in implication it may well be that the heirs of the deceased Mundari who are females will not be entitled to succeed to it.
That does not mean that the section is so definite as to exclude the inclusion of the widow of the deceased Mundari as a person who can hold the land during 480 her life time.
Moreover, clause (a) refers to the heirs male in the male fine.
The word "line" is also significant be cause it evidently refers to a person who has descended from the deceased Mundari whose interest may be in question.
Even, therefore, if these words "the heirs male in the male line" were to be given exclusive meaning, then also it would mean only the persons who are descended from him or repre sent another male line altogether.
There is no reference whatsoever to the exclusion of the widow of the particular Mundari.
In my opinion, the position in respect of the interest of the widow of the deceased Mundari is the same in respect of this property as it would be her position in regard to the other properties of her late husband.
Since the court below has accepted that the family has followed the Hindu rites and Hindu religion, the widow of Kartik Singh would be entitled to be in possession.
Section 8, as I have discussed, is not inconsistent with this position of the widow and, as such, the court below took the correct view in holding that the plaintiff could not recover posses sion of the property during the life time of defendant No. 1, but he is entitled to a declaration that he will succeed after the death of the widow.
" The interpretation given of section 8 in the Division Bench decision, therefore, does not provide full support to the point raised before us by the writ petitioners in the two cases.
It was a case confined to its own facts and the Court proceeded to dispose of the case with reference to the widow by bringing in the concept of Hindu law on the finding that the family had adopted Hindu law and was not bound by its own caste custom.
At an earlier stage while one of these writ petitions was heard we had given time to the State of Bihar to consid er the feasibility of carrying out an amendment in the offending sections and to clearly provide that succession was not confined to the male in the male line.
A committee appears to have been set up by the State of Bihar to examine this question and it has come to the conclusion that by custom prevalent among the scheduled tribes a female heir is excluded from succession and in case the law was otherwise interpreted or changed and property was allowed to go into the hands of female heirs, there would be great agitation and unrest in the area among the scheduled tribe people who have custom based living.
Scheduled tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the 481 law can provide reasonable regulation in the matter of succession to property with a view to maintaining cohesive ness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter has not been examined by the State of Bihar and the feasibility of permitting inheritance and simultaneously regulating such inheritance for the purpose of ensuring that the property does not go out of the family by way of transfer or otherwise we arc of the view that in the peculiar facts of the case the State of Bihar should re examine the matter.
In these circumstances, instead of disposing of the two writ petitions by a final order we adjourn the hearing thereof for three months and direct the State of Bihar to immediately take into consideration our order and undertake the exercise indicated and report to the Court by way of an affidavit and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
This matter shall not be considered as part heard and shall be next listed before a Bench where Justice Kuldip Singh is one of the members.
R.P. Petitions adjourned.
| Chhota Nagpur Tenancy Act, 1908 confined succession to property to descendants in the male line of Scheduled Tribes covered by the Act.
The petitioners who were the ladies belonging to the 'Ho ' and 'Oraon ' Tribes of the Chhota Nagpur area contended that the provisions of Sections 7 & 8 of the Act were dis criminatory against women and, therefore, ultra vires the equality clause in the Constitution.
The Court at an earlier stage while hearing one of the writ petitions, gave time to the respondent State of Bihar to consider the feasibility of carrying out an amendment in the offending sections so as to clearly provide that succes sion was not confined in the male line.
In pursuance there of, a Committee was set up by the State which came to the conclusion that a custom prevailed among the Scheduled Tribes that a female heir be excluded from succession, and that if there was any change, and the property be allowed to go into the hands of female heirs there would be agitation and unrest.
Adjourning the hearing of the petitions, this Court, HELD: Scheduled Tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the law can provide reasonable regulation in the matter of succession to proper ty with a view to maintaining cohesiveness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter was not examined by the State, it should re examine the feasibility of permitting inheritance and simul taneously regulating such inheritance for the purpose of ensuring 478 that the property does not go out of the family by way of transfer or otherwise.
[480 H; 481 AB] Jitmohan Singh Munda vs Ramratan Singh & Anr., , referred to.
In the circumstances, hearing of the matter be adjourned for three months and the State of Bihar would immediately take into consideration the order and undertake the exercise indicated and report to the Court by way of an affidavit, and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
[481 B C]
|
Civil Appeal No. 1774 of 1990.
From the Judgment and Order dated 14.2.1990 of the Delhi High Court in C.W.P. No. 13 of 1990.
WITH CIVIL APPEAL No. 4457 of 1990.
, D.V. Sehgal, A.K. Goel, Mrs. Sheela Goel andK.K. Mohan for the Appellants.
Shanti Bhushan, S.S. Sharma, R.P. Kapur and Sanjay Kapur for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
These appeals by special leave are disposed of by this common judgment since they involve common questions.
Civil Appeal No. 1774 of 1990 is against the judgment of the Delhi High Court while Civil: Appeal No. 4457 of 1990 arises out of a similar judgment Of the Punjab & Haryana High Court.
The appellants in.
both these appeals are aggrieved by the promotion policy of.the respondent, the State Bank of India contained in Annexure ' 'A ' ,dated '31.10.1983 read with the Circular dated13.9.1989 for promotion 'from the cadre of junior Management Grade 1 (Rs. 1175 2675):to Middle Manage ment Grade II (Rs. 1825 2925).
The policy provides for two channels for promotion, namely, the Merit Channel and the Seniority Channel.
For filling vacancies by promotion from the cadre.
of Junior Management Grade 1 to that of Middle Management Grade II, 65%.
of the total Vacancies were re served for the Seniority Channel and the remaining 35% for the Merit Channel.
The challenge in these appeals is to the filling by promotion of the vacancies through the Merit Channel.
The criterion mentioned in the policy for the Merit Channel provides 40 per cent marks for written test, 10 per cent marks for seniority, 20 per cent marks for performance appraisal, 20 percent marks for interview and the remaining per cent marks for passing the examination held by the Bankers ' Institute called C.A.I.I.B.
The procedure adopted for taking into account 772 the marks obtained in the written test alone for shortlist ing.or screening instead of total of marks under all heads except interview forcalling a candidate for interview is challenged as arbitrary.
It is contended that the marks under another heads amounting to a maximum of 80 per cent instead of the maximum of 40 per. cent prescribed for the written test should be the proper criterion to call a candi date for interview in order to make a proper selection I on the basis of merit.
It is urged on behalf .of the appellants that by taking intoa ccount the marks of written test alone there is exclusion of other meritorious candidates whose aggregate including the marks obtaine dunder the other heads may exceed the corresponding aggregate of marks of candi dates obtaining higher marks in .written test alone.
On this basis the policy for filling vacancies from the Merit Chan nel by promotion is alleged to be arbitrary.
This is the common grievance in both these appeals.
An additional point urged in Civil Appeal No. 1774 of 1990 alone is that unfair means were adopted by some candidates at some centres in a particular circle where written tests were held which has vitiated the result of the written test.
On behalf of the respondent Bank, all the relevant documents were produced to negative both these submissions.
It was urged by learned counsel for the respondent that the provision for the Merit Channel for promotion was made in the policy to give accelerated promotion to the academically brilliant persons with the object of providing incentive to them and thereby improving the quality of personnel in the higher cadre.
He pointed out that the policy of deciding merit on the basis of written test alone has been consist ently followed and the Circular dated 13.9.
1989 was merely a clarification of the manner of preparation of the Select List to make the selection more objective and to yield better results by getting the most meritorious candidates from all circles.
This mode of preparation of Select List was adopted in 1989 also to overcome the deficiencies point ed out in the earlier years.
The object of choosing the most meritorious persons through this channel is better achieved by adopting the performance in the written test as the predominent factor for selection on .the basis of merit.
One of the attendant benefits achieved thereby is also to at tract more brilliant people into the Banking service with the prospects of accelerated promotion to the more meritori ous persofts.
The entry point for officers by direct re cruitment in the State Bank of India being the JUnior Man agement Grade 1, the prospect of the very first promotion being accelerated for academically brilliant.
persons pro vides greater incentive to the brilliant persons joining the service.
This is the justification given for adopting the policy of reserving 35 per cent of 773 the promotional vacancies to the next higher cadre through Merit Channel.
The object sought to be achieved in this manner and the making of such a provision to achieve the object of such a provision was rightly not assailed before us.
The only.
challenge was to the criterion of marks ob tained in the written test alone being the guiding factor to choose candidates who were to be called for interview.
We heard both sides at length and also closely scruti nised the Bank 's records relating to the formulation and implementation of the impugned promotion policy.
Our conclu sion is that no infirmity rendering this policy arbitrary and, there.fore, assailable on that ground is disclosed.
Keeping in view the laudable 'object of attracting academi cally brilliant candidates into the Bank 's service as offi cers by direct recruitment by giving incentive of accelerat ed promotion to the most meritorious amongst them who main tain a, high standard of achievement is conducive to public interest and cannot be faulted.
Of the serveral heads Under which the marks are divided for promotion to Merit Channel, written test and interview are the only ones which depend on the current performance.
The marks under the remaining three heads of seniority, performance appraisal and C.A.I.I.B. (passing of examination held by Bank 's Institute) relate to past performance of the candidate which are matters of record.
It is, therefore, the appraisal of the current performance by written test and interview which alone is the real part for a proper appraisal of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel.
In this situation, if the marks obtained in the written test alone are taken into account for preparing the Select List to call candidates for an interview depending upon the number of vacancies avail able in Merit Channel, the criterion adopted cannot be termed arbitrary.
As earlier indicated, the marks obtained for seniority, performance appraisal 'and C.A.I.I.B. are based on service record and not on appraisal of the candi date by a mode independent of service record for assessing the true current worth of the candidate.
Since, equal oppor tunity is available to all for competing through the Merit Channel, in addition to the prospects_through the Seniority Channel, the policy adopted cannot be treated as irrational, discriminatory or arbitrary.
No doubt there is always room for improvement and so also in the mode of implementation of this policy.
The learned counsel for the respondents assured us.that the Bank is vigilant and active in making any im provement which is called for as a result of experience or suggestions from any quarter.
The Bank 's endeavour to make the assessment of merit as objective as possible is also indicated by its efforts in that direction.
The record of 774 the Bank placed before us does satisfy us about the genuine ness and bona fides of the Bank 's endeavour in this direc tion.
It may also be indicated that the Circular dated 13.9.1989 for preparation of the Select List which was applied to the examination held thereafter in 1989 was an exercise in the same direction.
We are inclined to agree with this submission of the learned counsel for the respond ents.
One of the arguments of the learned counsel for the appellants that this circular was applied retrospectively was not substantiated by the facts since preparation of the list according to this circular in the examination held in 1989 was made subsequent to the issuance of this circular and it was an exercise in improvement of the mode Of selec tion.
We do not, therefore, find any merit in the submission on behalf of the appellants that the policy framed and the mode of its implementation for filling some of the promo tional posts through the Merit Channel is discriminatory or arbitrary.
This contention is, therefore, rejected.
We may, however, add that if there be any suggestion for a further improvement in the mode of implementation of this policy the same can be given to the management of the respondent Bank and we have no doubt, as assured by Shri Shanti Bhushan, the learned counsel for the respondent Bank that the worth while suggestions, if any, would be adopted by the Bank for future examinations.
The only other point which is confined to Civil Appeal No. 1774 of 1990 is the allegation of unfair means adopted at some centres where written test was held in the Delhi Circle.
We have scrutinised all the documents including a Report dated 1.9.1989 of Mr. V.D. Bhog on which strong reliance was placed on behalf of the appellants.
We are satisfied that no ground for any interference on this basis is made out.
The relevant records disclosed that an honest attempt was made on the part of the management of the Bank to examine all the points raised in the Report of Mr. V.D. Bhog and otherwise and in cases where an element of use of unfair means was found, necessary action was taken.
The Report dated 7.12.1989 by the General Manager (Operations) is relevant in this context and the materials placed before us show that necessary action was taken by the Bank to exclude the possibility of the results being affected by use of unfair means by any candidate and this was done even before filing of the writ petition by the appellants.
The ultimate results of the candidates at these centres who appeared for written test at these centres also assures us that neither was there any mass copying at these centres nor is the final result shown to have been influenced by use of unfair means by any candidate.
It is also disclosed by the records that the complaint which led to the report by.
775 Shri V.D, Bhog was made by twenty seven candidates out of whom twenty four had obtained high marks themselves and.
out of them twelve were actually selected by inclusion in the final list of selected candidates.
This additional ground urged on behalf of the appellants in Civil Appeal No. 1774 of 1990 also cannot be accepted.
Consequently; both these appeals fail and are dismissed.
No costs.
V.P.R. Appeals dis missed.
| The petitioner Company was engaged in the business of manufacture of aluminium products and its factory was locat ed at Kalwa in Thane District, obtaining aluminium as raw materials from its another factory, situated In a different State.
With effect from 1.10.82 the Company at Kalwa was included in the municipal Jurisdiction of Thane, and prior to that date, the Company did not have to pay any octroi on the raw materials brought into its factory at Kalwa.
The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the petition er Company at the rate of from 1.10.1982 to 14.4.1987 and from 15.4.87 at the rate of 2%.
On 18.5.87 the Thane Manufacturer 's Association made a representation to the respondent Corporation about the increase in octroi rates.
The respondent Corporation in Its letter dated 20.11.1987 pointed out that when raw material specified In Entry 77 in Schedule I to the Maharashtra Municipalities (Octroi) Rules imported for use in the manufacture of fin ished goods, It would be subject to the levy of octroi not exceeding 1.25% and not less.
On receipt of this letter, the petitioner Company made detailed enquiries and was informed that under Rule 4 of the Rules the goods mentioned In Part IA of the Schedule I1, which were imported, were liable to be subjected to octroi at a lower rate.
The Company also noticed further 209 that Part IA of the Rules provided that the goods specified in Entry 77, when imported by an industrial undertaking for use as a raw material for processing within that undertaking and if a declaration in Form 14 was filed, the levy of octroi in such cases would not exceed 12.5% and would not be less than 0.25%.
The petitioner, however, had not filed any Form 14 duly filled in and according to it, it acted under a mistake of law and under the bonafide impression that the octroi levied on and recovered by the Corporation at the rate of 1.3% in respect of the period from 1.10.82 to 14.4.87 and at the rate of 2% from 15.4.87 onwards, represented the correct rate.
On 8.3.1988 the petitioner Company in its letter to the respondent Corporation stated that under a mistake of law it paid excess amount and same should be refunded.
On 16.5.1988, the respondent Corporation replied that as the petitioner Company had not complied with the procedure specified in Part IA of the Schedule 11 to the Rules for availing such concessional rates and therefore the refund could not be sanctioned.
On 19.4.1989 the petitioner Company claimed a refund of total amount of Rs. 13,54,101.79 p.
The respondent rejected the claim, against which the Company filed a writ petition in the High Court, seeking refund.
A Division Bench of the High Court dismissed the writ petition holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filled with the octroi authorities.
Questioning the High Court 's Order, this Special Leave Petition was filed.
The petitioner Company contended that a procedural failure should not disentitle the petitioner Company, pro vided, if otherwise the Company could have legitimately claimed.
The respondent Corporation submitted that the conces sional rate would be available only if the raw material was utilised by the Company for manufacturing goods within the industrial undertaking; that if a declaration had been filed in proper Form 14 there could have been a 210 scope for verification and in the absence of such a declara tion the question of refunding at this distance of time did not arise; and that the concession should have been availed at the time when it was available, and having failed to avail, the question of claiming the same later did not arise.
Dismissing the petition, this Court, HELD:.
A verification at the relevant time by the octroi authorities becomes very much necessary before a concession can be given.
In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify.
Therefore the petitioner Company has definitely failed to fulfil an important obliga tion under the law though procedural.
[214 F] 2.
The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has seized to be there.
May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be.
In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a proper verification.
[214 H, 215 A] 3.
A concession has to be availed at the time when it was available and in the manner prescribed.
[216 D] 4.
The concession can be granted only if the raw materi al is used in the industrial undertaking seeking such con cession.
For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification.
Fail ure to file the same would automatically disentitle the Company from claiming any such concession.
[218 C D] 5.
In the instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers.
Therefore, there is no justification to claim the same at this distance of time and the court in its discretion can reject the same.
[218 G] kirpal Singh Duggal vs Municipal Board Ghaziabad, [ ; ; HMM Limited and another vs Administrator, Bangalore City Corporation and another, [1989]4 SCC 640, distinguished.
Kedarnath Jute Manufacturing Co. vs Commercial Tax Officer, Calcutta 211 and Ors.; , , followed.
Orissa Cement Ltd. vs State of Orissa & Ors., AIR 1991 SC 1676, referred to.
Dictionary of English Law by Earl Jowitt; Halsbury 's Laws of England, 4th Edn.
Para 198, referred to.
|
Appeal No. 315 of 1962.
Appeal by special leave from the judgment and order dated November 16,1960 of the Andhra Pradesh High Court in A.S. No. 397 of 1957.
A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellant.
D.Narasaraju, Advocate General for the State of Andhra Pradesh, T.V.R. Tatachari and P.D, Xenon, for the respondent.
January 25.
The judgment of the Court was delivered by GAJENDRAGADKAR, J.
The short question which arises in this appeal is whether the suit instituted by the appellant, Firm of Illury Subbayya Chetty & Sons, in the court of the Subordinate judge at Kurnool, seeking to recover Rs. 8,349/ from the respondent, the State of Andhra Pradesh, on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939 (Mad. IX of 1939) (hereinafter called the Act) for the years 1952 54 is competent or not ; and this question has to be determined in the light of the scope and effect of section 18 A of the Act.
756 The appellant is a firm of merchants carrying on commission agency and other business at Kurnool and as such, it purchases and sells ground nuts and other goods on behalf of principles for commission.
For the year 1952 53 the Sales tax authorities included in the appellant 's taxable turnover an amount of Rs. 3,45,488/12/10 representing groundnut sales and collected the tax on the total turnover from it in September, 1953 when the amount of the said tax was determined and duly adjusted.
The said turnover of Rs. 3,45,488/12/10 in fact represented sales of groundnuts and not purchases and tax was recovered from the appellant on the said amount illegally inasmuch as it is only on purchase of groundnuts that the tax is leviable.
As a result of this illegal levy, the ' appellant had to pay Rs. 5.398/4/3 for the said year.
Similarly, for the subsequent year 1953 1954 the appellant had to pay an illegal tax of Rs. 1,159/11/,9.
In its plaint, the appellant claimed to recover this amount together with interest @ 12% per annum and that is how the claim was valued at Rs. 8,349/ .
This claim was resisted by the respondent on two grounds.
It was urged that the suit was incomepetent having regard to the provisions of section 18 A of the Act; and on the merits it was alleged that the transactions in regard to groundnuts on which s lestax was levied and recovered from the appellant were transactions of purchase and not of sale.
In this connection, the respondent referred to the fact that the appellant itself had included the transaction in question in the return submitted by it in form A and that it was making payments tentatively every month to be adjusted after the final assessment was made at the end of the year.
Accordingly, the final adjustment was made in September and the total amount due from the appellant duly recovered.
Thus, the appellant having voluntarily made the return and paid the taxes, it was not open to him to 757 contend that the transactions in regard to groundnuts were not taxable under the Act.
Besides, the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial taxes or to the Sales Tax Appellate Tribunal ; and so, it had not availed itself of remedies provided by the Act.
On these pleadings, the trial Court framed three principal issues.
The first issue was whether the suit was barred by section 18 A of the Act; the second was whether there had been excess collection of sales tax for the two years in question and if so, how much ? And the third issue was whether the appellant was estopped from questioning the validity of the assessment ? According to the trial court, the respondent had failed to prove its pleas against the apppellant 's claim and so, it recorded findings in favour of the appellant in all the three issues.
In the result, a decree followed in favour of the appellant for the recovery of Rs. 6,558/ with interest 6% per annum from November 12, 1955 till the date of payment.
This decree was challenged by the respondent by preferring an appeal before the High Court of Andhra Pradesh.
It appeared that the decision of the said High Court in the case of State of Andhra Pradesh vs Shri Krishna Cocoanut Co. (1), was in favour of the view taken by the trial Court ; but the respondent urged before the High Court that the said decision was erroneous in law and require reconsideration.
That is why the respondent 's appeal was placed before a Full Bench of the High Court.
The Pull Bench has upheld the contentions raised by the respondent.
It has held that in view of the provisions of section 18 A of the Act, the suit is incompetent.
Alternatively, it has found that on the merits, the claim made by the appellant was not justified.
The result of these findings was that the respondent 's appeal was allowed and the appellant 's suit was dismissed (1) (1960) 1 Andhra W.R.279. 758 with costs.
The appellant had filed cross objections claiming additional interest on the decretal amount, but since its suit was held to be incompetent by the High Court, its cross objections failed and were dismissed with costs.
it is against this decree that the appellant has come to this Court by special leave.
Mr. Ranganathan Chetty for the appellant contends that the High Court was in error in coming to the conclusion that the appellant 's suit was incompetent because he argues that the High Court has misjudged.the effect of the provisions of section 18 A In dealing With the question wether civil courts jurisdiction to entertain suit is barred or not it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary.
The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature .The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the , civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute.
It is, therefore,necessary to enquire whether s.18 Aexpressly or by necessary implication excludes the jurisdiction of the civil court to entertain a suit like the present.
Section 18 A provides that no suit or other Proceeding shall, except as expressly provided in this Act.
be instituted in any Court to set aside or modify any assessment made under this Act.
It is common ground that there is no express provision made in the Act under which the present 759 suit can be said to have been filed, and so, it falls under the prohibition contained in this section.
The prohibition is express and unambiguous and there can be no doubt on a fair construction of the section that a suit cannot be entertained by a civil court if, by instituting the suit, the plaintiff wants to set a side or modify any assessment made under this Act.
There is therefore, no difficulty in holding that this section excludes the jurisdiction of the civil courts in respect of the suits covered by it.
It is, however, urged by Mr. Chetty that if an order ',of assessment has been made illegally by the appropriate authority purporting to exercise its powers under the Act, such an assessment cannot be said to be an assessment made under this Act.
He contends that the words used are "any assessment made under this Act" and the section does not cover cases of assessment which are purported to have been made under this Act.
In support of this argument he has referred us to the provisions of section 17 (1) and section 18 where any act done or purporting to be done under this Act is referred to.
It would, however, be noticed that having regard to the subject matter of the provisions contained in sections 17 (1) and 18 it was obviously necessary to refer not only to acts done, but also to acts purporting to be done under this Act.
Section 17 (1) is intended to bar certain proceedings and section 18 is intended to afford an indemnity and that is the reason why the legislature had to adopt the usual formula by referring to acts done or porting to be done.
It was wholly unnecessary purl to refer to cases of assessment purporting to have been made under this Act while enacting section 18 A, because all assessments made under this Act would attract the provisions of section 18 A and that is all that the legislature intends section 18 A to cover.
The expression " 'any assessment made under this Act" is, in our opinion, wide enough to coverall 760 assessments made by the appropriate authorities under this Act whether the said assessments are correct or not.
It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment that clearly falls within the scope of s.18 A. The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law, the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act.
Whether or not an assessment has been made under this Act will not depend on the correctness or the accuracy of the order passed by the assessing authority.
In determining the applicability of s.18 A. the only question to consider is: "Is the assessment sought to be set aside or modified by the suit instituted an assessment made under this Act or not?" It would be extremely anomalous, to hold that it is only an accurate and correct order of assessment which falls under s.18 A.
Therefore, it seems to us that the orders of assessment challenged by the appellant in its suit fall under s.18 A.
In this connection, it is necessary to emphasise that while providing for a bar to suits in ordinary civil courts in respect of matters covered by s.18 A, the legislature has taken the precaution of safeguarding the 'citizens ' rights by providing for adequate alternative remedies.
Section 11 of the Act provides for appeals to such authority as may be prescribed; section 12 confers revisional jurisdiction on the authorities specified by it; s.12 A allows an appeal to the appellate Tribunal; s.12 B provides for a provision by the High Court under the cases specified in it; s.12 C provides for an appeal to the.
High Court; and section I 2 D lays down that petitions, applications and appeals to High Court should be heard by a Bench of not 761 less than two judges.
The matter can even be brought to this Court by way of a petition under article 130 of the Constitution.
It would thus be seen that and dealer who is aggrieved by an order of assessment passed in respect of his transactions, can avail him self of the remedies provided in that behalf by these sections of the Act.
It is in the light of these elaborated alternative remedies provided by the Act that the scope and effect of s.18 A must be judged.
Thus considered, there can be no doubt that where and order of assessment has been made by an appropriate authority the provisions of this Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or the revisional forum prescribed by the relevant provisions of the Act.
A suit instituted for that purpose would be barred under section 18 A.
The facts alleged by the appellant in this case are somewhat unusual.
The appellant itself made voluntarly returns under the relevant provisions of the Act and included the groundnut transactions as taxable transactions.
It was never alleged by the appellant that the said transactions were transactions of sale and as such, not liable to be taxed under the Act.
It is true that under s.5A(2) groundnut is made liable to tax under s.3(1) only at the point of the first purchase effected in the State by a dealer who is not exempt from taxation under section 3(3), but at the rate of 2% on his turnover.
When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time, it treated the groundnut transactions as taxable under s.5A(2).
In other words, the appellant itself having conceded the taxable character of the transactions in question, no occasion arose for the taxing authority to consider whether the said transactions could be taxed or not; and even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge 762 before the appellate authority that the transactions were sale transactions and as such, were outside the purview of s.5A(2).
If the appellant had urged that the said transactions were outside the purview of the Act and the taxing authority in the first instance had rejected that contention, there would be no doubt that the decision of the taxing authority would be final, subject, of course, to the appeals and revisions provided for by the Act.
The position of the appellant cannot be any better because it did not raise any such contention in the assessment proceedings under the Act.
If the order made by the taxing authority under the relevant provisions of the Act in a case where the taxable character of the transaction is disputed is final and cannot be challenged in a civil court by a separate suit, the position would be just the same where the taxable character of the transaction is not even disputed by the dealer who accepts the order for the purpose of the Act and then institutes a suit to set it aside or to modify it.
The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions.
We may in this connection refer to two decisions of the Privy Council.
In Secretary of State vs Mask.
& Coy., (1) the Privy Council was dealing with the effect of the provisions contained in section 188 of the Sea Customs Act (VIII of 1878).
The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power 'of revision conferred by section 191, be final.
Dealing with the question about the effect of this provisions the Privy Council observed that 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.
Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that (1) (1940) 67 I.A. 222,236, 763 "it is also well settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
" It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with.
Non compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction.
Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question.
It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.
In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject matter of a suit because section 18 A clearly bars such a claim in the civil courts.
The next decision to which reference may be made was pronounced by the Privy Council in the 764 case of Releigh Investment Coy.
Ltd. vs GovernorGeneral in Council (1).
In that case the effect of section 67 of the Indian Income tax Act fell to be considered.
The said section, inter alia, provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act.
It would be noticed that the words used in this section are exactly similar to the words used in section 18 A with which we are concerned.
In determining the effect of section 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income tax Act bearing on the assessment made is or is not ultra vires.
The presence of such machinery observed the judgment, though by no means conclusive, marches with a construction 'of the section which denies an alternative jurisdiction to enquire into the same subject matter.
It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income tax Act; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under section 66 (1) of the Act. ' It is not necessary for us to consider whether this assum ption is well founded or not.
But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal.
The clause "assessment made under this Ace ' which occurs in section 18 A. also occurs in section 67 with (1)(1947) 74 I.A. 50, 68. 765 which the privy Council was concerned, and in construing the said clause, the Privy Council observed that "the phrase "made under this Act" describes the provenance of the assessment : it does not relate to its accuracy in point of law.
The use of the machinery provided by the Act, not the result of that use, is the test " These two Privy Council 's decisions support the conclusion that having regard to the scheme of the Act, section 18 A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present.
In the result, we must hold that the view taken by the High Court is right and so, the appeal fails and is dismissed.
There would be no order as to Appeal dismissed.
| The appellant filed a suit against the respondent for a decree for Rs. 8339/ on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939, for the years 1952 54.
The respondent 753 resisted the claim on the ground that the suit was incompetent under section I 8 A of the Act.
On the merits, it was contended that the transactions in regard to groundnuts on which sales tax was levied and recovered from the appellant were transactions of purchase and not of sale, and it was urged that the appellant having voluntarily made the return and paid the taxes, it was not open to it to contend that the transactions were not taxable under the Act.
Besides it was argued that the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial Taxes or to the Sales Tax Appellate Tribunal against the assessments and bence the suit was not maintainable.
The suit was decreed by the trial court but the High Court reversed that decision and dismissed the suit on the ground that in view of the provisions of section 18 A of the Act, the suit was incompetent.
Alternatively.
it was found on merits that the claim made by the appellant was not justified.
The appellant came to this Court by special leave.
Held, that section 18 A excludes the jurisdiction of Civil Courts to set aside or modify any assessment made under the Act.
There is no express provision in the Act under which the suit can be said to have been filed and it falls under the prohibition contained in this section.
The prohibition is express and unambiguous and no suit can be entertained by a Civil Court, if by instituting the suit.
the plaintiff wants to set aside or modify any assessment made under the Act.
Where an order of assessment has been made by an appropriate authority under the provisions of the Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or revisional forum prescribed by the relevant provisions of the Act.
A suit instituted for that purpose is barred under section 18 A. When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time, it treated the groundnut transactions as taxable.
The appellant having conceded the taxable character of the transactions in question, no occasion arose for the taxing authorities to consider whether the said transactions could be taxed or not.
Even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge before the appellate authority that.
the transactions were sale transactions and as such were outside the purview of section 5A (2).
If an order made by a taxing authority under the relevant provisions of the Act in a case where the taxable character of a transaction is disputed, is final and cannot be challenged in a civil court by a separate suit, the position is just 754 the same where the taxable character of the transactions is not even disputed by the dealer who accepts the order for the purposes of the Act and then institutes a suit to set aside or modify it.
The expression "any assessment made under this Act" is wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments arc correct or not.
It is the activity of the assessing officer acting as such officer which is intended to be projected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment, that clearly falls within the scope of section 18 A.
The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act.
Whether or not an assessment has been made under this Act will not depend on the correctness or accuracy of the order passed by the assessing authority.
There is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and such a remedy could be held to be barred only on very clear and unmistakable indications to the contrary.
The exclusion of jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to the effect or leads to a necessary and inevitable implication of that nature.
The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute.
There is no justification for the assumption that if a decision has been made by a taxing authority under the provisions of a taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on merits and as such it can be claimed that the provisions of the said statute have not been complied with.
Non compliance with the provisions of the statute must be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction.
If an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and that infirmily may affect the validity of the order passed by the authority in question.
It is cases of this character where the 755 defect or infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.
Secretary of State vs Mask & Co., (1940) 67 I.A. 222 and Reliegh Investment Co. Ltd. vs Governor General in 'Council, (1947) 74 I.A. 50, relied on.
State of Andhra Pradesh vs Sri Krishna Coconut Co. (1960) 1 Andhra W.R. 279, overruled.
|
ivil Appeal No. 1824 of 1991.
From the Judgment and Order dated 14.5.1990 of the Orissa High Court in O.J.C. No. 4426 of 1989.
401 Shanti Bhushan and Prashant Bhushan for the Appellant.
Gobind Das, S.B. Upadhyay, Harish Salve, Ms. Kirti Misra and S.R. Grover for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Leave granted.
The only question which falls for consideration in the present case is what is the meaning of "Implementation Machinery" within the meaning of the Code of Discipline (hereinafter referred to as the "Code") ratified by all Central Employers ' and Workers ' Organisations at the 16th session of the Indian Labour Conference held in May 1958 and which came into force from June 1, 1958.
The question assumes importance in the present case because the High Court by the impugned decision has held that since the appellant Union had addressed its application for recognition not to the Implementation Machinery but to the Implementation Officer, the same was not properly made and the Implementation Officer had no authority to initiate the process of recognition.
The admitted facts are that the appellant Rourkela Sramik Sangh had addressed a letter on October 9, 1989 to the Implementation and Evaluation Officer cum Labour Comissionner Orissa, Cuttack intimating him that as per the Code it had called upon the Rourkela Steel Plant to recognise it as the sole bargaining agent in the Plant, but that the Plant had not replied to the same.
The appellant in the said letter had further requested the Labour Commissioner to pass orders for immediate verification of the membership of all the trade unions operating in the said Plant and to recommend for recognition, the Union having majority of the membership.
On receipt of this request, the Labour Commissioner as the Implementation and Evaluation Officer authorised the Deputy Labour Commissioner on December 5, 1989 to carry out the process of verification of the membership of the registered trade unions.
In pursuance of the same, the Deputy Labour Commissioner passed an order on December 14, 1989 calling upon the different trade unions to produce the necessary records within 10 days of the receipt of the notice.
These orders passed by the Labour Commissioner and Deputy Labour Commissioner were challenged by the Ist respondent Rourkela Mazdoor Sabha which is a rival union in the Plant by way of a Writ Petition being OJC No. 4426 of 1989 in the High Court of Orissa.
At the same time, the appellant 402 Union filed a Writ Petition being OJC No. 361 of 1990 seeking a direction to the Labour Commissioner, and the Deputy Labour Commissioner to complete the verification of the membership of the Unions and to fix a time limit to complete the process and recognition and for ancillary reliefs.
Both the writ petitions were heard together by a Division Bench of the High Court and by its impuged common judgment, the Court was pleased to allow the Ist respondent 's petition and dismiss the appellant 's petition.
The decision of the Court was based only on the finding that the Implementation and Evaluation Officer was not the "Implementation Machinery" under the Code and the Implementation Officer had no authority to process the application for recognition.
The relevant provisions of the Code are as follows: Section II of the Code deals with "Implementation Machinery" and is headed as such.
It begins as follows: "2.
To implement the Code of Discipline, labour enactments, awards and agreements, a separate machinery has been set up at the Centre and in all States.
This machinery comprises: (a) implementation units in Labour Departments, and (b) tripartite implementation committees at the Central, State and local levels.
" Thereafter it proceeds to deal with Implementation Units and states as follows: "(i) Implementation Units: 3.
A Central Implementation and Evaluation Division has been set up in the Ministry of Labour and Employment under the charge of a Joint Secretary.
In the State also, Implementation Units have been set up under the charge of either a whole time officer of the Labour Department or of the State Labour Commissioners.
According to the recommendations of the Labour Ministers ' Conference held in January, 1960 the Implementation Officer in each State should, as far as possible, he whole time and of sufficient seniority.
The following functions have been assigned to 403 Implementation Units: (1) to ensure Implementation of the Code of Discipline, Code of Conduct, labour enactments, awards, agreements, etc., with a view to reducing at the source the main cause of industrial strife; (2) to supplement the work of the Industrial Relations Machinery in taking preventive action where disputes are brewing and in settling long pending disputes which could not be settled otherwise; (3) to maintain liaison with Central, State or local units, as the case may be, to ensure effective working of the implementation machinery; (4) to arrange meetings of Implementation Committees and to function as their Secretariat; (5) to bring about out of court settlement of cases pending in High Courts and the Supreme Court; (6) to ensure that cases are screened by the Screening Committees set up by the Central Employers ' and Workers ' Organisations before appeals are filed in higher courts; (7) to evaluate; (a) major strikes, lock outs and disputes in order to fix responsibility for them, and (b) the working of important Labour legislations, awards, policies, decisions, etc.
in order to see how far they have produced the results which they were intended to produce and suggest measures to improve them.
(8) to collect and maintain necessary statistics regarding implementation of the Code of Discipline, labour enactments awards etc.
X X X X X X X X X X X It then deals with Implementation Committees and states as follows: 404 "(iii) Implementation Committees: 6.
The Implementation Committees at the Centre and in the States represent both Central Employers ' and Workers ' Organisations.
The Central Implementation and Evaluation Committee consists of an equal number of employers ' and workers ' representatives four each from the Central employers ' Organisations.
They are nominated by the organisations to which they belong and not by Government .
State/Administration Implementation Committees are also required to be constituted in consultation with the Central Employers ' and Workers ' Organisations wherever they have affiliates in the States/Territories concerned.
These Committees are presided over as far as possible by respective Labour Ministers.
At the local level, the Committees comprise an equal number of representatives of employers and workers in the area and are presided over by an officer of the Labour Department of by a prominent person in the region.
The functions assigned to Implementation Committees by the Standing Labour Committee in October, 1957 and other Committees are as follows: (1) to examine the extent of implementation of agreements, awards and settlements and to advise the parties which are anxious to implement an award but are unable to do so, as to how the difficulties in implementation could be overcome.
(2) to fix responsibility for violations of the Code in cases brought to its notice by the Implementation Unit or in those enquired into by it or a sub committee appointed by it.
In doing so, the Committee may hear the parties concerned if considered necessary.
(3) To consider cases for out of court settlement with the consent of the parties, screening of cases of industrial disputes before appeals are filed, etc.
that may be brought to its notice by the Implementation Unit or such other cases that the Committee may desire, to bring about harmonious labour management relations.
405 (4) to review periodically the working of the Code in their respective spheres.
(5) to maintain a two way exchange of experience between the Committees at the lowest level and the Central Committee.
At points of importance arising at any level should be given wide circulation.
" The Code further assigns the Implementation Units among others the duty to provide the secretariat for the Implementation Committees and to ensure that their decisions are implemented promptly.
We have also seen from the enumeration of the functions of the Implementation Units above, that the Units have to arrange meetings of the Implementation Committees and to function as their secretariat.
Section IV of the Code provides for "Grievance Procedure".
It states, among other things, that it is the responsibility of the Central and State/Administration Implementation Units to ensure that a grievance procedure is set up by every management in consultation with their workers.
Section V of the Code deals with Recognition of Unions and states as follows: "11.
Except in those States where the procedure to conferrecognition on unions is governed by a statute the conditions and procedure for recognitions of unions are governed by the provisions of the Code of Discipline.
It is the responsibility of Implementation Units to ensure that recognition is granted to unions by managements wherever they satisfy the prescribed criteria.
The procedure to be followed for this purpose is at Appendix IV.
For the sake of uniformity the State Implementation Units are requested to adopt it." Appendix IV which is referred to above is headed as follows: "PROCEDURE FOR VERIFICATION OF MEMBERSHIP OF UNIONS FOR THE PURPOSE OF RECOGNITION UNDER THE CODE OF DISCIPLINE" It is not necessary to set out the entire procedure stated in the said Appendix.
A reference to only first who clauses and clause (10) of the 406 said procedure would suffice for our purpose.
They state follows: "(1) On receipt of a representation from a union for recognition under the Code of Discipline the Central/State Implementation Machinery will first ascertain: (a) the names of unions functioning in the establishment together with their number and date of registration by reference to the Registrar of Trade Unions concerned; (b) whether any of the unions functioning in the establishment was responsible for an established breach of the Code during the past one year.
(By an `established breach of the Code ' is meant a breach reported to and on enquiry established by the Implementation Machinery of the State or the Centre), (c) whether the existing recognised union, if any, has completed a period of two years of recognition.
(2) After ascertaining the above facts, the Implementation Machinery at the Centre will request the Chief Labour Commissioner to arrange verification of membership of unions entitled to recognition under the Code.
In the States, either the Implementation Officer will carry out this verification or get it done through the State Labour Commissioner, depending on the practice in each State.
X X X X X X X X X X (10) The verification officer will report his findings to the Central/State Implementation machinery which in turn will communicate its decision to the management as well as to the unions.
In his report the verification officer will also indicate the total numbers of workers in the establishment and the percentage of the verified membership to it.
" We may also mention in this context that Annexure I to the Code lays down a criteria for recognition on unions.
It will thus be apparent from the aforesaid provisions of the Code that the "Implementation Machinery" envisaged by the Code consists of two separate Organisations viz., Implementation Units in 407 the respective Labour Departments, and Tripartite Implementation Committees at the Central, State and local levels.
Each of the Organisations has been assigned different functions and they are independent of each other while carrying out the same.
While the Central Implementation and Evaluation Division is set up in the Ministry of Labour and Employment under the charge of a Joint Secretary, the Implementation Units in the States are set up under the charge of a whole time officer of the Labour Department.
It is recommended that the Implementation Officer should be a whole time officer and of sufficient seniority as far as possible.
The Implementation Units have, among other things, been entrusted with the task of ensuring that every management sets up a grievance procedure in consultation with their workers and ensuring that recognition is granted to Unions by management wherever they satisfy the prescribed criteria by following the procedure laid down for the purpose in Apendix IV.
We have already pointed out that the prescribed criteria is laid down in annexure I of the Code.
Further pre conditions for recognition are laid down in clause (1) of Appendix IV.
Thus the constitutions of the Implementation Units and Implementation Committees are different and they function in different areas.
It appears that the High Court has basically been swayed by the fact that in clause (1) of the Appendix IV it is stated that on the receipt of the representation from unions for recognition, the Central/State "Implementation Machinery" will first ascertain the facts stated in sub clauses (a), (b) and (c) thereof and thereafter, if at the Centre the "Implementation Machinery" will require the Chief Labour Commissioner to arrange the verification of membership of unions entitled to recognition and if in the States either the Implementation Officer will carry out the verification or get it done through the State Labour Commissioner depending upon the practice obtaining in each State.
The High Court also seems to have been influenced by the provisions of clause (10) of the said Appendix which requires the Verification Officer to report his findings on membership to the Centre/State "Implementation Machinery".
The High Court has obviously mistaken the whole for the part.
As we have pointed out earlier, although Section II of the Code is headed "Implementation Machinery" the "Implementation Machinery" consists of two separate Organisations, viz., Implementation Units and Tripartite Implementation Committees.
This is obvious from the language of Section II itself.
Their separate constitutions and functions also make this aspect clear.
What is further, to hold that the Implementation Unit in the respective Labour Department together with the respective Tripartite Implemen 408 tation Committee at the Central, State or Local Level would constitute the Implementation Machinery jointly and not each of them separately would run not only counter to the intention of the Code as is manifest from the clear language of Section II and their separate composition and functions, but would also be impracticable in working.
We have reproduced above the composition of the Implementation Committees at the Centre and the State Level.
These Committees consist of, at the central level, an equal number of employers ' and workers ' representation four each from the central Employers ' and Workers ' Organisations as nominated by the Organisations themselves.
At the State level, they are required to be constituted similarly and in consultation with the Central Employers ' and Workers ' Organisations wherever they have affiliates in the State concerned.
The Committees are further presided over as far as possible by respective Labour Ministers and even where it is not possible for Labour Minister to preside over them, they have to associate themselves as much as possible with the deliberation of the Committees.
At the local level, the Committees are similarly constituted of an equal number of representatives of the employers ' and Workers ' in the area and are presided over by an Officer of the Labour Department or by a prominent person in the region.
In a given case there may be more associations than one of employers and employees, and the Committees would thus consist of an unwieldy number.
To except such a Committee to carry out the work mentioned in Appendix IV is unrealistic.
That is why the Code itself has entrusted to the Implementation Units and not to the Implementation Committees the task of ensuring that recognition is granted to unions by management.
At the Centre, the Implementation Unit is kept in charge of a Joint Secretary and at the State level it is in charge of a whole time officer of the State Labour Department.
The record further shows that as early as on May 26, 1959, i.e., after about a year of the ratification of the Code, the Government of India issued a statement naming and designating Officers Incharge of Evaluation and Implementation work in all the States and further stated as follows: ".
.It is requested that all complaints of non implementation of Labour Laws, awards settlements, agreements, Code of Discipline etc., relating to undertakings in the State sphere may kindly be referred, in future, to State Implementation Officers concerned . .
" So far as the State of Orissa is concerned, the Implementation 409 Officer named by the Government of India is the Labour Commissioner of the State.
Since the Implementation Unit/Implementation Officer entrusted with the task of granting recognition to the Unions in the State of Orissa was the Labour Commissioner of the State, the appellant Sangh had rightly approached the Labour Commissioner for the purpose.
The High Court having committed the basic error of confusing the Implementation unit and Tripartite Implementation Committee together with the Implementation Machinery was misled into holding that the Implementation Unit/Implementation Officer was not the proper authority to initiate the procedure for recognition.
The High Court was further wrong in holding that clause (10) of Appendix IV which mentions that the Verification Office will report his findings to the Implementation Machinery conveyed the meaning that the Implementation Unit or the Labour Commissioner was not the "Implementation Machinery" but only a Verification Officer.
Since the State Labour Commissioner was named as the Implementation Officer who is none but the officer in charge of the Implementation Unit, the State Labour Commissioner as the Implementation Officer had an option either to carry out the verification of membership himself or entrust it to some other Officer like the Deputy Labour Commissioner as in the present case.
That was only an entrustment of a ministerial work.
The Deputy Labour Commissioner in the present case is the Verification Officer and under clause (10) of Appendix IV, he has to send his report to the Implementation Officer or Unit, i.e., the State Labour Commissioner, and the State Labour Commissioner will in turn communicate his decision as the State Implementation Machinery to the management as well as the Unions.
For the aforesaid reasons we are of the view that the High Court has erred in allowing Writ Petition No. 4426 of 1989 filed by the Ist respondent and dismissing the appllant 's Writ Petition being No. 361 of 1990.
We, therefore, set aside the decision of the High Court and direct the Deputy Labour Commissioner to complete the process of verification of membership and the Labour Commissioner to complete the proceedings of recognition as expeditiously as possible and preferably within four months from the receipt of this decision.
In the circumstances of the case, the parties will bear their own costs.
R.S.S. Appeal allowed.
| The appellant, Rourkela Sramik Sangh, is a trade union in the Rourkela Steel Plant.
It addressed a letter to the Implementation and Evaluation Officer cum Labour Commissioner, under the Code of Discipline 1958, whereby it sought recognition as the sole bargaining agent in the Rourkela Steel Plant.
For this purpose, it requrested the Labour Commissioner to pass orders for immediate verification of the membership of all the trade unions operating in the Plant and to recommend for recognition of the union having majority of the membership.
The Labour Commissioner as the Implementation and Evaluation Officer authorised the Deputy Labour Commissioner to carry out the process of verification of the membership of the registered trade unions, who in turn passed orders calling upon the different trade unions to produce the necessary records.
The Ist respondent Rourkela Mazdoor Sabha which is a rival union, challenged by way of a writ petition the orders passed by the Labour Commissioner and the Deputy Labour Commissioner.
At the same time, the appellant union filed a writ petition seeking a direction to the Labour Commissioner, and the Deputy Labour Commissioner, to complete the process of verification and recognition within a stipulated time.
The High Court by its common judgment allowed the Ist respondent 's petition and dismissed the appellant 's petition.
The High Court held that since the appellant Union had addressed its application for recognition not to the Implementation Machinery but to the Implementation Officer, the same was not properly made as the Implementation Officer had no authority to initiate the process of recognition.
The decision of the High Court was based on the finding that the Implementation and Evaluation Officer was not the "Implementation Machinery" within the meaning of the Code of Discipline.
400 Allowing the appeal and directing the Deputy Labour Commissioner and the Labour Commissioner to complete the proceedings of recognition as expeditiously as possible, this Court, HELD: (1) The "Implementation Machinery" envisaged in section 11 of the Code of Discipline consists of two separate Organisations, viz., Implementation Units in the respective Labour Departments, and Tripartite Implementation Committees at the Central, State and local levels.
Each of the Organisations has been assigned different functions and they are independent of each other while carrying out the same.
Thus, the constitutions of the Implementation units and Implementation Committee, are different and they function in different areas.
[406H 407D] (2) Since the Implementation Unit/Implementation Officer entrusted with the task of granting recognition to the union in the State of Orissa was the Labour Commissioner of the State, the appellant Sangh had rightly approached the Labour Commissioner for the purpose.
[409A] (3) Since the State Labour Commissioner was named as the Implementation Officer who is none but the officer in charge of the Implementation Unit, the State Labour Commissioner as the Implementation Officer has an option either to carry out the verification of membership himself or to entrust it to some other officer like the Deputy Labour Commissioner as in the present case.
That was only an entrustment of a ministerial work.
[409D] (4) The Deputy Labour Commissioner in the present case is the Verification Officer and under clause (10) of Appendix IV, he has to send his report to the Implementation Officer or Unit, i.e., the State Labour Commissioner, and the State Labour Commissioner will in turn communicate his decision as the State Implementation Machinery to the management as well as the Unions.
[409E] (5) The High Court was wrong in holding that the Implementation Unit or the Labour Commissioner was not the "Implementation Machinery" but only a Verification Officer.
[409C]
|
Civil Appeal No. 3527 of 1979.
Appeal by Special leave from the Judgment and order dated the 15th JaNuary, 1979 of the Karnataka High Court in Executive Second Appeal No. 89 of 1974.
Dr. Y.S. Chifale, R. B. Datar and Miss Madhu Mool Chandani for the Appellants.
section C. Javali, Ranjit KtJmar and B. P. Singh for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent Dakshyani sued to recover a sum of RS.
7,324.86 paise from Narayana Swami, husband of the first appellant and father of the rest of the appellants.
The suit was decreed with costs and, in execution of the decree, certain property situated in Bangalore City was brought to sale.
The decree holder purchased the property at the execution sale held on August 19, 1969, for a sum of Rs. 28,000.
Narayana Swami having died in the meanwhile, his legal representatives, the present appellants, filed an application under the provisions of order 21 Rule 90 for setting aside the sale on various grounds.
The Executing Court dismissed the application on March 28, 1973 but on an appeal preferred by the appellants the sale was set aside on July 31, 1974.
The respondent filed a second appeal to the High Court of Karnataka.
At the hearing of the second appeal the parties entered into a compromise with the leave of the Court, such leave being necessary since mally of the present appellants were minors then 469 and are minors even now.
The Court granted leave and made an order in terms of the compromise.
The term of the compromise which we are concerned is that the present appellants agreed to deposit and the present respondent agreed to receive a sum of Rs. 60,000/ in full and final settlement of the decree.
If the deposit was made on or before November 30, 1976, the sale which though confirmed by the Trial Court but set aside by the Appellate Court was to stand set aside and the second appeal of the respondent was to stand dismissed.
If the amount of Rs. 60,000/ was not deposited on or before November 30, 1976 the second appeal was to stand allowed and the sale was to stand confirmed.
Time was stated to be the essence of the contract between the parties.
The applellants were permitted under the compromise, to raise funds by sale, mortgage etc.
Of the property in question.
The appellants failed to deposit the amount in terms of the compromise.
It appeaIs that they were unable to raise the necessary funds as they could not evict the tenant who was in occupation of the property.
Finally the appellants filed an application purporting to be under sections 148 and 151 of the Civil Procedure Code to extend the time for depositing the sum of Rs. 60,000 in terms of the compromise dated June 24, 1976.
The High Court dismissed the application on the ground that the Court could not extend time where time had been stipulated by the parties themselves in the compromise arrived at between them.
The High Court purported to rely upon the decision of this Court in Hukumchand vs Bansilal and Ors.(l) Shri R. B. Datar Learned Counsel for the appellants urged that there was no limitation on the power of the Court to extend time under section 148, c. P. c. and that where a compromise had been made an order of the Court, it was certainly open to the Court to extend time under section 148 c. P. c.
He relied upon the decision of the High Courts of Bombay and Calcutta in Marketing and Advertising Associates Pvt. Ltd. vs Telerad Pvt.
Ltd.(2) Jadabendra Nath Mishra vs Manorama Debya(3).
He distinguished the decision of this Court in Hukum Chand vs Bansilal.
Shri Javali Learned Counsel for the respondent, on the other hand urged that time should not be extended by the Court, 470 in law and on principle, where the parties themselves had agreed upon the time within which the amount was to be deposited.
In Hukamchand vs Bansilal the real question which was considered was, if a mortgaged property was sold in execution of a mortgage decree and if the application to set aside the sale under order 21 Rule 90 was dismissed but time was granted by consent of parties for depositing the decretal amount etc.
could time be extended for depositing the decretal amount etc.
to avert the confirmation of sale under order 34 Rule S, except with the consent of the parties.
The answer was 'no '.
Court said on the dismissal of an application under order 21 Rule 90, confir mation of sale under order 21 Rule 92 had to follow as a matter of course.
Order 34 Rule S merely permitted the deposit to be made at any time before confirmation of the sale and there could be no question of extending the time for such deposit.
If parties agreed to have the con firmation of sale postponed, further postponement would be possible by agreement of parties only.
The Court would have no say in the matter.
148 C. P. C. would have no application.
The position was clarified by the Court thus : "The judgment debtor mortgagor had the right to de posit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under order XXXIV, Rule (S) (l) so long as the sale was not confirmed.
If the amount had been deposited before the confirmation of sale, the judgment debtors had the right to ask for an order in terms of order XXXlV, Rule 5 (1) in their favour.
In this case an application under order XXI Rule 90 had been made and, therefore, the sale could not be confirmed immediately after 30 days which would be the normal course; the confirmation had to await the disposal of the application under order XXl, Rule 90.
That application was disposed of on October 7, 1958 and was dismissed.
It is obvious from the order sheet of October 7, 1958 that an oral compromise was arrived at between the parties in court on that day.
By that compromise time was granted to the respondents to deposit the entire amount due to the decree holder and the auction purchaser by November 471 21, 1958.
Obviously, the basis of the compromise was A that respondents withdrew their application, under order XXI, Rule 90 while the decree holder society and the auction purchaser appellant agreed that time might be given to deposit the amount upto November, 21,1958.
If this agreement had not been arrived at and if the application under order XXI, Rule 90 had been dismis sed (for example, on merits) on October 7, 1958, the court was bound under order XXI, Rule 92 (1) to confirm the sale at once.
But because of the compromise between the parties by which the respondents were given time upto November 21, 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties.
But the fact remains that the application under order XXI, Rule 90 had been dismissed on October 7, 1958 and thereafter, the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21, 1958".
The Court then referred to the refusal of the Court to extend time by a fortnight on November 22, 1958 and further observed : "The executing court refused that holding that time upto Nov. 21, 1958 had been granted by consent and it was no longer open to it to extend that time.
The executing court has not referred to order XXI, Rule 92 in its order, but it is obvious that the executing court held that it could not grant time in the absence of an agreement between the parties because order XX[, Rule 92 required that as the application under order XXI, Rule 90 had been dismissed the sale must be confirmed.
We are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties, for time between October 7, 1958 to November 21, 1958 was granted by consent of parties.
Section 148 of the Code of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time.
Thereafter, it rightly confirmed the sale as required under order XXI, Rule 92 there being no question of the appli 472 cation of order XXXIV, Rule S for the money had not been deposited on November 22, 1958 before the order J of confirmation was passed.
Tn this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct".
In the case before us, the situation Is totally different.
Unlike the case of Hukam Chand vs Bansilal where there was a statuory compulsion to confirm the sale on the dismissal OF the application under order XXI Rule 90 and, therefore, postponement and further postponement of the confirmation of the sale could only be by the consent of the parties in the case before us, there was no statutory compulsion to dismiss the application under order XXI, Rule 90 in the absence of an agreement between the parties.
The court would have then decided the appeal arising out of the application on the merits.
The parties, however, entered into a compromise and invited the court to make an order in terms of the compromise, which the court did.
The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases.
Of course, time would not be extended ordinarily, nor for the mere asking.
It would be granted in rare cases to prevent manifest injustice.
True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause; And, where the contract of the parties has merged in the order of the court, the court 's freedom to act to further the ends of justice would surely not stand curtailed.
Nothing said in Hukamchand 's case militates against this view.
We are, therefore, of the view that the High Court was in error in; thinking that they had no power to extend time.
Even so, Shri Jawali submitted that this was not an appopriate case for granting any extension of time.
We desire to express no opinion on that question.
The High Court will decide that question.
We accordingly, set aside that judgment dated 15th January, 1979, of the High Court and direct the High Court to dispose of I. A. No. VIII in Execution Second Appeal No. 89/74 in accordance with law.
The parties will bear their own costs.
P.B.R. Appeal allowed.
| The respondent 's suit for the recovery of money from the first appellant 's husband was decreed and in the execution of the decree certain property of the appellant was brought to sale.
The decree holder purchased that property.
The appellant 's husband having died in the meanwhile his legal representatives filed an application under order XXI, Rule 90 of the C.P.C. for setting aside the sale.
That application was dismissed by the executing court.
On the appellant 's appeal, the sale was set aside.
At the stage of second appeal filed by the respondent the parties entered into a compromise with the leave of the court which after granting leave made an order in terms of the compromise.
Under a term of the compromise, the appellants agreed to deposit, and the respondent agreed to receive a sum of Rs. 60,000/ in full and final settlement of the decree.
It was also stated that if the deposit was not made on or before the stipulated date, the sale was to stand confirmed and the second appeal of the respondent was to stand.
Having found it difficult to deposit the money in terms of the compromise, the appellants filed an application under Ss. 148 and 151 of the C.P.C. praying that the time for depositing the money in terms of the compromise be extended.
The High Court dismissed this application on the ground that the Court could not extend time where time had been stipulated by the parties in the compromise arrived at between them.
In appeal to this Court it was contended on behalf of the appellants that where a compromise had been made the order of the Court, it was open to the Court to extend the time under section 148 C.P.C.
Allowing the appeal and remanding the case to the High Court to dispose of the execution second appeal afresh in accordance with the law. ^ HELD: As there was no statutory compulsion to dismiss the application under order XXI, Rule 90, C.P.C, in the absence of an agreement between the parties, the Court would have decided the appeal arising out of tho application 468 on the merits.
The parties in the instant case however entered into a compromise and invited the court to make an order in terms of the compromise, which the Court did.
The time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court the jurisdiction to extend time in appropriate cases.
Time would not be extended ordinarily, nor for the mere asking but would be granted in rare cases to prevent manifest injustice.
Where the contract of the parties has merged in the order of the Court the Court 's freedom to act to further the ends of justice would not stand curtailed.
The High Court was in error in thinking that they had no power to extend time.
[472 B F] Hukumchand vs Bansilal and ors.
; , , held inapplicable.
|
Appeal No. 909 of 1971.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated May 21, 1971 of the Patna High Court in Election Petition No. 2 of 1970.
363 Frank Anthony, A. T. M. Sampath and E. C. A Agrawala, for.
the appellant.
L. M. Singhvi, Basudeva Prasad, Ravinder Narain and P. C. Bhartari, for the respondent.
The judgment of the Court was delivered by Grover, J.
This is an appeal from a judgment of the Patna High Court holding that the nomination papers of the respondent Smt.
Jahan Ara Jaipal Singh had been illegally rejected by the Returning Officer.
For that reason the election of the returned candidate Shri N. E. Horo from the 51 Khunti Parliamentary (Scheduled Tribe) Constituency in the State of Bihar was set aside.
On May 1, 1970 the Election Commission of India issued a notification calling upon the above named Parliamentary Constituency to elect a Member to the Lok Sabha in the vacancy caused by the death of late Shri Jaipal Singh.
The last date for filing the nomination papers was May 8, 1970.
The date for scrutiny was May 9, 1970.
Several persons filed nomination papers including Theodore Bodra and others.
Two nomination, papers were filed on behalf of the respondent who was a Congress (Ruling) candidate for the aforesaid by election.
According to the respondent she was the widow of late Shri Jaipal Singh and was a member of the Munda Scheduled Tribe in the State of, Bihar.
She filed certain certificates to that effect.
Bodra filed an objection petition to the nomination papers of the respondent.
The Returning Officer, after hearing arguments, passed an order rejecting the nomination papers of the respondent.
The nomination papers of all the other candidates were accepted.
After the polling took place, the result of the election was announced on June 3, 1970 and the appellant Shri Horo was declared elected to the Lok Sabha.
On July 8, 1970 the respondent filed an, election petition.
In the election petition it was stated inter alia that the petitioner (who is now respondent before us) was the widow of Late Shri Jaipal Singh and belonged to the Munda Scheduled Tribe although she was a Christian by religion.
It was averred in paragraph 3 of the petition that according to the Munda Customary Law when a Munda male married outside the Munda Tribe if his marriage is accepted by the Tribe he continues to be a member of that Tribe and his wife also acquires its membership.
It was pleaded that the wife being a member of her husband 's family had the right of succession to her husband 's property as well.
In para 4 of the petition it was stated that the petitioner was a Tamil by birth.
She married late Shri Jaipal Singh in the year 1954 364 according to the rights and rituals of Mundas in the presence of Parha Raja, Parha Munda, Parha Pahan, relatives of the deceased and the members of the Tribe at Morabadi a Mohalla of Ranchi.
In paragraph 5 the ceremonies which were performed according 'to Munda custom were mentioned.
These ceremonies inter alia were the washing of the wife 's feet by the elder sister of the husband and the holding of the feast of the male goat meat and drinks of Handia etc.
A new name was given by her mother in law to the petitioner, that name being Lankashri.
All these functions were witnessed by Parha Raja, Parha Munda, Parha Pahan and other members of the Tribe.
In paragraph 6 more details were given of the various other ceremonies also which were performed in connection with the marriage.
After referring to the relevant provisions of the Representation of People Act 1951, hereinafter called the 'Act ', it was stated that the Returning Officer had illegally allowed irrelevant personal aspersions to be .cast against the petitioner by her opponents.
It was alleged that the Returning Officer had been influenced by Bodra who was the Chairman of the Bihar Legislative Council.
The decision of the Returning Officer that the status of a Munda could be acquired only by birth and not by marriage and that the petitioner did not belong to the Munda Scheduled Tribe was challenged principally on the ground that the Returning Officer had not considered the custom by which if a Munda male marries a women not belonging to Munda Tribe and that is accepted by the Tribe the wife acquires the membership thereof.
In his written statement the returned candidate Shri Horo maintained that even though the election petitioner might be iving as wife of late Shri Jaipal Singh she was never married in accordance with the custom of the Munda Tribe prevalent in Chhota Nagpur.
It was denied that she was ever accepted as a member of the Munda community as no such custom is prevalent in that community.
It was denied that the ceremonies and rituals mentioned in the election petition had been performed in respect of the marriage of the election petitioner with the late Shri Jaipal Singh.
In paragraph 25 of the written statement it was asserted that a non Munda merely by virtue of the marriage with a Munda could not ipso facto become a Munda.
If a person was not born of a father belonging to a Scheduled Tribe he or she could not legally claim to be a member of the said Tribe.
It was asserted that since the election petitioner was not the daughter of a member of the Munda Tribe she could not claim to be a member of that Scheduled Tribe.
The allegations of mala fides made against the Returning Officer were described as baseless and extraneous.
During the pendency of the election petition the Lok Sabha was dissolved on December 27, 1970.
A petition was filed 365 before the High Court on behalf of Shri Horo that the election petition should be dismissed as having become infructuous.
The court made an order on January 14, 1971 holding that the election petition could not be dismissed on that ground.
On the pleadings of the parties seven issues were framed.
Issues 1, 2 and 3 which are material need be mentioned.
(1) Is the election petition maintainable ? (2) Whether the petitioner was the legally married wife of late Shri Jaipal Singh according to the custom of Munda Tribe prevalent in Chhota Nagpur ? (3) Whether the petitioner could legally acquire the status of a Munda by virtue of her marriage to late Shri Jaipal Singh and whether she had been accepted as a member of the Munda Tribe by the said Tribe ? It may be mentioned that so far as issue No. 1 was concerned the objection taken was that the election petition was defective on account of the non joinder of necessary parties.
When the election petition was filed only Shri Horo the returned candidate was impleaded but subsequently a petition was filed on behalf of the election petitioner making a prayer that the other contesting candidates were also necessary parties and should be impleaded.
The court directed that they be added as parties.
Shri Bodra who was one of the contesting parties was consequently impleaded as a party.
Later on it was prayed on behalf of the petitioner that on a further consideration it was found that the persons who had been subsequently added were not necessary parties and their names might be deleted.
Bodra 's name was therefore deleted.
The argument raised before the High Court was that Bodra being a necessary party to the petition under cl.
(b) of section 82 of the Act the petition became defective as soon as his name was struck off at the instance of the election petitioner.
The High Court was of the view that although in paragraph 21 of the election petition an allegation had been made that Bodra had influenced the Returning Officer, no evidence was led on that point and the case of the election petitioner was based solely on the ground that the nomination paper had been illegally and improperly rejected.
No relief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra.
The High Court was also of the view that the allegation made in the election petition that Bodra had exercised his influence in getting the nomination paper of the election petitioner rejected did not fall within the ambit and scope of sub section
(7) of section 123 of the Act.
The contention that the petition was not maintainable was consequently rejected.
On the main issues, namely (2) and (3) it was expressly stated in the judgment that the factum of the marriage of the elec 366 tion petitioner with the late Shri Jaipal Singh had not been disputed.
The real controversy between the parties in the High Court centered round the point whether the marriage was in such form that the wife acquired the membership of the Tribe.
According to the arguments on behalf of Shri Horo as the election petitioner was not a Munda she could not belong to the Munda Tribe and that by marriage such a status could never be acquired.
The High Court examined the evidence relating to the question whether the marriage of the election petitioner with late Shri jaipal Singh had been performed in accordance with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe.
The court also considered the various authoritative books and other works relating to the Mundas and came to the conclusion that on a survey of the entire, evidence and the circumstances there was no reason to discredit the evidence which had been led on behalf of the petitioner that she was married according to the Munda custom and that it was with the approval and sanction of the Tribe that she had been accepted as a member of the Munda tribe.
The first contention raised by Mr. Frank Anthony on behalf of the appellant relates to issue No. 1.
It has been maintained by him that Bodra was a necessary party.
Apart from the fact that he was the only person who had filed a written objection to the nomination of the respondent the election petition filed by the respondent contained serious allegations of corrupt practice against Bodra.
As he had been given up as a party although impleaded at one stage the petition became defective and was not maintainable.
According to clause (b) of section 82 of the Act the petitioner must join as a respondent any candidate against whom allegations of any corrupt practices are made in the petition.
Section 86(1) provides that the High Court shall dismiss any election petition which does not comply inter alia with the provisions of section 81.
There can be little doubt that if the allegations made in the election petition against Bodra amounted to the commission of a corrupt practice by him it was obligatory on the part of the election petitioner to join him as a respondent to the petition.
It is equally clear that in that event the petition would have become liable to dismissal.
For finding out what a corrupt practice is we have to turn to section 123 of the Act.
According to Mr. Anthony the allegations made against Bodra fell within sub section
(7) of section 123 which is in the following terms : section 123 "The following shall be deemed to be corrupt, practices for the purposes of this Act: 367 .lm15 (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate 's election, from any person in the service of the Government and belonging to any of the following classes, namely : (a) gazetted officers; (b) stipendary judges and magistrates; (c) members of the armed forces of the Union: (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmykhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and (g) such other class of persons in the service of the Government as may be prescribed.
Explanation(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of clause (7) a person shall be deemed to assist in the furtherance of the prospects of a candidates 's election if he acts as an election agent of that candidate".
The allegations against Bodra are contained in para 21 of the election petition which may be set out : "That the Returning Officer, while hearing the objections illegally allowed irrelevant personal aspersions to be cast against the petitioner by her opponents and the aforesaid Shree Theodore Bodra even after protests made by and on behalf of the petitioner, Shrimati Jahanara Jaipal Singh, against the same '.
plain reading of the above paragraph shows that no such alletion was made that Bodra had influenced the Returning Officer I L887 Sup CI/72 368 for the purpose mentioned in section 123(7) of the Act.
The essential ingredient of that provision is to obtain, procure etc.
by a candidate of any assistance (other than the giving of a vote) for the furtherance of the prospects of that candidate 's election from any person in service of the Government and belonging to the classes mentioned in the sub section.
There is absolutely no allegation or suggestion in para 21 that the Returning Officer was influenced by Bodra for the purpose of rendering assistance for the furtherance of the prospects of the election of any candidate.
All that has been stated in that paragraph is that while hearing the objection the Returning Officer allowed irrelevant personal aspersions to be cast against the election petitioner by her opponents and Bodra.
It was further stated that on inquiry the election petitioner came to learn that the Returning Officer had been influenced by Bodra.
This influence apparently can have reference only to the conduct or act of the Returning Officer in allowing personal aspersions to be cast against the election petitioner.
Even by stretching the language it is not possible to discover any of the ingredients which would constitute a corrupt practice under section 123(7) of the Act.
Faced with this situation Mr. Anthony sought to rely on sub section (2) of section 123 the relevant part of which is as follows : "(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right: Provided that ". . " It is not possible to comprehend how the allegation contained in para 21 can be understood to amount to a suggestion of direct or indirect interference, or attempt to interfere on the part of the candidate etc.
with the free exercise of any electoral right.
We are accordingly satisfied that no allegation of any corrupt practice had been made in the election petition against Bodra and therefore he was not a necessary party within section 82 of the Act.
In this view of the matter it is not necessary to examine the criticism of Mr. Anthony of that part of the judgment of the High Court according to which one of the reasons given for deciding issue No. 1 in favour of the present respondent was that no relief had been sought on the ground that undue influence had 'been exercised on the Returning Officer by Bodra and that no evidence was led on that point.
On issues 2 and 3 Mr. Anthony has raised three main points The first was that the respondent who was a Christian by birth, was a divorcee and according to her own statement the decree 369 nisi in the divorcee proceedings had been made absolute on May 6, 1954.
According to her she got married to late Shri Jaipal Singh on May 7, 1954.
This marriage was a nullity as under section 57 of the she could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute.
Secondly the High Court had palpably erred in holding that the respondent had become a member of the Munda tribe by marrying Shri Jaipal Singh and set aside the order of the Returning Officer who had held that she was a Christian by birth and Munda tribe being an ethnic group its membership could not be acquired by marriage but could be acquired only by birth.
Thirdly it has been strongly urged that the respondent failed to prove the custom that a non Munda could be initiated into tribe as its full fledged member either by performance of certain rituals and ceremonies or by the acceptance as such by the tribe or its panchayat.
As regards the first point it was never canvassed or argued before the High Court.
No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in section 57 of the until after the lapse of.
a period of six months from the date the decree of divorce was made absolute.
None of the issues which was framed by the High Court involve the question now sought to be agitated based on the provisions of section 57 of the .
It appears that advantage is sought to be taken from the statement of the respondent about the various dates when the decree absolute was granted and the date when the marriage took place between the respondent and the late Shri Jaipal Singh.
In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law.
It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian.
Nor was the matter pursued in cross examination of the respondent and she was not asked as to how she could get over the bar of section 57 in theway of remarriage before the expiry of the prescribed period.
In these circumstances we do not consider that such a pointcan be allowed to be agitated for the first time before this Court.
On the second and the third points, a great deal of reliance has been placed on the following statement in the well known book of section C. Roy "Mundas and their country", 1912 Edn.
"The Munda tribe is divided into a large number of exogamous groups called kilis.
According to 370 Munda tradition, all the members of the same Kili are descended from one common ancestor.
But such a tradition may not be quite correct with regard to the original kilis.
Though exogamous as regards the kilis, the Mundas are endogamous so far as other tribes are concerned.
Thus, there can now be no valid marriage, according to Munda custom, between a Munda and the member of any other 'kolarian ' tribe, such as the Santals, the Kharias the Asurs, or the Bir hors".
According to Roy the family came to be evolved from tribes and sub tribes.
Communal marriage was superseded by the individual marriage and Matriarchal Age was superseded by Patriarchal.
Kinship came to be traced not as before, through a common female ancestor but through a male ancestor.
D. N. Mazumdar in his work on the Ho tribe entitled "Affairs of a Tribe", 1950 Edn.
points out that the rule of endogamy has its base in superstitious belief.
According to him villages which are closely allied by ties of marriage are those which share the same God and Spirits and the same Deonwa.
The influence of Deonwas, in other words, the knowledge of the Bongas of an area, determines the limit of exogamy, for there is a risk in marrying in villages the Bongas of which are unknown; (pp. 237 238).
From the account given by section C. Roy himself it appears that according to the Munda custom the rule of endogamy is not absolute; for instance, in the case of Munda female married or unmarried found to have gone astray with a man of a different caste or tribe, it is said, that the latter is summoned before a Panchayat and a heavy fine is imposed on the lover and the fine, if realised, is paid as compensation to the parents of the seduced maiden or the husband of the married female and the seducer is compelled to take the girl or woman as a wife or a mistress and in case of refusal (which is rare) to submit to the orders of the Panchayat.
The family of the seduced female remains outcaste until a purificatory ceremony is performed and thus restored to caste.
The members of the family then cook rice.
and pulse and themselves distribute the food to the assembled relatives; (see pp.
544 545.) The question that has to be enquired into is whether the strict rule of endogamy of the Munda tribe has been deviated from and whether custom has sanctioned such deviation.
D. W. Mazumdar in his work "Races and Cultures of India" deals with tribal organisations in Chapter 17.
According to him the definition that is found in the current literature on the subject is given in the Imperial Gazetteer which is, "A tribe is a collection of families bearing a common name, speaking a common dialect occupying or professing to occupy a common territory and is 371 not usually endogamous though originally it might have been so".
Endogamy is an essential feature of the tribe though intertribal marriages are breaking the limits of endogamy.
It is further stated by him that "the importance of the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions.
Tribal custom and practices which established social life lose their value and the choice of 'leader and of mate is guided by different considerations".
The Munda tribe cannot be said to be immune from the above process of change in their social Organisation.
Changes in their belief, customs, traditions and practices have taken place under the in fluence of Hinduism, Christianity, and on account of the impact of western education, urbanisation, industrialisation and improved means of communication.
The sense of individualism and lack of love for, the traditional code of conduct and social taboos ,ire stated to be apparent among the emerging urban industrial oriented adivasi communities.
D. N. Mazumdar has made an intensive study of the rule of endogamy among the Ho tribe which is an off shoot of the Munda tribe.
A reference to, the Ho practice may, therefore, help us in understanding the practice among the Mundas.
According to D. N. Mazumdar "A Ho does not marry outside the tribe as a rule but there is today no legal or social prohibition against his doing so.
Though tribal code has relaxed considerably those who work in the mining and industrial centers in and outside Kolhan contract such alliances and when they come back to their villages they are not outcasted by the society;" (pp. 124125, "Races and Cultures of India").
At another place he records : "The endogamy of the tribe is not sacred today, with the result that many marriages have taken place between the Hos and other tribes.
Liaison between Diku men and Ho girls is increasing, and cases that have occurred in Chaibassa during the last ten years or so would fill a volume.
Thus, there being no longer ,my deterrent to mating with strangers, social authority vested in the Killi punch has to exercise its prerogative to ensure a compliance with social traditions.
Killi exogamy has not led to an indiscriminate alliance between the different killis and as far as our knowledge goes, taboo on marriage outside a particular local area can be traced to a dread of unfamiliar Bongas, who were conceived as hostile,.
and therefore dangerous".
(p. 236).
372 L. P. Vidyarthi in his work mentioned before based on his study of the social life of the Oraon and Munda tribes living in the city of Ranchi points out that a good number of cases of marriage between tribals and non tribals have occurred and that in his investigation he came across 53 cases of non tribal males marrying tribal girls.
He points out that greater percentage of love marriages and marriages by 'Kept ' have been socially disapproved while 83.3% and 100 % of arranged and legal (civil) marriages have been approved.
(See pages 102 103).
We may how deal with the evidence produced by the parties on the above points.
P.W. I who was working as District Wel fare Officer in May 1970 at Ranchi and who belongs to the Munda tribe stated that if a Munda male married a non Munda girl and such marriage was accepted by the society it would be a valid and proper marriage.
The wife would, therefore, be accepted as a member of the tribe.
He had himself married an Oraon girl and his wife though a non Munda has been accepted as a member of the Munda tribe.
He further deposed that if the Munda married a non Munda a feast is given and if the elders of the society accept the marriage and participate in the feast that by itself would show that the tribal society has accepted the marriage and the wife has become a member of the tribe.
P.W. 2 who is a nephew of the late Shri Jaipal Singh gave details of the ceremonies which were performed when the marriage between his uncle and the respondent took place.
After the performance of those ceremonies the members of the tribe and the family declared that the respondent had been accepted as a member of the tribe.
He himself is married to a non Munda girl though he was married according to Munda marriage rights as well as according to Hindu law.
P.W. 3 who was at the material time working as Assistant Director in Sociology, Bihar Tribal Welfare Institute, stated that he had been doing research on the subject of Bihar Tribal Marriage and Family Transformation with special reference to Family law.
One of his major duties was to ascertain from the members of different tribes facts relating to the subject of his research.
According to his evidence a Munda male can marry a non Munda girl.
After adopting a special procedure in some cases a non Munda wife is accepted as a member of the tribe.
A certain procedure or formality has to be gone through.
The council of elders of the tribal people has to be consulted and the special reason for the marriage is to be stated.
Then various rituals are gone through and the marriage is allowed by the elders.
He gave instances where, a Munda male had married a non Munda girl and their marriage had been accepted by the tribal people.
One of these instances given by him related to persons belonging to the Santhals and Ho tribes.
He maintained that the customs prevalent among these tribes were broad 373 ly the same as among the Mundas.
In cross examination he stated that he had met the members of the Munda elder council and he had remained in touch with that council since 1952.
He had made special research of Jojo Hatu which was a Munda village.
He claimed to have submitted a report to the government in which he had collected hundreds of cases where a girl of a particular tribe had married outside her tribe.
P.W. 4 was the Superintendent of the Anthropological Survey of India, Ministry of Education.
As an Anthropologist he had to undertake full study in different parts of India mostly among the tribal community.
He had studied Munda tribal custom which assignment had been given to him in 1965 66.
In course of the research he found that a Munda could marry a non Munda girl even before 1954.
He gave three kinds of unusual marriages one of which was where a Munda male married a non Munda female.
The social consequences of that marriage was called Jati Bora.
That meant that the Munda male had committed an offence against the whole community.
Normally he would be ostracised along with his family but there was a process by which he and his wife could be admitted into the community.
This process was known 'Niyar ' which means "to bring in or take in".
The offending party invites the members of the Parha gives them a feast at which a white goat is sacrificed and the blood is smeared on the body of the boy and the girl along with Tarmolik and then they are allowed to sit along with the members of the community in the same Pankti.
After that they are formally considered as members of the community.
He was specifically asked a question with regard to the manner in which a Munda boy marrying a non Munda girl would be accepted by the community and his reply was that in his opinion the Parha was the ultimate authority in the matter of acceptance of a non Munda girl in the community.
If a Parha accepted her that was final.
in cross examination he stated that if a marriage of the nature under discussion is not approved by Parha he did not think it would be accepted by the members of the society.
It may be mentioned that the evidence of this witness has been subjected to a good deal criticism by Mr. Anthony for the reason that he was only expressing an opinion on the last matter and was not making a def inite statement of fact.
P.W. 5, who was attached to the office of the Deputy Commissioner, Palamau, gave an ac count of the ceremonies which were performed of the marriage between the respondent and late Shri Jaipal Singh.
According to him the elders of the community unanimously decided that since permission had been given by the elders they would be taken as members of the tribe.
He denied the suggestion that it was on account of the influence of late Shri Jaipal Singh that Pahans had given sanction to the marriage.
According to him there had been other cases also where such sanction had been given.
374 P.W. 8 who claimed to be a Parha Raja of three Parhas, viz., Takara Parha, Sada Parha and Sagha Parha comprising 36 vil lages also gave evidence about the ceremonies which were performed at the marriage of late Shri Jaipal Singh with the respondent.
After the performance of the ceremonies the Samaj of the Munda tribe accepted the marriage, according to him.
He deposed to other instances where Munda had married non Mundals.
He had attended a marriage of a Munda who had married a Ho girl.
Sanction was given by the elders to that marriage.
It is unnecessary to refer to the evidence of P.W. 10 who is also a Pahan and who claimed to have been present at the time of the marriage in question.
He made a statement which has been subjected to justifiable criticism by Mr. Anthony about the document Exht 3.
His evidence, therefore, does not deserve consideration.
Out of the witnesses examined on behalf of the respondent mention may be made of the statement of Shri Horo himself who appeared as R.W. 6.
After stating that the late Shri Jaipal Singh who was a leader of the Jharkhand Party and was an Adivasi and a Munda professing the Christian religion, he affirmed that the respondent did not have the right and status of a Munda on the basis of established custom.
He admitted that there was a custom that a Munda who had been excommunicated from the tribe could be taken back but according to him that person must be a Munda and no non Munda could be accepted as a member of the tribe.
The Munda could of course marry a non Munda but in the manner in which the Munda usually married a Munda.
The custom among the Mundas is changing and it is dynamic and not static.
The other witnesses produced by Shri Horo are not impressive and do not afford much assistance in deciding the points under discussion.
According to the observations of the High Court Shri Horo did not examine any witness on his behalf who could say that he had made a special study and research of the marriage custom of the Munda tribe and that such a marriage was not acceptable in the present times in spite of all the changes which have taken place in the life and social structure of the community owing to the impact of the various factors which have been mentioned in the authoritative studies of eminent Anthropologists mentioned before.
Our attention ha,, been drawn by Mr. Anthony to certain decisions for the proposition that in a tribe which is endoganotus birth alone can confer the status of membership of the tribal community.
In V. V. Giri vs D. Suri Dora & Others(1) one of the, questions raised, was whether respondent No. 1 in that case had ceased to be a member of the Schedule Tribe at the material time because be had become a Kshtriya.
This court observed that it (1) 375 was essential to bear in mind the broad and recognised features of the hierarchical social stricture prevalent amongst the Hindus.
It was considered enough to state that whatever might have been the origin of the Hindu castes and tribes in ancient times, gradually status came to be based on birth alone.
It was pointed out that a person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status.
We are unable to see how this case can be of any assistance in deciding the matter before us, namely, whether a non Munda can by marriage be recognised as a member of the Munda tribe in certain circumstances.
The High Court, after discussing the evidence and referring to other authoritative books like "Tribes and Castes of Bengal" by H. H. Risley and "Encyclopedia Mundarica" by Rev. John Hoffman as also the statement in Encyclopedia Britannica, Vol. 15, and the Encylopaedia of Religion and Ethics by James Hastin ings, Vol.
IX, apart from the work of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed that although originally very severe restrictions were imposed amongst the Mundas as far as marriage in their own Kili or seat was concerned, the process of Munda assimilation to the larger Indian society facilitated by im proved communications and the introduction of formal system of education was being accelerated under the independent Government of India.
In Encyclopedia Britannica, Vol. 15 in the Chapter relating to Mundas it is also mentioned.
"The Munda speaking people, with the other Indian tribal groups, are being encouraged to adopt new customs and to become fully participating members of Indian society".
(page 991).
Similarly in the Encyclopedia of Religion and Ethics by James Hastings, Vol.
IX, it has been stated as to how Munda customs are being changed with the impact of the influence of Christianity.
Referring to the Chapter in Reid 's book it has been noticed by the High Court that according to the Munda conception a wife becomes a member of the Kili of her husband by legal fiction.
The High Court further relied on the decision in Wilson Reads vs C. section Booth(1) in which it was held that the question whether a person can be regarded as a member of the Khasi tribe was a question of fact depending upon the evidence produced in the case.
It was said that the whole object of reserving a seat for a particular tribe was to afford the community, ;is a whole, a right of representation and therefore the question of the membership of a particular individual of that community could not be considered divorced from the very object of legislation.
Thus the conduct of the community which had been given the right of special representation.
the manner and how the (1) A. T. R 376 community regarded a particular individual and whether the community as a whole intended to take the individual within its fold were all matters which would be relevant for consideration of the question whether a particular person could be regarded as a member of the Scheduled Tribe.
The High Court was alive to the fact and this point of distinction has been greatly emphasised by Mr. Anthony that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe.
Even though the facts were different, the approach in such matters which commended itself to the Assam High Court can hardly be regarded as unsound.
It appears to us, on a full consideration of the entire material.
that the following matters stand established in the present case : (1) The Mundas are endogamous and inter marriage with non Mundas is normally prohibited.
(2) That a Munda male along with his family on marrying a non Munda girl is often ex communicated or outcasted.
(3) That the rule of endogamy is not so rigid that a Munda cannot marry a non Munda after performing special ceremonies.
(4) That such marriages have been and are being sanctioned by the Parha Panchayat.
(5) That where a Munda male and his family are ' outcasted for marrying a non Munda they are admitted to the tribe after certain special ceremonies are performed.
Even in the account given by S.C. Roy as well as by P.W. 4 a Munda male is excommunicated for marrying a non Munda girl but such excommunication is not automatic.
It is left to the discretion of the panchayat.
If the panchayat approved of a particular marriage with a non Munda then no question of excommunication arises.
Thus several inroads appears to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself.
There is no evidence whatsoever that the late Shri Jaipal Singh was excommunicated or outcasted because he had married a non Munda.
On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe.
Reverting to the argument that a non Munda women cannot become a member of the Munda tribe by marriage even if the 377 marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made, special research in the matter and even if we exclude the opinion of P.W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of an non Munda girl in the community but the rest of his evidence cannot be brushed aside.
From all this evidence it is proved that once the marriage of a Munda male with a non Munda female is approved or sanctioned by the Parha panchayat they become members of the community.
They contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception.
We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony.
That rule has not been strictly followed and the marriage of a Munda male with a non Munda woman has been and is being approved and sanctioned by the Parha panchayat.
If a non Munda woman 's marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe.
The, concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact.
It is noteworthy that a Hinduised Munda and a Munda converted to Christianity can inter marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas.
Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing.
We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion.
We may also refer to Article 330 of the Constitution accord ing to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes.
Under section 33 (2) of the Act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member.
Article 342(1) empowers the President to specify 'the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be.
In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes.
Munda is one of such specified tribes or tribal communities.
It can well be said that the term "tribal community" has a wider connotation than the expression "tribe".
A person who, according to the strict custom of a tribe '.
378 cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community.
Where a non Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe.
She cannot, however, be_ excluded from the larger group, namely, the tribal community.
The High Court has taken the view that the use oil the term "tribal communities" in addition to the term "tribes" in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the anology of the wife taking the husband 's domicile.
Even without invoking the doctrine of domicile the respondent 's marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can be said that she became a me mber of the Munda tribal community.
We have not been shown any infirmity in the reasoning of the High Court on this point.
When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions.
In the result this appeal fails and it is dismissed but in view of the nature of the points involved we leave the parties to bear their own costs in this Court.
V.P.S. Appeal dismissed.
| An order of dismissal of complaint under section 203 Cr.
P.C., has to be made on judicially sound grounds.
It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction.
A Magistrate is not debarred,.
at this stage, from going into the merits of the evidence produced by the complainant, but the, object of such consideration could only be to whether There are sufficient grounds for proceeding further.
The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessary fail.
On the other hand, such grounds indicate the need for proceeding further in order to discover the truth after a full and proper investigation.
If, however, a bare perusal of a complaint or the evidence led in support of it show that the essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in the evidence produced that it would be a waste of time to proceed further the complaint could be properly dismissed under the section.
[9176 F H] Where, therefore, the Magistrate dismisses a complaint on a misreading of the oral evidence and the evidence, in fact, does not reveal,any absurdity so as to merit a forthright dismissal of the complaint under the section, such an order is.
fit to be set aside by the High Court.
|
N: Criminal Appeal Nos.
126 127 of 1972.
(From the Judgment and Order dt.
21 4 72 of the Gujarat Court in Criminal Revision Appln.
490 491 of 1971).
section K. Dholakia and R. Ramachandran for the appellants.
section P. Nayar and M. N. Shroff for the respondents.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Criminal Appeals Nos. 126 and 127 of 1972 both of which have been instituted on certificates granted under Article 134(1) (c) of the Constitution of India by the High Court of Gujarat against the judgment dated April 21, 1972 of a Division Bench of that Court upholding the conviction of each of the appellants under section 4 or section 5 of the Bombay Prevention of Gambling Act 1887 (hereinafter referred to as the Bombay Acc) and a sentence of imprisonment coupled with fine.
Appeal No. 126 of 1972 has been filed by eight persons.
Appellant No. 1 has been convicted of an offence under section 4 of the Bombay Act for keeping a common gaming house, while his seven co appellants were found guilty of an offence under section 5 of that Act.
In Criminal Appeal No. 127 of 1972, appellant No. 1 is the same person who figures as appellant No. 1 in the former appeal and the conviction recorded against him is one for an offence under section or, in the alternative, under section 5 of the Bombay Act.
His two co appellants have earned a conviction under the section last mentioned.
The two appeals have arisen from Criminal Revisions Nos.
490 A and 491 of 1971 both of which were dismissed by the High Court through the impugned judgment.
In Appeal No. 126 of 1972, appellant No. 1 was said to be keeping or using house No. 1408 situate in Ward No. 1 of Himatnagar town as a common gaming house and appellants Nos. 2 and 3 were said to have been employed by him for carrying on in that house the business of betting on Worli Matka figures.
On a search by the police, appellants Nos. 2 to 8 were found present in the house from which numerous betting slips and boards indicating the opening and closing figures of Worli Matka betting were recovered.
A personal search of appellants Nos. 2 and 3 yielded counterfoils of the said slips.
The allegations against the three appellants in criminal appeal No. 127 of 1972 were that all of them were found present for the purpose of gaming in the said house which was, as already stated, being rum by appellant No. 1 as a common gaming house.
The only contention raised on behalf of the appellants before the High Court was that the said house had not been proved to be a "common gaming house" within the meaning of the definition of that expression occurring in section 3 of the Bombay Act.
That definition runs thus In this Act, "common gaming house" means (i) in the case of gaming (a) on the market price of cotton, opium or other commodity or on the digits of the number used is stating such price, or (b) on the amount of variation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation, or (c) on the market price of any stock or share or on the digits of the number used in stating such price, or G (d) on the occurrence or non occurrence of rain or other natural event, or (e) on the quantity of rainfall or on the digits of the number used in stating such quantity, or (f) on the pictures, digits or figures of one or more playing cards or other documents or objects bearing numbers, or on the total of such digits 36 or figures, or on the basis of the occurrence or non occurrence of any uncertain future event, or on the result of any draw, or on the basis of the sequence or any permutation or combination of such pictures, digits, figures, numbers, events or draws any house, room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming: (ii) in the case of any other form of gaming, any house, room or place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room or place by way of charge for the use of such house, room or place or instrument or other wise howsoever.
" Clause (i) of the definition is obviously inapplicable to the cases in hand and the plea of the prosecution has throughout been that the house in question squarely falls within clause (ii) thereof.
This plea was challenged before the High Court on behalf of the appellants with the contention that the house abovementioned had not been shown to be kept for use "for the profit or gain of the person owning, occupying . . " because, according to their learned counsel, the profit or gain mentioned in the definition must have a direct relation with the use of the premises or with the instruments of gaming and a mere expectation or probability of profit arising from gaming itself would not be sufficient to bring the place within the definition of a common gaming house.
The High Court noted that there was a clear distinction between the language employed in the two clauses of the definition so that while the element of profit or gain of the person owning or occupying the premises in question was immaterial under clause (i), it was an essential requirement of clause (ii) which deals with forms of gaming not covered by sub clauses (a) to (f) of clause (i).
The High Court therefore analyses the provisions of clause (ii) and formed the opinion that the expression "or otherwise howsoever" occurring therein had the widest amplitude and did not take its colour from the immediately preceding portion of the clause which employs the words "by way, of charge for the use of such house, room or place or instrument".
Discussing the matter further the High Court was of the opinion that the requirement of the expression "for the profit and gain of the person owning, occupying. " was that the purpose of occupying or using the premises must be such profit or gain as meant a probability 37 Or expectation of profit or gain and not necessarily a certainty of it A and that the expression would embrace even a case where the keeper of the premises expected to gain by the process of gaming itself.
In coming to this conclusion, the High Court relied upon two Division Bench judgments of the Bombay High Court reported in Emperor vs Dattatraya Shankar Paranjpe and another(1) and Emperor vs Chimanlal Sankalchand(Z) and rejected as untenable an opinion to the contrary expressed in some Allahabad cases and a single Bench decision of the Bombay High Court in State vs Vardilal Natuchand, (Criminal Appeal No. 551 of 1964 decided on the 14th of January 1965).
The argument raised before the High Court on behalf of the appellants has been reiterated before us by their learned counsel, Shri section K. Dholakia, but on a consideration of the definition extracted above, we cannot agree with him.
It is common ground between the parties that the present case is not covered by clause (i) of the definition so that what has to be considered is the language of clause (ii) thereof.
For the applicability of the clause last mentioned, the following conditions have to be fulfilled: D (1) Instruments of gaming must be kept or used in the premises in question.
(2) The keeping or using of the instruments aforesaid must be for the profit or gain of the person owning, occupying, using or keeping such premises.
(3) Such profit or gain may be by way of charge for the use of the premises or of the instruments or in any other manner whatsoever.
We fully agree with the High Court that the expression "or otherwise howsoever" is of the widest amplitude and cannot be restricted F. in its scope by the words immediately preceding it which lay down that the profit or gain may be by way of charge for the use of the premises.
In this connection we may usefully quote from the judgment of Shah, Acting C.J., who delivered the judgment of the Division Bench in Emperor vs Dattatraya Shankar Paranjpe, (Supra).
"It is essential for the prosecution under this definition to establish that instruments of gaming were kept or used in he house, room or place for profit or gain of the person owning, occupying, using or keeping the house, room or place.
It may be done by establishing that the person did so either by a charge for use of the instruments of gaming or of the house, room or place, or otherwise howsoever.
The (1) 25 Bombay Law Reporter 1089 = A.I.R. 1924 Bombay 184.
(2) 47 Bombay Law Reporter 75 = A.I.R. 1945 Bombay 305.
38 expression "otherwise howsoever" appears to be very com prehensive, and does not suggest any limitation, such as is contended on behalf of the accused." . . . . . . . . . . . . . . . "We have heard an interesting argument on the question as to how far the words justify the somewhat restricted meaning which has been put upon the definition by the learned Judge of the Allahabad High Court; and after a careful consideration of the arguments urged on either side, and with great respect to the learned Judges, I have come to the conclusion that the words of the definition which we have to construe here would not have their full meaning if we were to accept the narrow construction.
I do not think that on a proper construction of the definition the prosecution can be restricted for the purpose of proving that a particular house, room or place is a common gaming house, to the two alternatives mentioned in the case of Lachchi Ram vs Emperor( ').
It is sufficient if the house is one in which instruments of gaming are kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knows that profit or gain 4 15 Will in all probability result from the use of the instruments of gaming.
The profit or gain may not actually result from such use.
But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments, it would be sufficient, in my opinion, to bring the case within the scope of the definition.
At the same time it is clear that the prosecution must establish that the purpose is profit or gain.
This may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house, room or place, or in any other manner that may be possible under the circumstances of the case, having regard to the nature of the game carried on in that house.
" The opinion of Shah, Acting C.J., was noted with approval in Emperor vs Chimanlal Sankalchand (supra), the reasoning adopted in which may be reproduced with advantage: "Lachchi Ram 's case was considered by a Division Bench of this Court in Emperor vs Dattatraya (1923) 25 Bombay (1) A.l.
R. 1922 All.
61. 39 Law Reporter (1089) and was dissented from.
It was held that to constitute a common gaming house it was sufficient if it was one in which instruments of gaming were kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knew that profit or gain would in all probability result from the use of the instruments of gaming.
The profit or gain may not actually result from such use.
But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments, it would be sufficient to bring the case within the scope of the definition.
C "It is argued by Mr. Pochaji on behalf of the accused that even in that case it was observed that 'the prosecution must establish that the purpose was profit or gain and that that might be done either by showing that the owner was charging for the use of the instruments of gaming or for the use of the room or place or in any other manner. ' The words 'or in any other manner, ' (which were used there instead of the words appearing at the end of the definition ' 'or otherwise howsoever ') cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem generis with what pre cedes those words, and hence even the hope of making a profit out of the gambling itself is sufficient to satisfy the requirement of the definition of common gaming house.
It may happen that the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making a profit, although he may not necessarily make it every time.
Such a hope is sufficient to make the house a common gaming house and the occupier liable for keeping such a house.
" We fully agree with the interpretation of the definition of the term "common gaming house" occurring in section 3 of the Bombay Act as propounded in, the two Bombay authorities cited above, as also in the impugned judgment, that interpretation being in conformity with the unambiguous language employed by the legislature.
The opinion to the contrary expressed in Lachchi Ram 's case (supra) and in other decisions is found to be incorrect.
The learned counsel for the appellants concedes that if the interpretation placed on clause (ii) of the definition by the impugned judgment be upheld, the conviction of the appellants in the two appeals 40 is well founded.
However, we may state that there is another good reason for up holding the conviction and that flows from the presumption which has to be raised under section 7 of the Bombay Act which states: "When any instrument of gaming has been seized in any house, room of place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the court is satisfied that the Police Officer who entered such house, room or place had reason able grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming, although no ' gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority of either of them: Provided that the aforesaid presumption shall be made, notwithstanding any defect in the warrant or order in pursuance of which the house, room or place was entered under section 6.
if the Court considers the defect not: to be a material one.
" It is not disputed that instruments of gaming were seized from the premises in question in both the appeals.
That circumstances, according to the section, "shall be evidence, until the contrary is proved, that such house, room or place is used as a comon gaming house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen . " .
The profit or gain mentioned in clause (ii) of the definition and also the other requirements of that clause are a matter of peremptory presumption which has to be raised by the court as soon as the seizure of instruments of gaming from the place in question is proved, as is the case here.
Admittedly, there is no evidence in rebuttal of the presumption which must therefore be raised and which furnishes a good basis for the conviction of the appellants.
In the result both the appeals fail and are dismissed.
P.B.R. Appeals dismissed.
| The term "common gaming house" has been defined in section 3 of the Bombay `Prevention of Gambling Act, 1887.
Under cl.
(i) of the section a house or place in which any of six different types of gaming enumerated therein takes place or in which instruments of gaming are kept or used for such gaming would fall within the definition.
Clause (ii) of that section states that in the case of any other form of gaming (a) any house, room or place whatsoever in which any instruments of gaming are kept or used (b) for the profit or gain of the person owning, occupying, using or keeping such house, etc., (c) by way of charge for the use of such house, room or instrument or otherwise howsover, would be a common gaming house.
Certain instruments of gaming were seized by the police from the premises of appellant No. 1 in both the appeals.
He was convicted for keeping a common gaming house while the other appellants were convicted of an offence under section 5 of the Act.
On appeal, rejecting the appellants ' contention that a mere expectation or probability of profit arising from gaming, without establishing a direct relation with the use of the premises or with instruments of gaming, would not be sufficient to bring the place within the scope of the definition, the High Court held that the purpose of occupying or using the premises must be such profit or gain as meant a probability or expectation of profit or gain and not necessarily a certainty of it.
F The argument urged before the High Court was reiterated in appeal before this Court.
Dismissing the appeals, ^ HELD: 1.
The expression "or otherwise howsoever" is of the widest amplitude and cannot be restricted to the words immediately preceding it, namely, "for profit or gain. by way of charge for the use of the premises." [37F] 2.
For proving that a particular house, room or place was a common gaming house, it would be sufficient if it was shown that the house was one in which instruments of gaming were kept or were used for the profit or gain of the person keeping or using such place, that is, where the person keeping or using the house knew that profit or gain would in all probability la result from the use of the instruments of gaming.
Profit or gain may not actually result from such use.
Even the hope of making a profit out of the 34 gambling would be sufficient to satisfy the definition.
In given case the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making profit although he may not necessarily make it every time.
Such a hope would be sufficient to make the house a common gaming house and the occupier liable for keeping such a house.
At the same time the prosecution must establish that the purpose of keeping or using the instruments was profit or gain, which may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house, room or place or in any other manner that may be possible having regard to the nature of the game carried [38E, 39E F] 3.
The profit or gain and the other requirements mentioned in cl.
(ii) of the definition are a matter of peremptory presumption which has to be raised by the court as soon as seizure of instruments of gaming from the place is proved.
Section 7 which allows a presumption to be raised against the accused, provides that seizure of instruments of gaming from the premises shall be evidence, until the contrary was proved, that they were used as a common gaming house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen.
In the instant case there is no evidence in rebuttal of the presumption.
[40F Gl
|
Civil Appeal No. 6626 of 1983.
From the Judgment and order dated 18.5.1983 of the Allahabad High Court in C.M.W.P. No. 13741 of 1982.
H 620 S.N. Kacker and R.B. Mehrotra for the Appellant.
B.D. Agarwala and Miss Asha Rani for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by the tenant against an order upholding the order of eviction.
The ground of eviction was on the landlord 's bona fide need and requirement.
The appeal arises out of the judgment and order of the High Court of Allahabad dated 18th of May, 1983 and also against the order dated 23rd of May, 1983 dismissing a review application by the said High Court.
Shri P.K. Mukerjee, respondent No. 1 herein had filed an application under section 3 of the U.P. Act No. 3 of 1947 (Temporary Control of Rent and Eviction Act), hereinafter referred to as the old Act, seeking permission to file the suit for eviction of the tenant, the father of the appellant herein, on the ground that accommodation in dispute was bona fide required by the landlord for his personal need.
In September, 1971 the Rent Control and Eviction officer rejected the application of the landlord and held that his requirement was not bona fide.
On 12th of November, 1971 the Commissioner allowed the revision filed by respondent No. 1 against the order of the Rent Control and Eviction officer dated 5th of September, 1971.
It may be mentioned that on 15th of July, 1972 the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to as the new Act came into effect.
On 2nd of August, 1972 the State Government rejected the representation of the tenant namely, the father of the appellant filed under section 7 of the old Act against the order of the Commissioner dated 2nd of November, 1971.
On or about 7th of February, 1975 the learned Single Judge of the High Court of Allahabad allowed the writ petition of the tenant and set aside the orders of the Commissioner and the State Government hereinbefore mentioned.
On 3rd of August, 1978 a Division Bench of the High Court of Allahabad allowed the appeal of respondent No. 1 and set aside the judgment of the learned Single Judge of the High Court dated 7th of February, 1975 and upheld the orders of the Commissioner and the State Government allowing the eviction of the tenant.
In September, 1978 respondent No. 1 moved an application under section 21 read with section 43(2)(rr) of the new Act.
Thereafter it is alleged that respondent No. 1 had executed an agreement to sell the disputed premises in favour of the appellant 's wife namely, Smt.
Madhu Soni.
It is material to refer to the said agreement in brief.
The agreement is dated as mentioned hereinbefore 7th of November, 1978 621 and was entered into between Shri P.K. Mukerjee, the landlord and Smt.
Madhu Soni wife of Shri D.K. Soni (son of Shri Harbans Lal Soni) the then tenant.
It was stated that the landlord had filed an application against Shri H.L. Soni the father in law of vendee for permission to file a suit for eviction against him on account of his personal need for the aforesaid premises and permission had been granted.
It also recited that a portion of the said land which was demarcated in the site plan measuring about 121 ' x 101.5 ' of the vendor which would be for the construction of a house would be in exclusive possession of the vendor and the rest of the property at 8, Panna Lal Road, Allahabad being the disputed premises would be sold to Smt.
It also recited that the vendee or his family members would have no right of whatsoever nature and the vendee, that is to say, the appellant had given up his tenancy right in respect of the same, that is to say, the portion to be kept with the vendor and the premises will be built on the vacant land with the money that would be obtained by selling the property to Smt.
Madhu Soni.
The property was sold for Rs. 1,00,000 out of which Rs.5,000 was paid as earnest money and it was stipulated that the rest of the money would be paid at the time of the registration.
It was further agreed that the parties would move the proper authorities as early as possible for permission to transfer and the sale deed would be executed within one month of the grant of the permission and notice to the vendee.
It was further stated that if the vendee failed to get the sale deed executed after one month from the date of permission and notice to the vendee by the vendor, the earnest money of Rs.5,000 would be forfeited and the right of the vendor would be as it subsisted prior to the agreement.
It was further provided that in the event of non execution of the sale deed on account of any act or failure on the part of the vendee in pursuance of the agreement to sell, the property would stand released in favour of the vendor and the earnest money of Rs.5,000 would be forfeited.
It was clearly stipulated that the need of the vendor for the premises still subsisted and this agreement was being entered into since it would be possible for the vendor to construct a house for himself on the land not agreed to be transferred measuring 121 ' x 101.5 ' .
On that basis the parties had signed agreement on 7th November, 1978.
On 12th of December, 1978 the father of the present appellant Shri H.L. Soni who was the original tenant died leaving behind his widow and two sons including the appellant and one daughter.
It was alleged that on 18th of December, 1978 respondent No. l sent a letter of condolence to the appellant on the death of appellant 's father.
On 622 22nd of December, 1978 appellant informed the Prescribed Authority before whom the application under section 2 1(1)(a) of the new Act red with section 43(2)(rr) was pending about the death of Shri H.L Soni.
On 23rd of March, 1979 respondent No. 1 moved an application for substitution in Case No. 53 of 1978 for bringing on record the heirs of deceased Shri H.L. Soni along with application under section 5 of the Limitation Act.
On 10th of November, 1979, the Prescribed Authority rejected the petitioners application for substitution and held that respondent No. 1 had full knowledge of the death of Shri H.L. Soni and he did not move the application within time.
On 11th of December, 1979 respondent No. 1 moved a second application under section 2 1(1)(a) read with section 43(2)(rr) of the new Act on the same ground on which the first application was moved.
The second application was registered as Case No. 68 of 1979.
It is alleged further that on 12th of March, 1981 respondent No. 1 executed two separate agreements to sell the property in dispute in favour of R.P. Kanodia and P.K. Kanodia respectively.
The Prescribed Authority on 7th of July, 198 1 held that the second application under section 2 1(1)(a) read with section 43(2)(rr) of the new Act being Case No. 68 of 1979 was within time and directed the tenant to be evicted from the premises in dispute.
The Additional District Judge, Allahabad on 25th of October, 1982 dismissed the appeal of the tenant filed against the order of the Prescribed Authority dated 7th of July, 1981.
On 11th of March, 1983 the appellant 's wife Smt.
Madhu Soni filed a suit for injunction restraining Respondent No. 1 from dispossessing her from the premises in dispute on the strength of registered agreement and she asserted that she resided in the accommodation as a result of part performance under section 53A of the .
Initially injunction was granted ex parte by the Trial Court and thereafter it was vacated after hearing respondent No. 1.
Aggrieved thereby an appeal } was filed by Smt.
Madhu Soni in which the High Court had stayed dispossession.
The High Court thereafter dismissed the writ petition of the tenant against the orders of the Prescribed Authority for eviction and the order of the Additional District Judge.
A review petition was filed by the appellant and the same was dismissed.
This appeal by special leave is against that decision of the High Court dated 18th of May, 1983 Behind this long tale of dates the questions involved in this appeal are short, namely, firstly in view of the provisions of section 43(2)(rr) was the High Court right, in the facts and circumstances of the case specially the death of original tenant being alleged, and in view of the fact that the execution of the order passed for eviction had 623 become final before coming into operation of the new Act the order was proper and secondly, how far the subsequent events, namely, the A agreement with the wife of one of the sons of the original tenant to purchase property as well as the agreement with the Kanodias mentioned hereinbefore demolish or destroy the case of a bona fide need of the landlord.
In other words are these not sufficient subsequent events which destroy the landlord 's bona fide need and as such should be taken note of by the appropriate courts in ordering eviction.
In this appeal, therefore, we have to keep in mind two aspects of law namely, the finality of the decisions and secondly, how far and to what extent subsequent events should be taken note of in order to do justice between the parties.
Before we refer to the judgment of the High Court and the submissions made before us, it is necessary for us to bear in mind certain decisions of this Court on these aspects on which reliance was placed.
This Court in Pasupuleti Venkateswarlu vs The Motor & General Traders, ; dealing with the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, dealt with the question as to how far the subsequent events can be taken note of.
This Court held that for making the right or remedy, claimed by a party justly and meaningfully as also legally and factually in accordance with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
In the facts of that case, this Court said that the High Court was right in taking into consideration the facts which came into being subsequent to the commencement of the proceedings.
Therefore the fact that in determining what justice required the Court was bound to consider any change, either in fact or in law, which had supervened since the judgment was given.
F This general principle and proposition of law was of ancient vintage.
See the observations of the U.S. Supreme Court in Pattersion vs State of Alabama, ; at page 607).
The actual facts, however, of this case were entirely different, and so it was not necessary to refer to those facts.
In Ramji Dayawala & Sons (P) Ltd. vs Invest Import, ; , this principle was again reiterated entirely under different context.
This Court also reiterated the same principle in Hasmat Rai and another vs Raghunath Prasad; , where referring to Pasupuleti Venkateswarlu vs The Motor and General Traders (supra), this Court held that when an action was brought by the landlord under Rent Restriction Act for eviction on the H 624 ground of personal requirement, his need must not only be shown to A exist at the date of the suit, but must exist on the date of appellate decree, or the date when a higher court dealt with the matter.
It was emphasised by this Court that if during the progress and passage of proceeding from court to court subsequent events had occurred which if noticed would non suit the plaintiff, the court had to examine and evaluate the same and mould the decree accordingly.
The tenant was entitled to show that the need or requirement no more existed by pointing out such subsequent events, to the court including the appellate court.
Otherwise the landlord would derive an unfair advantage, and it would be against the spirit or intendment of Rent Restriction Act which was enacted to fetter the unfettered right of re entry.
In such a situation, it was reiterated that, it would be incorrect to say that as the decree or order for eviction was passed against the tenant he could not invite the court to take into consideration subsequent events.
But the tenant could be precluded from so contending when decree or order for eviction had become final.
(Emphasis supplied see the observations of Desai, J. at page 617(G.H) of the report).
In Syed Asadullah Kazmi vs The Addl.
District Judge, Allahabad and others; , , this Court was concerned with a residence at Allahabad.
It was held by this Court that the order dated 25th March, 1977 of the appellate authority releasing a portion of the premises in favour of the third respondent therein and leaving the remaining portion in the tenancy of the appellant therein acquired finality when the proceedings taken against it by the appellant had failed.
The Prescribed Authority was bound to give effect to that final order and was not acting outside its jurisdiction or contrary to law where he ordered eviction.
This Court reiterated that it was true that subsequent events had to be taken into account by a statutory authority or court when considering proceeding arising out of a landlord 's petition for ejectment of a tenant on the ground of the landlord 's personal need.
But in that case the order for release of a portion of the accommodation had acquired finality before the death of the landlord and the controversy concluded by it could not be reopened thereafter.
This Court further reiterated that inasmuch as the question which arose before the Prescribed Authority on the application of the appellant after the proceedings for release had acquired finality, it was not open even for this Court to reopen the proceeding for release.
Not quite relevant to the present controversy, there is, however, just an observation in Sher Singh & Ors.
vs The State of Punjab; , It was a decision dealing with Article 21 of the Constitution.
There is an observation that traditionally, subsequent events had to be taken into account in the area of civil law.
It is necessary, however, to refer to a 625 decision of the special bench of the Allahabad high Court in Bansilal Sahu vs The Prescribed Authority and another, [ 19801 ALL.
L.J. 331 which arose under the new Act.
It was held therein that the question whether the eviction of the tenant had to be ordered from any specified part of the building under tenancy was not within the jurisdiction of the Prescribed Authority, while acting under clause (rr) of section 43(2), irrespective of the occurrence of subsequent events which might make it improper to order the eviction from the entire building or which might tend to establish that the need set up by the landlord could be satisfied by ordering eviction of the tenant from a specified part of the building under tenancy.
It was held that subsequent events or facts could not be considered so as to defeat the final order and the Prescribed Authority was bound to order eviction.
The Special Bench of the Allahabad High Court overruled another Bench decision of the Allahabad High Court in the case of Smt.
Sarju Devi vs Prescribed Authority, Kanpur, [19771 All.
L.J. 251 and accepted the proposition laid down in Tara Chand Khandelwal vs Prescribed Authority, Agra, [1976] All L.J. 708.
Satish Chandra, C.J. speaking for the Allahabad High Court observed that the opening clause of this provision entitled the Prescribed Authority to find out whether permission under section 3 of the old Act had been obtained on any ground specified in subsection (1) or sub section (2) of section 21 of the present Act and that the same had become final.
It was, therefore, according to the Chief Justice, the beginning as well as the end of his jurisdiction to record findings.
If the conclusion was in the affirmative the Prescribed Authority had no discretion but to order the eviction of the tenant from the building under tenancy.
It was further held that the jurisdiction of the Prescribed Authority was to order the eviction of the tenant from the building under tenancy.
It had not expressly been conferred any power to order eviction from a portion or part of the building under tenancy.
It was further held that the jurisdiction of the Prescribed Authority while deciding an application under section 2 1 of the present Act could not be equated with the jurisdiction which had been conferred for giving effect to the permission granted under section 3 of the old Act.
The two situations were different.
Clause (rr) of section 43(2) of the present Act specifically prohibited the Prescribed Authority from satisfying itself afresh that the grounds existed.
We are of the opinion that this is the correct state of law and if that is the position the so called subsequent events are not germane to the question to be decided by the High Court.
In the aforesaid light, in our opinion, in the facts of this case the High Court was right.
626 It may be mentioned that clause (rr) of section 43(2) of the new Act provides as follows: "where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub section (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 prescribed 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: Provided that no application under this clause shall be maintainable on the basis of a permission granted under section 3 of the old Act, where such permission became final more than three years before the commencement of this Act: Provided further that in computing the period of three years, the time during which the applicant has been prosecuting with due diligence any civil proceeding whether in a court of first instance or appeal or revision shall be excluded" All these aspects were considered by the High Court.
We recognise that unless the statute expressly prohibits as it did in the instant case, by the aforesaid clause, cautious recognition of subsequent events to mould the relief should be taken note of.
In the instant case in substance the need was there of the landlord for his occupation of his own premises.
The landlord was a Government servant and wanted to reside in Allahabad and for this purpose he sought eviction and had obtained an order of eviction prior to coming into operation of the new Act.
The hope of the landlord to come back to his origin was not defeated by the provisions of the new Act.
In vain he moved from court to court and in the meantime there has been escalation of prices and restrictions on alienation of land and in order to save himself from this situation the landlord tried to sell part of the premises in question 627 subsequent to the decree to the wife of one of the sons of the tenant.
This is not material.
The agreement in question further stipulated that the present need of the landlord subsisted, and out of this agreement only Rs.5,000 was advanced in 1978 and nothing was paid thereafter.
The agreement for sale to Smt.
Madhu Soni reads as follows: "That it is made clear that the need of the vendor for the premises still subsists and this agreement is being entered into since it will be possible for the vendor to construct a house for himself on the land not agreed to be transferred measuring 121 ' x 101.5 '.
The parties, therefore, have signed this Deed on the 7th day of November, 1978 In view of the subsequent events, namely, non permission of the Urban Ceiling Authorities, failure to register and execute the document, delay for permission on the part of the vendee and the escalation of prices, that is to say, if in 1979 perhaps it was possible to build some kind of accommodation with the amount of sale price to be obtained from the execution of the document which it is not possible in 1987 and further there is no readiness or willingness on the part of the vendee to execute the document, after the existence of the basic need of the landlord, for which originally the proceedings were taken and finalised, we do not find it possible to hold that subsequent events have so materially altered as to defeat the original order for possession passed in favour of the respondents.
We do not find perusing the records that there was any failure for substitution on the part of the landlord to take steps.
The other son of the deceased was not residing with the deceased in the premises in question, therefore, there was no need to substitute him.
The other agreements to which reference had been made was the alleged agreement with R.P. Kanodia and P.K. Kanodia respectively.
Nothing was proved before us that agreement is valid today or given effect to in view of the provisions of the Land Ceiling Act.
It may be mentioned that the Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 by the order dated 20th of April, 1979 refused permission to sell in favour of Smt.
Madhu Soni.
On 7th November, 1978 the wife of the appellant and the landlord had entered into an agreement to sell a portion of the land as well as the house in dispute to the appellant 's wife, and for that purpose a sum of 628 Rs.5,000 had been paid as earnest money as mentioned hereinbefore, A and in the agreement, it was clearly stated that the parties would move the proper authorities as early as possible for permission to transfer the property and the sale deed would be executed within one month of the grant of such permission and notice to the vendee.
Clause 6 of the agreement further stipulated that if the vendee failed to get the agreement executed after one month from the date of permission and notice to the vendee the earnest money of Rs.5,000 would be forfeited and the right of the vendor will be as it subsisted prior to the agreement.
The requisite permission in terms of the agreement was obtained by the landlord in the year 1979 and a registered notice consequently was also sent to the appellant 's wife requiring her to get the sale deed executed in accordance with the agreement.
Thereafter a reply dated 2 1st September, 1979 was also received by the landlord.
However, the appellant 's wife failed to get the sale deed executed and consequently the agreement itself became infructuous and the earnest money stood forefeited.
The need as it has been reiterated in the agreement of the landlord for his own purpose still subsisted.
There was no delay in bringing the heirs of the deceased tenant on record.
In the aforesaid view of the matter there was no substance in the objection filed against the execution of the order of eviction in terms of clause (rr) of section 43(2) of the new Act.
In any event such events were frivolous after the order had become final.
The subsequent events which we have examined do not in any way effect the decision of need for possession of the premises in question of the respondent landlord.
It may be mentioned that there was an application by the respondent for the review.
This was heard and no order was made on that application.
It was reiterated in the counter affidavit filed by the respondent that since 1st of December, 1978 till todate the appellant had not paid any money to the landlord nor deposited the damages in the court.
At the time of his death late H.L. Soni was residing in the house in dispute with his eldest son Shri D.K. Soni, the appellant, his wife, Smt.
Madhu Soni and Mrs. Kailash Soni, the widow.
Other son Shri A.K. Soni and daughter Mrs. Kangan Khanna were not residing with Late Shri H.L. Soni at the time of his death and as such they were not heirs as contemplated by section 3(g) of the new Act.
The landlord was a Government servant and was posted at Lucknow and as such during his tenure he had to reside at Lucknow but after his retirement he wanted to settle down at his ancestral house at Allahabad and it was for this reason that the proceedings for eviction were taken.
629 It was not proved to the satisfaction of the authorities below that any agreement to sell the premises to Kanodias has been given effect to and had been acted upon or can be acted upon.
It that view of the matter the need indubitably succeeds and even if the allegations made are taken into consideration do not merit any revision of the order which had become final.
Finality of the judicial decisions is one of the essential ingredients upon which the administration of justice must rest.
In that view of the matter we are of the opinion, even if the contentions advanced on behalf of the respondents are taken into consideration and a new look is taken because of the subsequent events, which in our opinion cannot be done in view of the specific prohibition in clause (rr) of section 43(2) of the new Act, the appellant hac no case.
In the aforesaid view of the matter we are of the opinion that the High Court was right in not interfering with the order of the Prescribed Authority.
After all finality of the decisions of the authorities under the Act has to be given due reverence and place in the judicial administration.
Taking cautious note of the relevant subsequent events, we find no merit in the appellant 's contentions inasmuch as there is nothing on record to show that the landlord 's bona fide need for his residence in Allahabad has been met or can be met in the state of affairs except by the order which is impugned in this appeal.
In the premises, the appeal must fail and is accordingly dismissed without any order as to costs.
Since, however, the appellant has been staying in the disputed premises for quite some time, we grant time till 30th of April, 1988 to deliver vacant possession of the premises subject to filing usual undertaking within four weeks from today.
In default in filing undertaking the order would become executable forthwith.
S.L. Appeal dismissed.
| % Sub section (2) of section 9 of the makes the assessment procedure prescribed under the general sales tax law of the appropriate State applicable to the assessment to be made under the Central Act.
Section 13 of the Andhra Pradesh General Sales Tax Act, 1957 requires the dealer to submit returns in such manner, within such period and to such authority as may be prescribed.
Sub section (1) of section 14 permits the assessing authority to assess the amount of tax due on the returns submitted under section 13 only within a period of four years from the expiry of the year to which the assessment relates.
Sub section (3) permits the assessing authority to make best judgment assessment where a dealer (i) fails to submit return before the date prescribed; (ii) produces the accounts registers and other documents after inspection and (iii) submits a return subsequent to the date of inspection, within a period of six years from the expiry of the year to which the assessment relates.
In the main appeal before this Court the assessee respondent filed its return relating to the quarter ending 31st March, 1969 on 7th August, 1969 under the .
The last date prescribed by law was 24th May, 1969.
The Commercial Tax officer passed the assessment order on 3rd August, 1973, beyond four years from 31st March, 1969, the last day of the assessment year 1968 69.
The assessee 's appeals against that order were dismissed by the Assistant Commissioner and the Sales Tax Appellate Tribunal.
The High Court in revision, however, held that the assessment made after four years from the last day of the assessment year was not a valid assessment.
737 In the connected appeal the respondent who was the assessee filed the annual return in respect of the assessment year 1968 69 under the A provisions of the Central Act on 19th August, 1969 after the expiry of the prescribed date.
The order of assessment was passed on 2nd August, 1973 beyond four years from the last day of the assessment year 196869.
An appeal against that order was dismissed by the Assistant Commissioner.
The Sales Tax Appellate Tribunal, however, allowed the appeal holding that the assessment had been passed beyond four years from the last day of the assessment year.
The revision petition preferred by the State was dismissed in limine by the High Court.
In the appeals by special leave filed by the State, it was contended for the respondent that since the returns in the cases had been accepted, even though they had filed been beyond the prescribed date, the assessments made thereon could not be considered as best judgment assessments and, therefore, sub section (3) of section 14 of the Act under which it is permissible to make best judgment assessments would be inapplicable.
Allowing the appeals.
D ^ HELD: 1.1 on a true construction of sub section
(1) and sub section (3) of section 14 of the Andhra Pradesh General Sales Tax Act, 1957 it is apparent that where a return is not filed by a dealer before the date prescribed in that behalf under the Act the assessing authority has jurisdiction to complete the assessment within a period of six years from the expiry of the year to which the assessment relates.
[744C] 1.2 The two types of cases which fall under sub section
(1) and sub section
(3) of section 14 of the Act respectively are mutually exclusive.
The return on the basis of which an assessment is to be made under section 14(1) is a return filed within the prescribed period and in such a case the assessment has to be completed within a period of four years from the expiry of the period to which the assessment relates.
The Act confers a distinct advantage on such a dealer who is prompt in filing his return inasmuch as he acquires immunity against assessment on the expiry of the said period of four years.
All cases where the return is submitted beyond the prescribed date fall under sub section
(3) of section 14 of the Act.
Assessment in such cases may be completed within six years from the expiry of the year to which the assessment relates.
When once it is established in a case that a return has not been filed within the prescribed period such case falls outside section 14(1) of the Act and therefore the period of four years prescribed therein becomes automatically inapplicable.
It clearly falls under cl.
(i) of sub section
(3) of section 14 of the Act and assessment can be H 738 made in such a case within the expiry of the period of six years.
In the instant cases the returns were not filed within the prescribed dates.
The assessments have, therefore, been rightly made within six years from the expiry of the year to which the assessments relate.
[742G H; 743A B; 744C] 2.
Whether the assessment made is the best judgment or not has no bearing at all on the period within which an assessment can be made under the Act.
It depends upon the other conditions mentioned in sub section
(1) and (3) of section 14.
Best judgment assessment can be made even in a case falling under sub section
(1), as is evident from the latter part of that sub section which reads: "but if the return appears to him to be incorrect or incomplete he shall after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, to assess to the best of his judgment, the amount of tax due from the dealer." Yet such best judgment assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates.
Therefore, in the instant case merely because the assessments are not best judgment assessments, it cannot be said that sub section
(3) of section 14 is inapplicable.
Neither the High Court nor the Tribunal gave adequate attention to the words 'before the date prescribed in that behalf ' in cl.
(i) of sub section
(3) of section 14.
They laid emphasis only on the words 'fails to submit return ' in the said sub clause to arrive at a wrong conclusion.
[743C, H; 744A B] State of Andhra Pradesh vs Pyarelal Malhotra, (13 S.T.C. 946), and State of Madras vs S.G. Jayaraj Nadar & Sons, 28 S.T.C. 700, distinguished.
|
tion (Criminal) No. 270 of 1988.
(Under Article 32 of the Constitution of India).
Parmanand Katara in person.
A.D. Singh, U.R. Lalit (N.P.).
R.B. Misra.
Ms. A. Subha shini, B.R. Agarwala, Ms. Sushma Manchanda, Ms. Suman Rasto gi and Ms. 1000 Indu Malhotra (N.P.) for the Respondents.
The following Judgments of the Court were delivered RANGANATH MISRA, J.
The petitioner who claims himself to be a 'small human right activist and fighting for the good causes for the general public interest ' filed this applica tion under Article 32 of the Constitution asking for a direction to the Union of India that every injured citizen brought for treatment should instantaneously be given medi cal aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in the event of breach of such direc tion, apart from any action that may be taken tot negli gence, appropriate compensation should be admissible.
He appended to the writ petition a report entitled 'Law helps the injured to die ' published in the Hindustan Times.
In the said publication it was alleged that a scooterist was knocked down by a speeding car.
Seeing the profusely bleed ing scooterist, a person who was on the road picked up the injured and took him to the nearest hospital.
The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital locat ed some 20 kilometers away authorised to handle medico legal cases.
The samaritan carried the victim, lost no time to approach the other hospital but before he could reach, the victim succumbed to his injuries.
The Secretary, Ministry of Health & Family Welfare of the Union of India, the Medical Council of India and the Indian Medical Association were later impleaded as respond ents and return to the rule has been made by each of them.
On behalf of the Union of India, the Under Secretary in the Ministry of Health & Family Welfare filed an affidavit appending the proceedings of the meeting held on 29.5.
1986 in which the Director General of Health Services acted as Chairman.
Along with the affidavit, decisions of papers relating to the steps taken from time to time in matters relating to matters relevant to the application but confined to the Union Territory of Delhi were filed.
A report in May, 1983, submitted by the Sub Committee set up by the Home Department of the Delhi Administration on Medico Legal Centers and Medico Legal Services has also been produced.
The Secretary of the Medical Council of India in his affida vit referred to clauses 10 and 13 of the Code of Medical Ethics drawn up with the approval of the Central Government under section 33 of the Act by the Council, wherein it had been said: "10 .
Obligations to the sick: 1001 Though a physician is not bound to treat each and every one asking his services except in emergencies for the sake of humanity and the noble traditions of the profession, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he incurs in the discharge of his ministrations, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention.
A physician should endea vour to add to the comfort of the sick by making his visits at the hour indicated to the patients.
The patient must not be neglected: A physician is fee to choose whom he will serve.
He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service.
Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant.
No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care.
" The affidavit has further stated: "The Medical Council of India therefore ex pects that all medical practitioners must attend to sick and injured immediately and it is the duty of the medical practitioners to make immediate and timely medical care avail able to every injured person whether he is injured in accident or otherwise.
It is also submitted that the formalities under the Criminal Procedure Code or any other local laws should not stand in the way of the medi cal practitioners attending an injured person.
It should be the duty of a doctor in each and every casualty department of the hospital to attend such person first and thereafter take care of the formalities under the Criminal Procedure Code.
The life of a person is far more important than the legal formalities.
In view of this, the deponent feels that it is in 1002 the interest of general human life and welfare that the Government should immediately make such provisions in law and amendments in the existing laws, if required, so that immediate medical relief and care to injured persons and/or serious patients are available without any delay and without waiting for legal for malities to be completed in the presence of the police officers.
The doctor attending such patients should be indemnified under law from any action by the Government/police authori ties/any person for not waiting for legal formalities before giving relief as a doctor would be doing his professional duty; for which he has taken oath as medical practition er.
It is further submitted that it is for the Government of India to take necessary and immediate steps to amend various provi sions of law which come in the way of Govern ment Doctors as well as other doctors in private hospitals or public hospitals to attend the injured/serious persons immediately without waiting for the police report or completion of police formalities.
They should be free from fear that they would be unneces sarily harassed or prosecuted for doing his duty without first complying with the police formalities . .
It is further submit ted that a doctor should not feel himself handicapped in extending immediate help in such cases fearing that he would be harassed by the Police or dragged to Court in such a case.
It is submitted that Evidence Act should also be so amended as to provide that the Doctor 's diary maintained in regular course by him in respect of the accident cases would be accepted by the courts in evidence without insisting the doctors being present to prove the same or subject himself to cross examina tion/harassment for long period of time.
" The Indian Medical Association which is a society registered under Act 21 of 1860 through its Secretary has stated in the affidavit that the number of deaths occurring on account of road accidents is on the increase due to lack of timely medical attention.
In the affidavit it has further stated: "The second reason is on account of the pre vailing police rules and Criminal Procedure Code, which necessitate the fulfilment of several legal formalities before a victim can be rendered medical aid.
The rationale behind this com 1003 plicated procedure is to keep all evidence intact.
However, time given to the fulfilment of these legal technicalities sometimes takes away the life of a person seriously injured.
Members of public escorting the injured to the nearest hospital are reluctant to disclose their name or identity as he is detained for eliciting information and may be required to be called for evidence to Courts in future.
Similarly, the private practicing doctors are harassed by the police and are, therefore, reluctant to accept the roadside casualty.
It is submitted that human life is more valuable and must be preserved at all costs and that every member of the medical profession, may, every human being, is under an obligation to provide such aid to another as may be necessary to help him survive from near fatal accidents.
" The Committee under the Chairmanship of the Director General of Health Services re ferred to above had taken the following deci sions: "1.
Whenever any medico legal case attends the hospital, the medical officer on duty should inform the Duty Constable, name, age, sex of the patient and place and time of occurrence of the incident, and should start the required treatment of the patient.
It will be the duty of the Constable on duty to inform the con cerned Police Station or higher police func tionaries for further action.
Full medical report should be pre pared and given to the Police, as soon as examination and treatment of the patient is over.
The treatment of the patient would not wait .for the arrival of the Police or com pleting the legal formalities. 2, Zonalisation as has been worked out for the hospitals to deal with medico legal cases will only apply to those cases brought by the Police.
The medico legal cases coming to hospital of their own (even if the incident has occurred in the zone of other hospital) will not be denied the treatment by the hospital where the case reports, nor the case will be referred to other hospital be cause the incident has occurred in the area which belongs to the zone of any other hospi tal.
The same police formalities as given in para 1 above will be followed in these cases.
1004 All Government Hospitals, Medical Institutes should be asked to provide the immediate medical aid to all the cases irre spective of the fact whether they are medico legal cases or otherwise.
The practice of certain Government institutions to refuse even the primary medical aid to the patient and referring them to other hospitals simply because they are medico legal cases is not desirable.
However, after providing the pri mary medical aid to the patient, patient can be referred to the hospital if the expertise facilities required for the treatment are not available in that Institution." (underlining are ours) To the said affidavit of the Union of India also, the minutes of the 10th Meeting of the Standing Committee on Forensic Medicine (a Committee set up by the Ministry of Home Affairs of the Government of India) held on 27.4.1985 have been appended.
These minutes show that the Committee was a high powered one consisting of the Director General, the Joint Secretary of the Ministry of Health of the Govern ment of India, a Professor from the All Indian Institute of Medical Sciences, the Professor of Forensic Medicine from Maulana Azad Medical College, New Delhi, the Director & Professor of Forensic Medicine, Bhopal, the Deputy Director, Central Forensic Science Laboratory, Calcutta and certain officers of the Ministry.
The proceedings indicate that the Director Generals of Police, Tamil Nadu and Uttar Pradesh were also members of the Committee.
From the proceedings it appears that the question of providing medico legal facili ties, at the upgraded primary health centers throughout the country was under consideration but the Committee was of the opinion that time was not ripe to think of providing such facilities at the upgraded primary health centers.
One of the documents which forms part of the Union of India 's affidavit is the copy of a letter dated 9th of May, 1978 which indicates that a report on some aspects of Medico Legal Practice in India had been prepared and a copy of such report was furnished to the Health Secretaries of all the States and Union Territories more than eleven years back.
From these documents appended to the affidavit of the Union of India, it is clear that the matter has been engag ing the attention of the Central Government as also of the Governments of the States and the Union Territories for over a decade.
No improvement of the situation,, however, is perceptible and the problem which led to the filing of this petition seems to exist in hospitals and private nursing homes and clinics throughout the country.
1005 In course of the hearing, we directed the petitioner to place on record for the consideration of the Court and the respondents a draft guideline which could be prescribed to ease the situation keeping the professional ethics in view.
When the same was filed, copies thereof were circulated to the respondents and all parties have been heard on the basis of the guidelines submitted on behalf of the petitioner.
The Medical Council of India has placed on record a copy of the Code of Medical Ethics and counsel has made a statement that there is no prohibition in law justifying the attitude of the doctors as complained.
On the other hand, he stated that it is a part of the professional ethics to start treating the patient as soon as he is brought before the doctor for medical attention inasmuch as it is the paramount obligation of the doctor to save human life and bring the patient out of the risk zone at the earliest with a view to preserving life.
In the affidavit filed on behalf of the Union of India on 3rd August, 1989, it has been said: "There are no provisions in the Indian Penal Code, Criminal Procedure Code, Motor Vehicles Act etc.
which prevent Doctors from promptly attending seriously injured persons and acci dent case before the arrival of Police and their taking into cognisance of such cases, preparation of F.I.R. and other formalities by the Police.
However, the deponent most humbly submits that the respondent shall always abide by the directions and guidelines given by the Hon 'ble Court in the present case.
" There can be no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.
The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the inno cent may be protected and the guilty may be punished.
Social laws do not contemplate death by negligence to tantamount to legal punishment.
Article 21 of the Constitution casts the obligation on the State to preserve life.
The provision as explained by this Court in scores of decisions has emphasised and reiter ated with gradually increasing emphasis that position.
A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty bound to 1006 extend medical assistance for preserving life.
Every doctor whether at a Government hospital or otherwise has the pro fessional obligation to extend his services with due exper tise for protecting life.
No law or State action can inter vene to avoid/delay the discharge of the paramount obliga tion cast upon members of the medical profession.
The obli gation being total, absolute and paramount, laws of proce dure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.
On this basis, we have not issued notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law.
The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others.
We must make it clear that zonal regulations and classifica tions cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee, as extracted above, is to become operative.
We order accord ingly.
We are of the view that every doctor wherever he be within the territory of India should forthwith be aware of this position and, therefore, we direct that this decision of ours shall be published in all journals reporting deci sions of this Court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio.
The Regis try shall forward adequate number of copies of this judgment to every High Court so that without delay the respective High Courts can forward them to every Sessions Judge within their respective jurisdictions and the Sessions Judges in their turn shall give due publicity to the same within their jurisdictions.
The Medical Council of India shall forward copies of this judgment to every medical college affiliated to it.
Copies of the judgment shall be forwarded to every State Government with a direction that wide publicity should be given about the relevant aspects so that every practicing doctor would soon become aware of the position.
In case the State Governments and the Union Territories which have not been heard file any representation against the direction, they shall have liberty to appear before this Court and ask for appropriate 1007 direction within three months from now.
Applications filed after that date shall not be entertained by the Registry of this Court.
Until altered, this judgment shall be followed.
Before we part with the case, we place on record our appreciation of the services rendered by the petitioner by inviting the attention of the Court to the problem raised in this case.
We must also place on record our appreciation of the cooperation and understanding exhibited by the Union of India in the relevant Ministry, the Medical Council of India and the Indian Medical Association.
No order for costs.
OZA, J. I entirely agree with what has been observed by my learned brother and also agree with the directions indi cated in the Order made by Hon 'ble Shri Justice R.N. Misra but I would like to add: As has been quoted by my learned brother, a high power committee by the Government of India was appointed at a high level and this was long before and the proceedings of 29th May, 1986 have been filed and have also been quoted.
The Medical Council of India alongwith their affidavit have filed Code of Medical Ethics which everyone in the medical profession is expected to follow but still the news item which is the starting point of this petition is of 1988.
The Code of Medical Ethics flamed by the Medical Council was approved on 23rd October, 1970.
This only reveals an unfor tunate state of affairs where the decisions are taken at the higher level good intentioned and for public good but unfor tunately do not reach the common man and it only remains a text good to read and attractive to quote.
It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life.
It could not be disputed that inspite of development economical, political and cultural still citi zens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospital (run or managed by the State) public authority or a private person or a medical professional doing only private practice he is always called upon to rush to help such an injured person and to do all that is within his power to save life.
So far as this duty of a medical professional is concerned its duty coupled with human instinct, it needs no decision nor any code of ethics nor any rule or law.
Still in the Code of Medical Ethics framed by the Medical Council of India Item 13 specifically provides for it.
Item 13 reads as under: 1008 "13.
The patient must not be neglected.
A physician is free to choose whom he will serve.
He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service.
Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant.
No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care.
" Medical profession is a very respectable profession.
Doctor is looked upon by common man as the only hope when a person is hanging between life and death but they avoid their duty to help a person when he is facing death when they know that it is a medico legal case.
To know the re sponse of the medical profession the Medical Council of India and also the All India Medical Association were no ticed and were requested to put up their cases.
Some apprehensions were expressed because of some misun derstanding about the law of procedure and the police regu lations and the priorities in such situations.
On the basis of the affidavit filed by the Union of India and considering the matter it is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assist ance immediately.
There is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.
But on behalf of the medical profession there is one more apprehen sion which sometimes prevents a medical professional in spite of his desire to help the person, as he apprehends that he will be witness and may have to face the police interrogation which sometimes may need going to the police station repeatedly and waiting and also to be a witness in a court of law where also he apprehends that he may have to go on number of days and may have to wait for a long time and may have to face sometimes long unnecessary cross examina tion which sometimes may even be humiliating for a man in the medical profession and in our opinion it is this appre hension which prevents a medi 1009 cal professional who is not entrusted with the duty of handling medico legal cases to do the needful, he always tries to avoid and even if approached directs the person concerned to go to a State hospital and particularly to the person who is in charge of the medico legal cases.
We there fore have no hesitation in assuring the persons in the medical profession that these apprehensions, even if have some foundation, should not prevent them from discharging their duty as a medical professional to save a human life and to do all that is necessary but at the same time.
We hope and trust that with this expectation from the members of the medical profession, the policy, the members of the legal profession, our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of inter rogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.
We also hope and trust that our law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily and it is known that our law courts always have respect for the men in the medical profession and they are called to give evidence when necessary and attempts are made so that they may not have to wait for long.
We have no hesitation in saying that it is expected of the members of the legal profession which is the other honourable profes sion to honour the persons in the medical profession and see that they are not called to give evidence so long as it is not necessary.
It is also expected that where the facts are so clear it is expected that necessary harassment of the members of the medical profession either by way of requests for adjournments or by cross examination should be avoided so that the apprehension that the men in the medical profes sion have which prevents them from discharging their duty to a suffering person who needs their assistance utmost, is removed and a citizen needing the assistance of a man in the medical profession receives it.
We would also like to mention that whenever on such occasions a man of the medical profession is approached and if he finds that whatever assistance he could give is not sufficient really to save the life of the person but some better assistance is necessary it is also the duty of the man in the medical profession so approached to render all the help which he could and also see that the person reaches the proper expert as early as possible.
R.S.S. Petition disposed of.
| The petitioner, who claims himself to be a human right activist, filed this writ petition in public interest on the basis of a newspaper report concerning the death of a scoot erist who was knocked down by a speeding car.
The report further states that the injured person was taken to the nearest hospital but the doctors there refused to attend on him; that they told that he be taken to another hospital, located some 20 kilometers away, which was authorised to handle medico legal cases; and that the victim succumbed to his injuries before he could be taken to the other hospital.
The petitioner has prayed the directions be issued to the Union of India that every injured citizen brought for treat ment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death, and in the event of breach of such direction, apart from any action that may be taken for negligence, appropriate compensation should be admissible.
The Secretary, Ministry of Health & Family Welfare of the Union of India, the Medical Council of India, and the Indian Medical Association were later impleaded as respond ents.
Documents relating to the steps taken from time to time in this 998 regard were produced.
by the respondents.
Reference was made to the Code of Medical Ethics drawn up by the Medical Coun cil of India, wherein the need to attend to the injured/serious persons immediately without waiting for the police report or completion of police formalities was recog nised and the Government of India was requested to take necessary and immediate steps to amend various provisions of law which come in the way of government doctors as well as other doctors in private hospitals or public hospitals in this regard.
The proceedings of the meeting held on 29.5.1986 in which the Director General of Health Services acted as Chairman were also referred to.
This Committee had formulated some guidelines.
On behalf of the Union of India it was stated that there was no provision in the Indian Penal Code, Criminal Procedure Code, or the Motor Vehicles Act, etc.
which prevented doctors from promptly attending seriously injured persons and accident cases before the arrival of police.
Disposing of the Writ Petition, this Court, HELD: (1) Article 21 of the Constitution casts the obligation on the State to preserve life.
[1005G] (2) There can be no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.
[1005F] (3) The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.
Social laws do not contemplate death by negligence to tantamount to legal punishment.
[1005F] (4) Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.
[1006A] (5) No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession.
The obligation being total, absolute and paramount, laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.
[1006B] 999 (6) The Court gave directions for giving adequate pub licity to the decision in this case by the national media, the Doordarshan and the all India Radio, as well as through the High Courts and the Sessions Judges.
[1006E F] Per G.L. Oza, J. (concurring) (1) The Code of Medical Ethics framed by the Medical Council was approved on 23rd October, 1970.
This only re veals an unfortunate state of affairs where the decisions are taken at the highest level good intentioned and for public good but unfortunately do not reach the common man and it only remains a text good to read and attractive to quote.
[1007D E] (2) It is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately.
There is also no doubt that the effort to save the person should be the top priority not only of the medi cal professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.
[1008F] (3) The members of the legal profession, our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.
[1009C] (4) Law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily.
[1009D]
|
Appeals Nos. 1409 and 1721 of 1966.
Appeals by special leave from the judgment and order dated November 15, 1965 of the Bombay High Court, Nagpur Bench in Special Civil Application Nos. 746 and 747 of.
section K. Mehta and K. L. Mehta.
for the appellants (in both the appeals).
M. section Gupta, for respondents Nos. 1 and 2 (in C.A. No. 1409 of 1966.
section section KhanduJa, for respondent No. 3 (in both the appeals).
658 The Judgment of the Court was delivered by Shah, J.
Badridas son of Ramgopal was the owner of fields Survey Nos. 2 and 9/2 of village Bhamberi, taluq Akot, District Akola.
On February 26, 1958, Badridas granted a lease for cultivation of the lands to two brothers Kishan and Manik.
At the end of the agricultural year 1958 59 Badridas ' took possession of the lands from Kishan and Manik representating that he desired to cultivate the lands personally.
Badridas cultivated the lands during the agricultural years 1959 60 and 1960 61, and thereafter on January 18, 1961 he granted a lease of the lands for four years to Bhagwant son of Pundalik Kishan and Manik then applied on June 30, 1961 under section 36(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, for an order restored them to possession alleging that their eviction from the lands was illegal.
The Additional Tahsildar dismissed the application, but in appeal the order was reversed.
In the view of the appellate authority Kishan and Manik were in 1958 59 tenants of the lands and they were evicted otherwise than in accordance with the law, and that they were entitled to be restored to possession under section 36(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
In a petition by Bhagwant the Revenue Tribunal reversed the order of the appellate authority.
The Tribunal held that since Kishan and Manik had given up pos session of the lands volutarily and had allowed Badridas to cultivate the lands for the following two years, they had no right to be reinstated into possession of the lands, especially after the lands were let out by Badridas to Bhagwant.
Kishan and Manik then moved in the High Court of Bombay at Nagpur, two Special Civil Applications Nos.
746 and 747 of 1964 in respect of the two fields Survey Nos. 2 and 9/2 separately.
The High Court set aside the order of the Revenue Tribunal and directed that an order for pos session be made in favour of Kishan and Manik in respect of the two lands.
With special leave, these appeals have been preferred by Bhagwant.
The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, was brought into force on December 30, 1958.
Section 20 provides : "A tenant may terminate the tenancy at any time by surrendering his interest of a tenant in favour of the landlord.
Provided that such surrender shall be in writing and shall be verified before the Tahsildar in the prescribed manner." 659 Section 36 of the Act provides : ( 1 ) A tenant .
entitled to possession of any land .
under any of the provisions of this Act or as a result ofeviction in contraven tion of sub section (2) may apply in writing for each.
possession to the Tahsildar.
(2) No landlord shall obtain possession of any land, held by a tenant except under an order of the Tahsildar.
For obtaining such order he shall make an application in the prescribed form and within.
a period of two years from the date on which the right to obtain possession of the land, is deemed to have accrued to him: For the agricultural year 1958 59 Kishan and Manik were tenants in respect of two lands in question.
Badridas took possession of the lands at the end of that year.
Granting that Kishan and Manik delivered the lands voluntarily, there could not under S 20 of the Act be a valid surrender, unless the surrender was in writing and verified before the Tahsildar and in the prescribed manner.
Possession obtained by Badridas was not lawful, for Badridas obtained possession of the land from the tenants without complying with the requirements of section 20 and of sub section
(2) of section 36.
Sub section (2) of section 36 prohibits the landlord from obtaining possession of any land held by a tenant except under an order of the Tahsildar.
Delivery of possession voluntarily by Kishan and Manik did not render the possession of Badridas valid.
Under section 36(1) a tenant who has been evicted in contravention of sub section
(2) may apply in writing to the Tahsildar for such possession.
Counsel for the appellant contended that section 36(2) does not commence with the expression "Notwithstanding any agreement,.
usage, decree or order of a court of law" as section 19 of the Act does,.
and on that account it may reasonably be inferred that the Legislature intended that only those tenants shall be deemed entitled to possession within the meaning of section 36(1) who were dispossessed by fraud, coercion or misrepresentation, and not tenant who had voluntarily parted with possession of the lands.
We are unable to agree with that contention.
Section 19 provides that not with standing any agreement, usage, decree or order of a court of law tenancy of any land held by a tenant shall not be terminated exception the cases specified therein.
Thereby it was intended to make the provisions of section 19 paramount.
In section 20 'of the Act which deals with surrender it is expressly enacted that surrender shall be in writing and shall be Verified in the prescribed manner.
Surrender of tenancy which does not comply with the requirements of section 20, 660 is ineffective.
Again, sub section
(2) of section 36 imposes a disability upon the landlord from obtaining possession of any land occupied by a tenant except under an order of the Tahsildar.
The terms of subs.
(2) of section 36 are explicit : they are not subject to any implication ' that possession obtained with the consent of the tenant, but without an order of the Tahsildar is valid In a recent judgment Madhao s/o Tatya Sonar vs The Maharashtra Revenue Tribunal and ors.
(1) the High Court of Bombay held that section 36(2) is plenary and controls section 20 of the Act.
In the present case there is no surrender of tenancy in writing and no verification of surrender by the Tahsildar.
We need express no opinion on the question Whether mere verification by the Tahsildar without an order of the Tahsildar authorising the landlord to obtain possession disentitles the tenant to claim possession under section 36(1).
The appeals fail and tire dismissed.
Having regard to all the circumstances, however, we think, there should be no order as to costs in this Court.
Counsel for the appellant Bhagwant submitted that there are crops standing on the lands, and prayed that the appellant may be allowed to reap them.
0one months time from the date of this judgment is given to the appellant to deliver possession of the lands.
Y.P. Appeals dismissed.
(1) Special Civil Application No. 206 of 1967 decided on September 11/12 1969.
| Four accused were charged with the offences under section 120 B (conspiracy to commit murder) and section 302 read with section 34.
The fourth accused was also charged under section 302 read with section 109 for the offence of abetting the murder committed by the other three accused.
The accused 2 to 4 were related to one another while the first accused was a servant of the brother of the second accused.
There were constant disputes between the fourth accused and the deceased over a right of passage and the right to tap water.
The day before the murder the fourth accused, went to the house of the deceased and exhorted his companions, one of whom was the second accused, to kill the deceased.
On the next day (the day of the murder) the fourth accused threatened to kill the deceased and later, accompanied by the 1st and 2nd accused, followed the deceased when he went out at about 10 p.m. Fifteen minutes after the deceased was thus seen being followed by the accused, the deceased was stabbed.
The third accused tried to persuade the two constables who were proceeding towards the scene when they heard the disturbance that nothing untoward had happened, but the constables proceeded to the scene, and, on noticing the wounded body of the deceased, chased and caught the first accused and recognised the second accused who had escaped.
One of the constables lodged the first information against the accused 1 to 3.
The fourth accused was absconding and after he was arrested, all the accused were put up for trial.
The High Court convicted the first accused under section 302 I.P.C., and accused two to four for offences under section 120 B and section 302 read with section 34, I.P.C. The fourth accused was also convicted for the offence under section 302 read with section 109.
In appeal by special leave to this Court by the 'fourth accused, this Court examined the evidence, contrary to its usual practice, as it was represented that the evidence did not support the conclusion of the High Court, and HELD : The evidence clearly established the complicity of the appellant in the murder of the deceased, and the charges under section 302 read with section 109 I.P.C. and of conspiracy were fully supported by the evidence.
As regards the charge under section 302 read with section 34, though, it was highly probable that at the time of the actual murder the appellant was either present with the other three co accused or was somewhere nearby, the evidence did not establish beyond reasonable doubt his presence at or near the spot when the murder was actually committed, and therefore, he must be given the benefit of doubt in regard to that charge.
Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention.
Participation in the commission of the offence in furtherance of the common intention invites its application.
120 Section 109, on the other hand, may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal emission takes place or has intentionally aided the commission of an offence by an act or illegal omission.
Criminal conspiracy is a substantive offence under section 120 B I.P.C. It differs from the other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement.
Though there is close association of conspiracy with incitement and abetment, the substantive offence of criminal conspiracy is wider in amplitude than abetment by conspiracy as contemplated by section 107 I.P.C. Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming, but like other offences it can be proved by circumstantial evidence.
Surrounding circumstance and antecedent and subsequent conduct, among other factors constitute relevant material.
In fact, because of the difficulties of having direct evidence of criminal conspiracy, once 'reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by any one of them in reference to their common intention after the same is entertained becomes, according to the law of evidence relevant for proving both conspiracy and the offences committed pursuant thereto.
(124B H]
|
ivil Appeal No. 3 1543 155 of 1985.
From the Judgment and Order dated 26.3.
1985 of the Jammu & Kashmir High Court in L.P.A. (W) No. 59 of 1984.
For the Appellant In Person in Civil Appeal No. 3 154/85 M.N. Tiku, Rakesh Tiku and Pandey Associates for the Respondents.
431 M.N. Tiku, Rakesh Tiku and Pandey Associates for the Appellants.
For the Respondent In Person in Civil Appeal No. 3155/85.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Jammu & Kashmir Industries Limited (hereinafter called 'company ') is a company registered under the Indian and is wholly owned and managed by the State of Jammu & Kashmir.
Pyare Lal Sharma was employed by the company as Chemical Engineer.
His serv ices were terminated by the Managing Director of the company on June 14, 1983.
Sharma 's writ petition was allowed by a learned Single Judge of the Jammu & Kashmir High Court.
On appeal by the company the Letters Patent Bench upheld the judgment but denied back wages to Sharma.
This is how these two appeals, one by the.company and the other by Sharma, are before us.
We may briefly notice the necessary facts.
Pyare Lal Sharma joined the company as Assistant Chemical Engineer on July 12, 1972.
In 1974 he was sent to England as management trainee but he returned back without completing the train ing.
Sharma 's conflict with the company started in 1976 when he filed a suit against the company in Jammu & Kashmir High Court with various reliefs including a direction that he be again sent to England on company 's expense.
The suit was dismissed and further appeal to the Division Bench was also dismissed.
He then filed another suit in the Delhi High Court claiming Rs.50 lakhs as damages from the company but the same did not proceed on technical grounds.
Thereafter, it seems, Sharma started suspecting mala fide in every action of the company and resorted to court proceedings even on slight pretext.
He challenged the order of transfer from Baramulla to the headquarters by way of suit in the Jammu & Kashmir High Court.
Interim stay, initially granted, was vacated by the High Court.
In December, 1979 he applied for leave on medical grounds without disclosing the ailment.
He remained absent from December 7, 1979 to March 7, 1980 without any sanctioned leave.
Disciplinary proceedings were initiated against him on the charge of unauthorised absence and he was placed under suspension on March 8, 1980.
He filed Writ Petition No. 58/80 in the Jammu & Kashmir High Court against suspension.
Ultimately Sharma expressed re grets and he was reinstated into service by an order dated May 15, 1980.
In April, 1981 he was transferred from head quarters to one of 432 the units.
He again filed a writ petition in the Jammu & Kashmir High Court challenging the order of transfer but the same was dismissed.
Thereafter he filed Writ Petition No. 4086 of 1982 in this Court which was heard by Chinnappa Reddy, J. (Vacation Judge) on 1st of June, 1982.
The learned Judge passed the following order: "Issue notice returnable on June 15, 1982.
Notice be also served on the counsel for the State of Jammu & Kashmir Mr. Altar Ahmad.
Mr. Altar Ahmad will take instructions from his clients and assist this Court to know the precise facts of the case which it is impossi ble to find from the petitioner.
1 have sug gested to the petitioner that he may engage a counsel but he does not appear to be inclined to do so.
Nor is he willing to be assisted by the counsel engaged by the court.
" The writ petition was, however, dismissed as withdrawn on June 15, 1982.
Sharma filed two more writ petitions being 293 of 1982 and 410 of 1982 in the Jammu & Kashmir High Court challenging the promotions of some other officers.
Sharma absented from duty on September 8, 1982.
He was asked to explain his absence.
A para out of his reply is as under: "I have been submitting charge sheet against you since last one year to authorities about your corrupt practices, communal character, and illegal financial advancement you have made but no action has been taken against you since you utilise political pressure and bribed the chairman.
" Sharma was served with a charge sheet dated September 24, 1982 and he was placed under suspension.
Use of deroga tory language in various communications was one of the charges against him.
He submitted his reply to the charge sheet on October 7, 1982.
Part of the opening paragraph is as under: "You have become frustrated, lost balance of mind and to cover the various irregularities committed by you for example . .
You will be prosecuted for levelling false charge sheet and false charges against me.
Coming to the charge sheet with above reverence I have to say as under." On October 22, 1982 an enquiry officer was appointed to enquire 433 into the charges against Sharma.
He challenged the order of suspension by way of Civil Writ Petition 661 of 1982 in the Jammu & Kashmir High Court.
The High Court stayed the sus pension by its order dated December 20, 1982.
The order of suspension having been stayed by the High Court it was incumbent on Sharma to have joined duty.
But inspite of company 's letters asking him to do so he remained absent.
Sharma filed Writ Petition 471/82, Writ Petition 129/83 and Letters Patent Appeal 24/83 for payment of his salary and allowances for various periods which were granted by the High Court.
It is also on record that while in service Sharma unsuc cessfully fought assembly elections on two occasions.
He filed his nomination papers for contesting elections to the Lok Sabha from Baramulla constituency.
But the nomination papers were rejected.
Regulation 16.14 of Jammu & Kashmir Industries Employees Service Rules and Regulations before amendment was as under: "The service of the permanent employee shall be terminated by the company, if (a) his post is abolished or (b) he is declared on medical grounds to be unfit for further service after giving three months ' notice or pay in lieu thereof.
For similar reasons the service of a temporary employee also be dispensed with after giving him one month 's notice or pay in lieu thereof.
" The above quoted regulation 16.14 was amended on April 20, 1983.
Amended regulation is as under: "16.14.
the services of an employee shall be terminated by the Company if: (a) his post is abolished, or (b) he is declared on medical grounds to be unfit for further service, or (c) if he remains on un authorised absence, or(d) if he takes part in active politics.
In the case of (a) and (b) above the services shall be terminated after giving three months notice to a permanent 434 employee and one month 's notice to a temporary employee or pay in lieu thereof.
In the case of (c) and (d) above the services of an employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of issue of notice.
The management shall be empowered to take a decision without resorting to further enquiries.
By order of the Board of Directors.
" The company issued a show cause notice dated April 21, 1983 in terms of clause (c) of amended regulation 16.
The notice was in the following terms: "In compliance to the orders of the Hon 'ble High Court Your suspension was stayed till further orders vide Order No. JKI/319/82 dated 21.12.82 issued vide endorsement No. Adm.(P) 80 65/4866 dated 21.12.82.
From that date also you have continuously remained absent unautho risedly from your duties.
You are, therefore, served this notice to show cause within a period of 15 days as to why your services should not be terminated under rules of the Corporation." No reply to the show cause notice was submitted by Sharma.
By an order dated June 14, 1983 the Managing Direc tor of the company terminated his service,.
The termination order is reproduced as under: "Shri Pyare Lal Sharma Chemical Engineer, Jammu and Kashmir Industries Limited has remained on unauthorised absence continuously from 21.12.82 (since the date of his suspen sion was stayed as per orders from the Hon 'ble High Court).
Shri Sharma was served with a notice under Jammu & Kashmir Industries Limit ed Employees Service Rules to show cause within a period of 15 days as to why his services should not be terminated.
This notice was served to him under registered post but the same was received back in this office and later on delivered to him in person on 7.5.83 as per his request.
Shri Sharma has failed to explain his position.
It has now also been established that Shri Sharma was 435 taking part in active politics during the period of his un authorised absence and has filed nomination papers for contesting elec tion from 1 Baramulla Parliamentary Con stituency.
Now that his unauthorised absence as well as his taking part in the active politics has been established, and in exercise of the powers vested in the management under Jammu & Kashmir Industries Employees Services Regulations the services of said Shri Pyare Lal Sharma Chemical Engineer J & K Industries Limited are hereby terminated.
" Sharma challenged the order of termination by way of Writ Petition No. 70 of 1984 before the Jammu & Kashmir High Court.
Learned Single Judge by his judgment dated October 16, 1984 allowed the writ petition on three grounds.
The learned Judge found the impugned order violative of Rules of Natural Justice as no opportunity to show cause was afforded to Sharma in respect of the ground of taking part in active politics.
It was also held that the Board of Directors having appointed Sharma, The Managing Director who is subordinate authority could not terminate his services.
Finally, the learned Judge held regulation 16.14 to be arbitrary and as such violative of Article 14 of the Consti tution of India.
The Letters Patent Bench of the High Court dismissed the appeal of the company but denied back wages to Sharma.
The Bench held that Sharma 's services could not be terminated by an authority subordinate to the authority which appointed him.
The Bench also found that either three months notice or salary in lieu thereof under regulation 16.14 was mandatory.
The Division Bench did not agree with the other reasons given by the learned Single Judge in support of his judg ment.
Mr. Pyare Lal Sharma appeared in person and argued his case.
He has been of no assistant to us.
During the course of arguments we suggested to Mr. Sharma to engage a counsel which de declined.
We also repeatedly offered to him to have the services of a counsel engaged by the Court but he did not agree and insisted on arguing the case himself.
From the pleadings of the parties, documents on the record, the judgment of the learned Single Judge and of the Letters Patent Bench 436 and from Sharma 's arguments the following points arise for our consideration: 1.
Whether Regulation 16.14 is arbitrary and as such ultra vires Article 14 of the Constitution of India.
Whether three months ' notice or pay in lieu of the notice period was required to be given under Regulation 16.14.
The termination order having been passed by the Managing Director who was an authority subordinate to the Board of Direc tors which appointed Sharma, the order was bad on that ground.
Whether the impugned order is viola tive of rules of natural justice so much so that the ground of taking part in active politics was not mentioned in the show cause notice whereas it was relied upon in the termination order.
Whether the period of absence, which was prior to the date of coming into force of the amended Regulation 16.14, could be taken into consideration for invoking ground (c) of the Regulation.
We see no arbitrariness in Regulation 16.14.
The Regula tion has been framed to meet four different eventualities which may arise during the service of a company employee.
Under this regulation services of an employee may be termi nated (a) if his post is abolished or (b) if he is declared on medical grounds to be unfit for further service or (c) he remains on unauthorised absence or (d) if he takes part in active politics.
In the case of (a) and (b) three months notice to a permanent employee and one month notice to temporary employee or pay in lieu thereof is to be given.
In case of (c) and (d) a show cause notice, to explain his conduct satisfactorily, is to be given.
So far as grounds (a) and (b) are concerned there cannot be any objection.
When a post is abolished or an employee is declared medical ly unfit for further service the termination is the obvious consequence.
In the case of abolition of post the employee may be adjusted in some other post if legally permitted.
Ground (c) has also a specific purpose.
"Remains on un authorised absence" means an employee who has no respect for discipline and absents himself repeatedly and without any justification 437 or the one who remains absents for a sufficiently long period.
The object and purport of the regulation is to maintain efficiency in the service of the company.
The provision of show cause notice is a sufficient safe guard against arbitrary action.
Regarding ground (d) "acting politics" means almost whole time in politics.
Company job and active politics cannot go together.
The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds (c) and (d) in Regu lation 16.14 concerning the employees of companies/corpora tions/public undertakings is within the competence of the management.
We do not agree with the Division Bench of the High Court that three months ' notice or pay in lieu thereof was to be given to Sharma under Regulation 16.14.
It is clear from the plain language of the regulation that three months notice or pay in lieu, is only required when termination is under ground (a) or (b).
Regarding (c) and (d), the regula tion provides for a 15 days notice to explain the conduct satisfactorily and there is no requirement of any other notice or pay in lieu thereof.
We may now take up the third point.
Sharma was appointed as Chemical Engineer by the Board of Directors.
The powers of the Board of Directors to appoint officers of Sharma 's category were delegated to the Managing Director on Septem ber 12, 1974 and as such from that date the Managing Direc tor or became the appointing authority.
Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of Article 311(1) of the Constitution of India nor the extension of that guaran tee on parity.
There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under Article 311(1) of the Constitution of India.
An employee of the company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed.
Since on the date of termination of Sharma 's services the Managing Direc tor had the powers of appointing authority, he was legally competent to terminate Sharma 's services.
The learned Single Judge allowed the writ Petition on the fourth point though the same did not find favour with the Division Bench.
Grounds (c) and (d) in regulation 16.14, exclusively and individually, are sufficient to terminate the services of an employee.
Once it is established to the satisfaction of the authority that an employee 438 remains on unauthorised absence from duty, the only action which can be taken is the termination of his services.
Similar is the case when an employee takes part in active politics.
The finding in the termination order regarding taking part in active politics cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of remaining unauthorised absence from duty.
This Court in State of Orissa vs Vidyabhushan Mohapatra, [1963] 1 Supp.
SCR 648 and Railway Board vs Niranjan Singh, has held that if the order can be supported on one ground for which the punishment can lawfully be imposed it is not for the courts to consider whether that ground alone would have weighed with the authority punishing the public servant.
Thus there is no force in this argument.
This takes us to the last point which we have discovered from the facts.
Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground.
The company had no authori ty to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceed ings against him.
The regulation was amended on April 20, 1983 and grounds (c) and (d) were added.
Amended regulation could not operate retrospectively but only from the date of amendment.
Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date.
The show cause notice was issued to Sharma on April 21, 1983.
The period of absence indicated in the show cause notice is obviously prior to April 20, 1983.
The period of absence prior to the date of amendment cannot be taken into consideration.
When prior to April 20, 1983 the services of person could not be terminat ed on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma.
It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed.
The date of show cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983.
Whole of this period being prior to the date of amendment of regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14.
The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside.
439 When the termination order is set aside by the courts normally the servant becomes entitled to back wages and other consequential benefits.
This case has a chequered history.
From 1976 onwards there has been continuous litiga tion and mistrust between the parties.
The facts which we have narrated above go to show that Sharma has equally contributed to this unfortunate situation.
In view of the facts and circumstances of this case we order that sixty per cent of the back wages be paid to Sharma.
Money already received by Sharma under orders of this Court or the High Court shall be adjusted and the balance paid to him.
If the money already paid to Sharma is more than what we have ordered then there shall be no recovery from him.
Civil Appeal 3154/85 is allowed to the extent indicated above, Civil Appeal 3155/85 filed by the company is dis missed.
C.M.P. 1213/ 88 is dismissed as infructuous.
There shall be no order as to costs.
| The appellant plaintiff, who was an employee of the respondent company, was dismissed from service on the bais of a domestic enquiry held against him in respect of certain charges of misconduct.
Thereupon, he filed a civil suit before the Court of Munsiff and sought the relief of back wages and injunction not to give effect to the order of dismissal The respondents in their written statement raised inter alia the plea that the suit was not maintainable as the relief sought was available to the plaintiff under section 2A of the .
The Trial Court came to the conclusion that the Civil Court had the jurisdiction to try the suit.
The High Court, in revision, held that the nature of the relief which was sought by the appellant plaintiff was such which could only be granted under the , and therefore the civil court had no jurisdiction to try the suit.
Before this Court it was contended on behalf of the appellant (i) on the basis of the language of section 9 of the Code of Civil Procedure the civil court had jurisdiction to try all kinds of suits except those which were either expressly or impliedly barred, and the High Court was not right in reaching the conclusion that it was impliedly barred; (ii) as the remedy under the was discretionary, it could not he said that there was a remedy available to the appellant under the scheme of the Act and thus the jurisdiction of the civil court could not be barred by implication.
On the other hand, it was contend ed on behalf of the respondents that (i) the relief sought by the appellant in substance was the relief of reinstate ment with backwages which relief was available only in the ; (ii) the Act itself provided the procedure and remedy and it was not open to the appellant to approach the civil court for getting the relief which he could get only under the scheme of the Act; and (iii) the discretion of the Government to make a reference or not was not arbitrary.
Dismissing the appeal, this Court.
641 HELD: (1) It is clear that wherever the jurisdiction of the civil court was expressly or impliedly barred, the civil court will have no jurisdiction.
[644B] (2) It is clear that except under the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages.
At best, he could seek the relief of damages for breach of contract.
(3) The manner in which the relief has been framed by the appellant in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and backwages.
This relief could only be available to a workman under the .
[644C D] (4) The discretion of the State Government for making a reference under section 12(5) of the is not arbitrary and it would not be said that the reference to the labour court or tribunal is not available to a worker who raises an industrial dispute.
[646G] Bombay Union of Journalists & Ors.
vs The State of Bombay & Anr., ; ; Calcutta Electric Supply Corporation Ltd. vs Ramratan Mahato, AIR 1973 Cal 258; Dhulabhai etc.
vs State of Madhya Pradesh; , ; Nanoo Asan Madhavan vs State of Kerala, [1970] Vol.
I LLJ Kerala 272, referred to.
(5) In view of the language of section 10, read with section 12(5) of the , an adequate remedy was available to the appellant under the scheme of the itself which is the Act which provides for the relief of reinstatement and backwages which in fact the appellant sought before the civil court by filing a suit.
[648B] (6) The scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under the Indus trial Disputes Act and for which a complete procedure and machinery has been provided in this Act.
[649F G]
|
Appeal No. 529 of 1958.
Appeal from the judgment and decree dated March 6,1956, of the Allahabad High Court in Civil Misc.
Writ No. 464 of 1954.
C. B. Agwarwala, K. B. Asthana and C. P. Lal, for the appellants.
M. C. Setalvad, Attorney General of India, A. V. Viswanatha Sastri and section P. Varma, for the respondent.
August 22.
The Judgment of the Court was delivered by SHAH, J.
Under a treaty between the East India Company and Nawab Asafuddaula, the Province of Banaras was ceded about the year 1775 to the East India Company.
The Company then granted a sanad to Raja Chet Singh, the former ruler of Banaras, and under that sanad, the rights and powers previously held by Raja Chet Singh were conferred afresh.
Raja Chet Singh granted in jagir, pargana "Syudpore Bhettree" in perpetuity to his Diwan Ousan Singh as remuneration for services rendered to his family.
Raja Chet Singh having renounced his gadi, the East India Company confirmed the grant made by the Raja in favour of Ousan Singh.
Raja Chet Singh was succeeded by Raja Mahip Narain Singh who executed a sanad in favour of Ousan Singh affirming the grant.
Land revenue settlements were made in the Province of Banaras about the year 1789 90, but the jagirs including "Syudpore Bhettree" were excluded from that settlement.
Ousan Singh died in or 216 about the year 1800, and his son Sheo Narain Singh succeeded to the jagir.
In the enquiry held by the Collector of Ghazipore into the proprietary right claimed by the jagirdar under Regulation 11 of 1819, it was declared that the grant to Ousan Singh was for life only and did not confer a heritable or transferable tenure in the parganas.
The decision of the Collector was confirmed by the Commissioner of Bihar and Banaras, subject to the recommendation that Sheo Narain Singh should be maintained in possession of the parganas for life.
The Government then directed in 1828 that a detailed settlement be made with the village zamindars, and offered Sheo Narain Singh allowance for life of one half of the revenue to be assessed on the pargana.
Sheo Narain Singh declined to accept the offer and commenced an action in the civil court contesting the validity of the order resuming the jagir.
The Government considered the question afresh, and resolved to revise the order of resumption and in July 1830, ordered that Sheo Narain Singh be considered Tahsildar of parganas "Syudpore Bhettree," and that the office be treated as hereditary devolving upon the descendants of the jagirdar and held so long as the incum bent did not infringe the privileges found to belong to other classes at the time of formation of the settlement.
Sheo Narain Singh died before the resolution of the Government was communicated to him and he was succeeded by his son Harnarain Singh who withdrew the suit and signed a compromise incorporating the terms of the resolution.
On August 19, 1831, the Secretary to the Government addressed to the Agent of the Governor General at Banaras a letter requesting the Secretary to the Governor General in the Pension department to prepare the necessary documents relating to the grant of a sanad specifying, that parganas "Syudpore Bhettree" were granted on an "istmrar" tenure to Harnarain Singh for his own benefit and of his heirs and successors in perpetuity_on condition of their 217 paying to Government 3/4ths of the Jamma which the revenue officers may in a resettlement of the parganas assess thereon, and that all claims to proprietary right to any village or villages situate in the Raid parganas shall be fully enquired into and in the event of any such claims being established to the satisfaction of the Government, the village or villages forming the subject of the claim shall be considered distinct from and independent of the grant and that a settlement shall be made with the proprietors as in other cases, that the office of Tahsildar shall belong to Harnarain Singh and be hereditary in his family so long as the conditions prescribed for the duties of that office be not infringed, and that in virtue of such office, the separate proprietors shall continue to pay the Jamma which may be assessed on their villages through Harnarain Singh or such other member of the family as the Government may appoint, provided that 1/4th of the Jamma of such separated villages shall be deducted from the payment to be made to the Government in lieu of all remuneration for discharging the duties of Tahsildar, and provided further that until the settlement shall be completed, Harnarain Singh shall continue to pay Jamma to Government.
This proposal calling upon Harnarain Singh to bear all the expenses of the administration and any loss in collection which may occur, departed from the terms of the compromise.
Harnarain Singh refused to accept the offer of a sanad on the terms set out in that letter and also the office of Tahsildar.
In the meanwhile, proceedings for settlement were commenced and on November 16, 1832, the Settlement Officer reported on the conclusion of a summary settlement of the parganas that in 166 mahals, the village zamindars established proprietary rights and the revenue.
assessed upon them was Rs. 1,28.1960.
He further reported that 12 mahals of which the gross revenue was Rs. 22,840 were settled with the jagirdar at a reduced revenue of Rs. 17,130.
Harnarain Singh having refused to undertake 218 the office of Tahsildar on the terms offered by the Government, the Board of Revenue suggested that Harnarain Singh should receive 1/4th of the net collections after deducting from the gross collection the cost of Tahsil establishment thereby giving him an income of Rs. 36,322 8 0.
The Board of Revenue recommended that a sanad be issued under the authority of the Lt. Governor conferring "the pension of Rs. 36,322 8 0 on Babu Harnarain Singh and his heirs in perpetuity".
In a letter dated September 13, 1837, it was recorded that the Lt. Governor of N.W.F. Province was of the view that it would be more conformable with the terms of the agreement if the allowance on Harnarain Singh 's villages (12 mahals) were given in the form of a remission of revenue to the amount of one fourth, the Jamma being fixed at Rs. 17,130 instead of Rs. 22,940 and in the villages settled with zamindars (166 mahals) Harnarain Singh be paid annually a pension of 1/4th of the collections after deducting the Tahsildari charge, and on that footing Rs. 30,612 8 0 be granted to Harnarain Singh.
By letter dated October 19, 1837, from the Secretary to the Lt. Governor, N.W.F. Province, the Secretary to the Board of Revenue was informed that the Lt. Governor had resolved to adopt the Board 's recommendation made in their letter dated September 26, 1837, and to allow Harnarain Singh 1/4th of the not collections after deducting the, expenses of the Tahsildari establishment i. e., Rs. 30, 612 8 0 out of a net Jamma of the villages amounting to Rs. 1,28,960.
About the 12 mahals settled with Hamarain Singh, the allowance was directed to be made in the form of a remission of 1/4th of revenue assessed.
Finally, by letter dated September 14, 1838, from the Secretary to the Sadar Board of Revenue to the Officiating Commissioner 5th Division, Banaras, it was stated that " 'what the Government intended to give is a clear fourth of the net revenue of the Pargana to the Muqurrureedar as pension".
The letter further stated.
219 "2.
The arrangement of paying a portion of that pension by a remission of revenue on certain mauzas settled, as was supposed, directly with the muqurrureedar was proposed by the Board and allowed by Government as a mere matter of convenience to the parties.
Neither Government nor Board intended to alienate any part of the 'muqurrureedar 's pen sion to his son or to any other person.
If the mauzas supposed to have been settled with the muqurrureedar for his own use and behalf, turn out to be held by another person on a distinct interest, it will be necessary, the Board observe to modify the arrangement previously allowed and to collect the, whole assessed revenue of those mauzas as of all others ; and when the same shall have been collected to pay the Muqurrureedar his clear fourth of the net collections.
As however, these mauzas were settled by the Government with the Muqurrureedar his responsibility for the Jumma any portion of revenue which may fall in arrear by person or the arrangement made by him, or of the domes tic differences of his family, must be made good from his pension, before the assignment of the fourth share of the net collections can have effect.
The Board must consider the Muqurrureedar as the owner of these villages during his life.
With his family arrangements they have no concern.
But if it will be his wish that the whole revenue be collected from these villages, and one fourth be returned to him from the treasury instead of receiving tha t fourth in the shape of a remission, he is at liberty to make the election.
He is also the Board remark of course at liberty to cause those mauzas to be 220 transferred or sold in the case of arrear, but his responsibility for the assessed Jumma as fixed by the act of settlement will remain the same.
It is manifest that the recommendations made by the Board of Revenue and the Secretary to the Government in the lengthy correspondence varied from time to time, but in the final letter it appears to have been made clear that an amount equivalent to 1/4th of the net revenue of the 166 mahals be given as pension annually to the jagirdar.
A formal sanad, though contemplated, was, it appears, never issued, but it is common ground that the allowance was paid through the Treasury Office of the Collector of Ghazipor year after year since the year 1838 to Harnarain Singh and his descendants.
This allowance to the jagirdar of "Syudpore Bhettree" was called sometimes in the revenue papers "malikana" sometimes pension" and sometimes a "share in the revenue of the entire pargana '.
In 1951, the U. P. Legislature enacted the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1 of 1951, and relying upon section 6(b) of the Act, the revenue authorities stopped payment of the allowance to the descendants of Harnarain Singh.
The respondent who is a descendant of Harnarain Singh then presented Writ Petition No. 464 of 1954 in the High Court of Judicature at Allahabad for a writ in the nature of mandamus calling upon the State of Uttar Pradesh to forbear from interfering with his right to regular payment of the "pension, allowance or malikana" payable in.
lieu of the hereditary estate of Harnarain Singh in respect of parganas "Syudpore Bhettree" and for an order for payment of the "pension, allowance or malikana" as it fell due.
The respondent claimed inter alia that by virtue of the notification issued under section 4 of the Act, his right to receive the pension did not cease, especially when the scheme of the Act and the principle of assessment did not contemplate payment 221 of compensation in respect of extinction of his right to the allowance, and that in any event, there was no nexus between the pension and the estates sought to be acquired under Act 1 of 1951 or the zamindari: system so tight to be abolished, because the pension was neither land nor Immovable property nor an estate within the meaning of the Act and being merely compensation payable to him in lieu of the rights of his ancestors over the estates comprised within the pargana "Syndpore Bhettree", it was not liable to vest in the State.
The High Court rejected certain preliminary objections to the maintainability of the petition (which objections are riot canvassed in this appeal) and held that the right of .the respondent to receive Rs. 36,330 per annum was not an "estate" within the meaning of the Act and that the right was not acquired under the Act nor did compensation fall to be paid for the same.
In the view of the High Court, under section 6 of the Act, only the rights of the intermediaries in respect of land revenue of the lands comprised in the estate were extinguished and that the rights of third parties under a contract with the State not relating to the rights and privileges of intermediaries, tenants or other persons having interest in land were not effected, and the predecessors in interest of the respondent having been granted an allowance.
annually in lieu of abandonment of the right to realise land revenue, the arrangement did not come to an .end because of the "abolition of the zamindari" under the Act.
The question which falls to be determined in ,this appeal by the State of Uttar Pradesh, is whether the right of the respondent to receive the allowance under the arrangement of the year 1838 was extinguished as a consequence ensuing from the vesting of the "Sudpore Bhettree" parganas in the State of Uttar Pradesh under section 4 of the Act.
By the preamble.
it was recited that the Act was enacted to provide for the abolition of the 222 zamindari system which involved intermediaries between the tiller of the soil and the State and for the acquisition of their rights, title and interest and to reform the Law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
By s.3 (8) which was retrospectively are ended by Act 14 of 1958, , 'estate" was defined as meaning the area included under one entry in any of the registers described in cls.
(a) to (d) and in so far as it relates to a permanent tenure holder in any register described in el.
(e) of section 32 of the U. P. Land Revenue Act 1901 as it stood immediately prior to the coming into force of the Act or subject to the restrictions mentioned with respect to the register described in el.
(e) in any of the registers maintained under any other Act, Rule, Regulation or Order relating to the preparation or maintenance of record of rights in force at any time and included share in or of an estate. " 'Intermediary" was defined as meaning with reference to any estate, a proprietor, under proprie tor, sub proprietor, the kadar, permanent lessees in Avadh and permanent tenure holder of such estate or part thereof.
"Land" was defined as meaning,, except in sections 143 and 144, as land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which included pisciculture and poultry farming.
By s.4, provision was made for vesting of estates in the State of Uttar Pradesh.
By sub s.(1), it was enacted, insofar as it is material, that the State Government may by notification declare that as from a date to.
be specified, all estates situate in Uttar Pradesh shall vest in the State and from the date so specified, all such estates shall stand transferred to and vest, except as provided in the Act, in the State free from all encumbrances.
Section 6 provided for the consequences of an estate in the State.
On the publication of a notification under section 4 of the Act, notwithstanding anything contained in any contract or document or in any other law for the time being in force and, nave as 223 otherwise provided in the Act, the consequences set forth in cls.(a) to (j) of section 6 were to ensue in the area to which the notification related.
By cl.(a), all rights, title and interest of intermediaries in every estate in such area and in the sub soil in such estate including rights, if any, in mines and minerals ceased and vested in the State.
Clause (b) on which the dispute primarily turns, provided : "All grants and confirmations of title of or to land in any estate so acquired, or of or to any right or privilege in respect of such land or its land revenue shall, whether liable to resumption or not determine." By cl.
(c), all rents, local rates and sayar in respect of any estate or holding therein for any period after the date of vesting and which, but for the acquisition, would be payable to an intermediary, vested in and became payable to the State Government and not to the intermediary ; and where under an agreement or contract made before the date of vesting any rent, cess, local rate or sayar for any period after that date had been paid to or compounded or released by an intermediary, the same, notwithstanding the agreement or the contract, became recoverable by the State Government from the intermediary.
By cls.
(d) and (e), liability of intermediaries in respect of any estate incurred for any period prior to the date of vesting remained enforceable.
By cl.
(f), the interest of intermediaries in any estate was exempt, from attachment or sale in execution of any decree or other process of any court and any attachment existing at the date of vesting or any order for Attachment passed before such date, subject to the provisions of section 73 of the , ceased to be in force.
By cl.
(a), mortgages with possession on any estate or part of an estate on the date immediately preceding the date of vesting were to be deemed to have been substituted by simple mortgages without prejudice to the rights 224 of the State Government '.
By el.
(h), no claim or liability enforceable or incurred before the date of vesting by or against an intermediary for any money charged on or secured by a mortgage of an estate or part thereof was, except as provided in 73 of the , to be enforceable against his interest, in the estate.
By el.
(i), all suits and proceedings of the nature to be prescribed pending in any court at the date of vesting and. ' all proceedings upto any, decree or order passed in any such suitor proceeding previous to the, date of vesting were stayed.
By cl.
(j), all mahals and their subdivisions existing on the date immediately preceding the date of vesting and all engagements for the payment of land revenue or rent by a proprietor, under proprietor, sub proprietor co sharer, or lambardar as such determined and ceased to be in force.
Section 37 to 40 of the Act provided for the preparation of the Compensation Assessment Roll of intermediaries as respects mahals and for preparation of gross assets of mahals.
It was on this Compensation Assessment Roll that the compensation payable for loss of interest of the intermediaries was to be computed and paid.
Section 42 provided for computation of gross assets of an intermediary and section 44 for computation of the net assets of an intermediary.
Section 45 provided that in the case of proprietors to whom section 78 of the U.P. Land Revenue Act, 1901 applied or who were as.
signers of land revenue whose.
names were recorded in the record of rights, maintained under cls.
(a) to (d) of section 32 of the said Act, under proprietors, sub proprietors, permanent tenure holders and, permanent lessees in Avadh, the provisions of sections 39 to 44 were to apply subject to such incidental changes and modifications as may he Prescribed and the gross assets and net assets of such intermediaries were to be computed accordingly. ' 225 By the definition, in section 3 (8) of the Act an "estate" is an area included under one entry in the registers described in cls.(a) to (d) of the Land Revenue Act.
The High Court upheld the contention of the respondent that allowance paid to him could not be regarded as an "estate".
That view is not challenged before this Court by counsel for the State of Uttar Pradesh.
The right to receive the allowance of Rs. 30,612 8 0 from the Government under the arrangement cannot, in the absence of an express provision to that effect, be called "an area included under one entry in any of the registers" described in the various clauses.
The first part of section 6(b) does not therefore assist the claim made by the State.
But of the 12 mahals the respondent was a proprietor : the land of the mahals was "estate" within the meaning of section 3(8) of the Act and by section 4, the right of the respondent in that estate stood vested in and transferred to the State.
It is true that by the arrangement of the year 1838, confirming the earlier compromise, remission of 25% as granted to the respondent 's predecessors in respect of payment of land revenue.
If the right of the respondent in the 12 mahals ceased, the right to remission could not be converted into a positive right to receive the amount thereof, notwithstanding the extinction of his right in those 12 mahals.
The right to remission of land revenue was a right in respect of land revenue in the estate which stood vested in the State.
The letters dated September 13, 1837, October 19, 1837 and June 15, 1838 make it abundantly clear that the difference of Rs. 5710 between the amount originally assessed and the Jamma recoverable was to be remission of revenue.
The right of the respondent to the 12 mahals was transferred to the State by virtue of the notification under section 4, and the consequences set out in sub section
(b) of section 6 relating to those 12 mahals ensued.
We are therefore unable to agree with the 226 High Court that for the amount of Rs. 6710 which was treated as remissions the respondent was entitled to obtain relief on the footing that right was not affected by the issue of the notification under section 4 of the Act.
The claim of the respondent in respect of the allowance granted as consideration for abandonment of the right to 166 mahals rests on a firmer ground.
It is true that this allowance ",as computed as 1/4th share of the revenue assessed on the 166 mahals.
But the respondent under the arrangement has no interest in the land of the 166 mahals or in the land revenue payable in respect thereof.
By the order of the Government, the right of Sheo Narain Singh to the entire pargana "Syudpore Bhettree" was resumed.
Sheo Narain Singh challenged the authority of the Government to resume his interest in the Jagir and dispute pending in the civil court was compromised on the terms which were finalised in the year 1838 whereby Harnaram Singh and his descendants were given an allowance in amount equal to 1/4th of the net revenue of the 166 mahals.
Because the annual allowance is equal to a fourth share of the net revenue of the mahals, the right of the respondent does not acquire the character of an interest in land or in land revenue.
Under the arrangement, the entire land revenue was to be collected by the Government and in the collection Harnarain Singh and his descendants had no interest or obligation.
As a consideration for relinquishing the right to the land and the revenue thereof, the respondent and his ancestors were given an allowance of Rs. 30,612 13 0.
The allowance was in a sense related to the land revenue assessed on the land, i.e., it was fixed as a percentage of the land revenue : but the percentage was merely a measure, and indicated the source of the right in lieu of which the allowance was given.
The amount is described as "pension" in the letters dated September 14, 1838, July 7, 1837 and June 15,1838.
The words used in el.
(b) are undoubtedly wide 227 any right to a grant which has relation to land or land revenue would be determined by the operation of that clause.
But the allowance to Harnarain Singh was not in respect of land or its revenue; it was granted as consideration for settlement of a claim litigated in a civil court relating to that land.
The primary object of the legislature, as set out in the preamble of the Act, was to abolish the zamindari system and to acquire the rights of the intermediaries and to pay compensation for acquisition of those rights.
By section 4, estates in the area for which a notification was issued, vest in the State free from all encumbrances and as a consequence of vesting, the rights of intermediaries, but not their preexisting liabilities are extinguished as from the date of vesting.
Clauses (a),(c) to (f) and (b) expressly deal with the rights and obligations of interme diaries, and the interaction thereon of the notification of vesting.
Clause (g) deals with the derivative rights of mortgagees of estates.
By el.
(i), the mahals and sub divisions are obliterated, and the engagements for payment of land revenue or rent by proprietors, under proprietors, sub proprietors, co sharers and sub sharers cease.
There is no express reference in section 6 (b) to the right of intermediaries ; by the first part of that clause, the grant and confirmation of title to land in an estate are determined and by the second part, the rights and privileges in land or in the land revenue in the estates are determined.
The key words of the second part of the clause are "in respect of" indicating a direct connection between a right or privilege and land in an estate or its revenue.
The intention of the legislature is manifestly to extinguish estates and all derivative rights in estates and to extinguish the interest of intermediaries between the State and the tiller of the soil.
If the grant or confirmation of title is in respect of a right or privilege to land in an estate or its revenue, it must determine under cl.
(b) ; but a right to receive an allowance which is 228 granted in consideration of extinction of a right to land or land revenue does not, by the force of cl.
(b) determine.
The allowance has not the quality of land or land revenue : its quantum only was measured by equating it with a fourth share in the net revenue of a part of land which was the subject matter of the suit in which the arrangement for payment of the allowance was made.
Absence of a provision in the Act for payment of compensation for a right such as the one claimed by the respondent strongly supports the plea that the right is not intended to be acquired or extinguished.
Section 37 to 44 deal with the assessment of compensation to be paid to intermediaries.
Compensation Assessment Roll of intermediaries in respect of the mahals has to be prepared and detailed instructions in that behalf are contained in sections 39 to 44.
By section 45, in computing the gross assets and net assets of proprietors who are assignees of land revenue and of under proprietors, sub proprietors, permanent tenure holders and permanent lessees in Avadh sections 39 to 44 of the Act are applicable subject to such modifications and incidental changes as may be prescribed.
It is common ground that s.78 of the U. P. Land Revenue Act has no application to "Syudpore Bhettree" pargana.
To proprietors who are assignees of land revenue and whose names are recorded in the record of rights maintained under s.32 cls.
(a) to (d), the provisions of ss 39 to 44 may undoubtedly apply subject to modifications as may be prescribed, and computation of their gross and net assets may be made accordingly.
But the respondent is not an assignee of land revenue whose name is so recorded in the record of rights nor is he qua the allowance an under proprietor, sub proprietor, permanent tenure holder or permanent lessee.
Section 45 is a machinery provision : it does not purport to extend the field of s.6 by prescribing consequences which are not incorporated in that section.
There is in s.45 nothing to warrant the submission of counsel for the State that rights of a 229 land holder to receive allowances from the Government are extinguished even without compensation, merely because he was an assignee of land revenue of some land or was a proprietor, sub proprietor, permanent tenure holder or permanent lessee in respect of other land in Avadh.
The scheme for payment of compensation prescribed by sections 39 to 44 is extended to amongst others, proprietors of land who are assignees of land revenue whose names are recorded in the record of rights maintained under cls.
(a) to (d) of s.32 : but, a person receiving an allowance from the State of the character received by the respondent is not a proprietor who is an assignee of land revenue, and in any event, if his name is not entered in the revenue record under cls.
(a) to (d) of s.32, the provisions relating to computation of gross and net assets will not apply to him.
Absence of a provision in the Act for awarding compensation to persons holding interest such as the respondent has strongly supports the view that such interest was not to be extinguished by the operation of s.6(b) of Act 1 of 1951.
We accordingly hold that the High Court was right in granting the application preferred by the respondent insofar as it related to the allowance of Rs. 30,612 13 0 granted as a consideration for extinction of the right of Harnarain Singh to 166 mahals : but for reasons already stated, we are unable to agree with the High Court that the respondent was entitled to receive in respect of the 12 mahals the land revenue which was remitted.
The order passed by the High Court will therefore be modified and the petition of the respondent in so far as it deals with remission of land revenue in respect of the 12 mahals of "Syudpore Bhettree" will stand dismissed.
The order of the High Court in respect of the allowance of Rs. 30,612 13 0 will stand confirmed.
Subject to the above modifications, the appeal will stand dismissed with costs.
Appeal dismissed.
| The respondents, a joint Hindu family and evacuees from Pakistan, were allotted certain lands by the Custodian of Evacuee Property.
A draft scheme for consolidation of holdings was framed and published by the Consolidation Officer in pursuance of a notification by the State Government under section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
The scheme under the directions of the State Government and contrary to the Act substituted lands of a lesser value for those already allotted to the respondents.
Objections filed by the respondents were rejected by the Consolidation Officer and the scheme was confirmed by the Settlement Commissioner.
Before the confirmation, the Central Govern ment by a notification under section 12 of the , acquired all evacuee properties and after the said confirmation issued a sand conferring proprietary rights of the said lands on the respondents.
The respondents bad moved the High Court under article 226 of the Constitution before the issue of the sanad but the matter was finally disposed of by the High Court thereafter by setting aside the said scheme and directing the Consolidation Officer to dispose of the matter according to law.
Held, that the notification issued by the Central Government under section 12 of the , did not put an end to the rights the respondents had in the lands originally allotted to them by the Custodian and they had the right to move the High Court under article 226 of the Constitution.
Sections 10 and 12 of the said Act read with r. 14(6) of the Rules framed under the , made it amply clear that the respondents held a quasi permanent tenure in the said lands and as such had a valuable right therein.
Such right continued while they remained in possession and the lands remained vested in the Central Government and with the grant of the sanad the limited right they had in the lands became a full fledged right of property.
Amar Singh vs Custodian, Evacuee Property, Punjab, [1957] S.C.R. 801, referred to.
The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, did not empower the Consolidation Officer to take away an allottee 's lands without giving him other lands of equal value or paying compensation nor did the Act empower the State Government either to do so in any way or to direct the Consolidation Officer as to how he should exercise his powers thereunder.
Since, in the instant case, the respondents ' lands had admittedly been substituted by lands of less value and no compensation had been paid to them, the High Court was right in setting aside the order confirming the scheme. 713
|
ivil Appeal Nos.
1694 1709 of 1991.
From the Judgment and Order ' dated 23.1.1990 of the A.P. Administrative Tribunal, Andhra Pradesh in R.P. Nos.
13986/89, 24045 50/89, 25091/89, 1027 & 2111/.89, 28925 26/89, 28929 to 31/89 and O.A. No. 1918 of 1990.
K. Madhava Reddy and G. Prabhakar for the Appellants.
M.K. Ramamurthi, section Markandeya and Ms. C. Markandeya for the Respondents.
The following Order of the Court was delivered: This is an appeal by the State Government of Andhra Pradesh by special leave: Challenge is to the order of the State Administrative Tribunal directing the benefit of the Government Order of 18.11.1981 to be extended to selection of the Sub Inspectors of Police which is done through the State level Recruitment Board.
The Government Order which has been extracted in the Order of the Tribunal reads thus: "Notwithstanding anything in the Andhra Pra desh State and Subordinate Service Rules or the Special Rules, candidates seeking appoint ment of all the non gazetted posts of all services, and seeking eligibility in general educational test who have obtained the basic educational qualifications prescribed for direct recruitment eligibility for promotion in the special rules governing such posts, through Telugu medium, shall be given weight age in the matter of selection to such posts by awarding them 5% of the total aggregate maximum marks of the relevant competitive examination held by the Andhra Pradesh Public Service Commission for recruitment acquiring eligibility to such posts.
566 "Having regard to the avowed policy of the Government to introduce Telugu progressively in the State in the coming years and as Telugu has been 'introduced as official language at Directorage level and also in the lower courts in certain Districts of the State and so as to give preference to candidates who have ob tained the basic educational qualification through the medium of Telugu, Government have after careful examination decided in consulta tion with the Andhra Pradesh Public Service Commission that such candidates to give weightage of 5% of the total aggregate maximum marks of all the competitive examinations of the Andhra Pradesh Public Service Commission for recruitment to all the non gazetted poStS of all services.
There is no dispute that the Order in its own terms applies to selection carried on through the State Public Service Commission; nor is there any dispute that the selection of Sub Inspectors, for the relevant period was being carried on by a body other than the State Public Service Commission.
The Tribunal observed as follows: "We cannot the rule too literally and defeat the object and purpose with which it has been made.
If the object and purpose are kept in view, then ' we have no hesitation m holding that it applies to all selections irrespective of the body that makes selections in the State.
We see no merit in the literal con struction suggested by Sri Sagar.
" We are told that the validity of the Government Notifi cation under challenge on the ground that the Government have no authority to make such a direction and that chal lenge is in an independent petition pending disposal before this Court.
Since this petition is not one challenging the Notification but seeking its extension to areas not covered by the Notification in terms, disposal of this petition has no bearing on the petition which challenges the Notifica tion.
The State Government is the authority to take a policy decision.
Whether the decision is tenable or not in law, as we have just pointed out, is not to be decided here.
But since Government in their wisdom have specifically confined the application of the Notification to recruitment through the State Public Service Commission, we have not been 567 able to appreciate the decision of the Tribunal that it was also available to be extended to selection through bodies other than the State Public Service Commission.
Mr. Ramamurti appearing in.
support of the respondents ' cause has pointed out that if the Government Notification is confined to selection through the State Public Service CommissiOn, the Government Notification would be hit by Article 14 of the Constitution.
Therefore, according to Mr. Ramamurti, it was open to the Tribunal to read down the requirement by saying that the benefit of the Notification would be applicable to all categories of selection.
We have not been able to agree with Mr. Ramamurti that when the Notification is specific and is intended to apply to a specified group of cases for selection, it would be open to the Tribunal to extend its application beyond what has been clearly.
Specified.
It is one matter to say that the Notification applied in a limited way may be hit by law; it is another to say that contrary to the restriction im posed, the Tribunal would allow the Notification to have general application.
We are inclined to agree with Mr. Madhava Reddy for the State that the Tribunal exceeded its jurisdiction in lifting the restriction imposed.
by the, Government in the matter of benefit of 5% of total aggregate marks to those candidates who wrote their papers in Telugu language.
The appeal is allowed and the order of the Tribu nal stands vacated.
No costs. ' T.N.A. Appeal al lowed.
| In the petition filed under Article 32 of the Constitution of India, the petitioners teachers, employed in the schools run by the respondents, controlled by the Defence Department of the Government of India, contended that the action of the respondents in retiring them at the age of 58 years, whereas retaining similarly situated teachers working in other departments upto the age of 60 years was discriminatory and violative of Articles 14 and 16 of the Constitution.
The respondents filed the Office Memorandum dated 10.3.1989 issued by the Ministry of Personnel, wherein it was stated that the age of retirement of the teachers working in all the Departments and Organisations was uniformly fixed at 58 years.
Dismissing the petition, this Court, HELD: With effect from April 1, 1989 the age of superannuation of all teachers working in Central Government Departments and Organisations including Union Territories has been uniformly fixed at 58 years.
[838F]
|
135 of 1950.
Application under article 32 of the Constitution for a writ in the nature of a writ of certiorari and prohibition.
Dr. Tek Chand (Hardayal Hardy and Jindra Lal, with him) for the petitioner.
M.C. Setalvad, Attorney.
General for India, (section M. Sikri, with him) for the respondent.
january 12.
This is said to be a test case, for, on its decision, we are told, depend the rights of numerous other persons whose interests are similar to those of the petitioner.
There is no serious controversy as to the facts material for the purposes of this application.
They are shortly as follows: On May 5, 1948, the then Rulers of eight Punjab States including.
Patiala and Nabha with the concurrence and guarantee of the Government of India entered into a covenant agreeing to unite and integrate their territories in one State with a common executive, legislature and judiciary by the name of Patiala and East Punjab States Union, hereinaf ter compendiously referred to as the Pepsu.
By article III (6) of the covenant the then Ruler of Patiala became the first President or Raj Pramukh of the Council of Rulers and he is to hold the office during his lifetime.
Article VI of the covenant is as follows : "(1) The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh, and thereupon, (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 130 the Union and shall thereafter be exercisable only as pro vided by this Covenant or by the Constitution to be framed thereunder; (b) all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it; (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union, and (d) the military forces, if any, of the Covenanting State shall become the military forces of the Union.
" Article X provides for the formation of a Constituent Assembly to frame a constitution of a unitary type for the Union within the framework of the Covenant and the Constitu tion of India.
This Constituent Assembly was also to func tion as the interim Legislalature of the Union until an elected legislature came into being.
The proviso to clause (2) of that Article runs as follows : "Provided that until a Constitution framed by the Con stituent Assembly comes into operation after receiving the assent of the Raj Pramukh, the Raj Pramukh shall have power to make and promulgate Ordinances for the peace and good government of the Union or any part thereof, and any Ordi nance so made shall, for the space of not more than six months from its promulgation have the like force of law as an Act passed by the Constituent Assembly;but any such Ordinance may be controlled or superseded by any such Act.
" This Union was inaugurated on July 15, 1948, and the Raj Pramukh thereafter took over the administration of the different Covenanting States.
The Administration of Nabha State was taken over by the Raj Pramukh on August 20, 1948.
On the same day the Raj Pramukh, in exercise of the powers vested in him, promulgated an Ordinance (No. 1 of 2005) called the Patiala and East Punjab States Union (Administra tion) 131 Ordinance, 2005.
The following provisions of this Ordi nance are relevant for our purpose: "1.
(2) It shall extend to the territories included in the Covenanting States on and from the date on which the administration of any of the said State or States has been or is made over to the Raj Pramukh.
* * 3.
As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all laws, Ordinances, Acts, Rules, Regulations, Notifica tions, Hidayats and Firrnans i Shahi having force of law in Patiala State on the date of commencement of this Ordinance shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such covenanting State immediately before that date shall be repealed: Provided that proceedings of any nature whatsoever pending on such date in the Courts or offices of any such Covenanting State shall, notwithstanding anything contained in this Ordinance or any other Ordinance, be disposed of in accordance with the laws governing such proceedings in force for the time being m any such Covenanting State.
" Section 6 provides for the adaptation of the laws etc.
enforced under section 3 and, amongst other things, any reference in these laws etc.
to the Patiala State and the like was to be construed as a reference to the State of the Union.
A notification (No.35 dated 27 5 05/11 9 1948) was issued over the signature of the Revenue Secretary notifying that the Patiala Income tax Act of 2001 and the Rules there under had come into force in the various Covenanting States from August 20, 1948, thereby repealing the law or laws in force in that behalf in those States before that date, except as to pending proceedings.
It may be mentioned here that prior to that date there was no law in the Nabha State imposing income tax on the subjects of that State.
On November 14, 1948, the Commissioner of Income tax issued a Notification (No. 4, dated 132 29 7 2005) intimating that persons belonging to the Cove nanting States of Nabha and Nalagarh would be assessed to income tax under the Patiala Income Tax Act, 2001.
It was mentioned that persons of those States whose income reached the taxable limit ' 'should henceforward keep regular and proper accounts for purposes of audit by the Income Tax Department" on February 2, 1949, Ordinance 1 of 2005 was repealed and replaced by Ordinance No. XVI of 2005 promul gated by the Raj Pramukh and called the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2006.
Section 3 (1) runs as follows: "3.
(1) As from the appointed day, all laws and rules, regulations, bye laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply mutatis mutandis to the territories of the Union and all laws in force in the other Covenanting States immediately before that day shall cease to have effect; Provided that all suits, appeals, revisions applica tions, reviews, executions and other proceedings, or any of them, whether Civil or Criminal or Revenue, pending in the Courts and before authorities of any Covenanting States shall, notwithstanding anything contained in this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immedi ately before the appointed day.
" By section 2 (a) the "appointed day" was defined as meaning the 5th day of Bhadon, 2005, corresponding to August 20, 1948.
There was a section providing for adaptation similar to section 6 of the Ordinance 1 of 2005.
There was another Ordinance to which reference has to be made, namely, Ordinance No. 1 of 2006 called the Finance Ordinance promul gated on April 13, 1949, which came into force on that very date.
Section 5 of that Ordinance introduced several amend ments to the Patiala Income Tax Act, 2001.
It recast 133 sections 3 and 34 of that Act and introduced a new section as section 23B. Section 6 of that Ordinance runs thus: "6.
For the assessment year beginning on the 1st day of Baisakh, 2006, that is to say, in respect of the accounting the income, profits and gains of the previous year ending on the last day of Chet, 2005, (a) income tax shall be charged at the rates specified in Part I of the Second Schedule to this Ordinance, and (b) rates of super tax shall, for the purposes of sec tion 55 of the Patiala Income Tax Act, 2001, be specified in Part II of the Second Schedule to this Ordinance.
" It is in this setting that the facts leading to the present petition have to be considered.
The petitioner is a resident of Ateli in the district of Mohindargarh now in Pepsu but which formerly formed part of the Nabha State.
The petitioner has been carrying on his business at Ateli for a number of years under the ' name and style of Raghunath Rai Ram Parshad.
He never paid any income tax as no such tax was imposed by any law in the Nabha State.
On October '20, 1949, the petitioner was served with a notice under sections 22(2) and 88 of the Patiala Income Tax Act, 2001, requiring him to submit a return for the Income Tax year 2006 (13 4 1949 to 12 4 1950) disclosing his income during the previous year (13 4 1948 to 12 4 1949).
The petitioner, on December 4, 1949, filed his return for the year 2006 and on February 14, 1950, he was assessed to income tax.
On May 23, 1950, the petitioner received a notice under section 34 calling upon him to file his return for the year ending the last day of Chet 2005, i.e., for the year 13 4 1948 to 12 4 1949.
In this return he had to specify his income of the previous year, namely, 2004 (i.e., 13 4 1947 to 12 4 1948).
It ap pears that the petitioner along with other assessees of Ateli and Kanina submitted a petition before the Income Tax Officer on July 9, 1950, asking him not to 134 proceed with the assessment for the year 2005 but on July 13, 1950, the Income Tax Officer assessed him to the best of his judgment under section 34(4) read with section 22(4) of the Income Tax Act.
The petitioner along with other asses sees similarly situated moved the Income Tax Commissioner and the Central Board of Revenue, New Delhi, but without any success.
No formal appeal under the Patiala Income Tax Act appears to have been filed by the petitioner against assess ments for either of the two years 2005 and 2006.
On August 10, 1950, the petitioner filed his present petition before this Court under article 32 of the Constitution praying that a writ in the nature of a writ of certiorari be issued for quashing the assessments of the petitioner 's income accrued in the years 2004 and 2005 and other ancillary reliefs.
During the pendency of this petition the income tax authori ties have issued a notice under section 46 intimating that penalty will be imposed if the tax was not paid up.
The contention of the petitioner in the first place is that he has been denied the fundamental right of equality before the law and the equal protection of the laws guaran teed to him by article 14 of the Constitution.
His griev ances are formulated in paragraphs 10 and 11 of his peti tion.
It is said that while the people of Kapurthala which is included in Pepsu have been asked to pay income tax for the period prior to August 20, 1948, at the old rate fixed by the Kapurthala Income Tax Act which was lower than the rate fixed by the Patiala Income Tax Act, 2001, the people of Nabha who had not to pay any income tax prior to August 20, 1948, at all have been made liable to pay at the higher Patiala rate and that such discrimination offends against the provisions of article 14.
This charge is refuted by paragraph 10 of the affidavit of Sardar Gurbax Singh, the Additional Director of Inspection (income Tax), New Delhi, who was formerly the Commissioner of Income Tax, Punjab and Pepsu, which has been filed in opposition to the present petition.
It is there stated that for the assessment year 2005, in Kapurthala the assessees whose cases were pending on 135 August 20, 1948, were assessed under the Kapurthala Income Tax Act at rates fixed thereunder but that for the assess ment year 2006 the provisions of the Patiala Income Tax Act and the rates prescribed thereunder were uniformly applied in all areas of the Pepsu, including Kapurthala This alle gation which is not denied in the affidavit filed by the petitioner in reply must be taken as correct.
The assess ment of Kapurthala assessees for the year 2005 at the old Kapurthala rate was obviously made under the proviso to section 3 of Ordinance No. 1 of 2005, which was reproduced in the proviso to section 3(1)of the Ordinance No. XVI of 2006 and both of which required all pending proceedings to be completed according to the law applicable to those pro ceedings when they were initiated.
No case of assessment was pending as against any Nabha assessee on August 20, 1948, for there was no Income Tax Act in Nabha prior to that date and, therefore, there could be no occasion for completing any pending proceedings against any of such assessees.
In the premises, there can be no grievance by them on the score of discrimination.
The discrimination, if any, was not brought about by the two Ordinances, but by the circumstance that there was no Income Tax Act in Nabha and consequently there was no case of assessment pending against any Nabha assessees.
In any case the provision that pending proceed ings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings commenced is a reasonable law rounded upon a reasonable classification of the assessees which is permis sible under the equal protection clause and to which no exception can be taken.
In our opinion the grievance of the alleged infringement of fundamental right under Article 14 is not well founded at all.
Dr. Tek Chand appearing in support of the petition next contends that the administration of Nabha State having been taken over by the Raj Pramukh only on August 20, 1948, and the Patiala law including the Patiala Income Tax Act, 2001, having been brought 136 into operation on and from August 20, 1948, the assessment of the tax on the petitioner 's income which accrued prior to August 20, 1948, was wholly illegal and not authorised by the said Ordinances and the State by insisting on collecting the tax so illegally assessed was threatening to invade the petitioner 's fundamental right to property guaranteed by article 31(1) of the Constitution.
Article 31(1) runs as follows: "(1) No person shall be deprived of his property save by authority of law.
" It will be noticed that clause (1) reproduces subsection (1) of section 299 of the Government of India Act, 1935, without the words "in British India.
" Reference has 'next to be made to article 265 which is in Part XII, Chapter I, dealing with "Finance." That article provides that no tax shall be levied or collected except by authority of law.
There 'was no similar provision in the corresponding chapter of the Government of India Act, 1935.
If collection of taxes amounts to deprivation of property within the meaning of article 31(1), then there was no point in making a sepa rate provision again as has been made in article 265.
It, therefore, follows that clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise article 265 becomes wholly redundant.
In the United States of America the power of taxation is regarded as distinct from the exercise of police power or eminent domain.
Our Constitution evidently has also treated taxation as distinct from compulsory acquisition of property and has made inde pendent provision giving protection against taxation save by authority of law.
When Dr. Tek Chand was asked if that was not the correct position, he did ,not advance any cogent or convincing answer to refute the conclusion put to him.
In our opinion, the protection against imposition and collec tion of taxes save by authority of law directly comes from article 265, and is not secured by clause (1) of article 31.
Article 265, 137 not being in Chapter IIi of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32.
It is not our purpose to say that the right secured by article 265 may not be enforced.
It may certainly be enforced by adopting proper proceedings.
All that we wish to state is that this application in so far as it purports to be rounded on arti cle 32 read with article 31(1) to this Court is misconceived and must fail.
The whole of Dr. Tek Chand 's argument was rounded on the basis that protection against imposition and collection of taxes save by authority of law was guaranteed by article 31(1) and his endeavour was to establish that the Pepsu Ordinances could not, in law, and did not, on a correct interpretation of them, impose any income tax retrospective ly; that the Income Tax Officer on an erroneous view of the law had wrongly assessed the tax on income accrued prior to August 20, 1948, and that consequently the petitioner was being threatened with deprivation of property otherwise than by authority of law.
In the view we have taken, namely, that the protection against imposition or collection of taxes save by authority of law is secured by article 265 and not by article 31(1), the questions urged by Dr. Tek Chand do not really arise and it is not necessary to express any opinion on them on this application.
Those questions can only arise in appropriate proceedings and not on an applica tion under article 32.
In our judgment this application fails on the simple ground that no fundamental right of the petitioner has been infringed either under article 14 or under article 31(1) and we accordingly dismiss the petition with costs.
Petition dismissed.
| Section 3 (1) of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance (No. XVI of 2005) which came into force on February 2, 1949, and re enacted section 3 of an earlier Ordinance which was in force from August 20, 1948, provided that as from the appointed day (i.e., August 20, 1948) all laws in force in the Patiala State shall apply muutatis mutandis to 17 128 the territories of the said Union, provided that all pro ceedings pending before courts and other authorities of any of the Covenanting States shall be disposed of in accordance with the laws governing such proeeedings in force in such Covenanting State immediately before August 20, 1948.
In one of the Covenanting States, viz., Kapurthala, there was a law of income tax in force on the said date, the rate of tax payable under which was lower than that payable under the Patiala Income tax Act, and in another Covenanting State, Nabha, there was no law of income tax at all.
For the ac counting year ending April 12, 1948, assessees of Kapurthala State were assessed at the lower rates fixed by the Kapur thala Income tax Act, in accordance with the proviso in section 3 of the Ordinance relating to pending proceedings, and the assessees of Nabha were assessed at the higher rates fixed by the Patiala Act as there was no income tax law in Nabha on August 20, 1948, and no income tax proceedings were therefore pending in Nabha.
The petitioner who was an asses see residing in Nabha and who was assessed under the Patiala Act applied under article 32 of the Constitution for a writ in the nature of a writ of certiorari quashing the assessment on the ground (i) that he had been denied the fundamental right of equality before the law and equal protection of the laws guaranteed by article 14 of the Constitution inasmuch as he was assessed at a higher rate than that at which asses sees of Kapurthala were assessed, (ii) that, as the Ordi nance bringing the Patiala Income tax Act into force in Nabha was enacted only on August 20, 1948, it cannot operate retrospectively and authorise the levy of tax on income which had accrued in the year ending April 12, 1948, and therefore he was threatened with infringement of the funda mental right guaranteed by article 31 (1) of the Constitution that no one shall be deprived of his property save under authority of law: Held, (i) that the discrimination, if any, between the assessees of Kapurthala and Nabha was not brought about by the Ordinance but by the circumstance that there was no income tax law in Nabha and consequently there was no case of assessment pending against any Nabha assessees; and in any case the provision that pending proceedings should be concluded according to the applicable at the time when the right is or liabilities accrued and the proceedings com menced, was a reasonable law rounded upon reasonable classi fication of the assessees which is permissible under the equal protection clause; (ii) that, as there is a special provision in article 965 of the Constitution that no tax shall be levied or collected except by authority of law, cl.
(1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by article 265 not a right conferred by Part III of the Constitution, it could not be enforced under article 129
|
Civil Appeal No. 3677 of 1984.
From the Judgment and Order dated 17.5.1982 of the Delhi High Court in F.A. No. 30 of 1975.
P.P. Malhotra and N.K. Sharma for the Appellant.
O.P. Goyal, Ms. Sunita Vasudeva and R.C. Verma for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been filed by the National Insurance Company Ltd., New Delhi, against a judgment of the Delhi High Court in an appeal under Section 110 D of the (hereinafter referred to as the 'Act ').
Necessary facts may be stated herein in a nutshell.
Shri Jugal Kishore, Respondent No. 1 was, on 15th June, 1969, driving a threewheeler scooter when he met with an accident with bus No. DLP 913 3699, driven by Shri Rai Singh, Respondent No. 2 and owned by M/s. Delhi Janata Co operative Transport Society Limited, Respondent No. 3, He sustained injuries consequent upon which he made a claim for compensation before the Motor Accident Claims Tribunal, Delhi against Respondent Nos. 2 and 3 and the appellant which was the insurer of the bus aforesaid.
The claim of Respondent No. 1 was contested by the appellant and also by Respondent No. 3 but proceeded ex parte against Respondent No. 2.
The Tribunal awarded compensation in the sum of Rs.10.000 recoverable jointly and severally from the appellant and Respondent No. 3.
Aggrieved by the award of the Tribunal Respondent No. 1 preferred an appeal before the High Court of Delhi and asserted that the amount of compensation awarded by the Tribunal was inadequate.
His appeal was allowed by the High Court and the award was modified.
The High Court awarded a sum of Rs. 1,00,000 as compensation to Respondent No. 1 with interest at 9 per cent per annum from the date of institution of the claim till realisation with costs against the driver as well as the owner of the bus as also against the appellant, Insurance Company.
Before granting special leave this Court required the appellant to deposit Rs. 1,00,000 namely the amount of compensation awarded by the High Court and permitted Respondent No. 1 to withdraw the same.
Special leave was granted on 14th September, 1984 by the following order of this Court.
"Under the orders of this Court the appellant has deposited Rs. One lac, which is the amount of compensation awarded to the claimants.
The claimants have withdrawn the amount without furnishing security.
Special leave granted on condition that in the event of reversal of the decision of the High Court, the said amount shall not be refunded by the claimants.
Stay of further execution of the award confirmed.
" It has been urged by the learned counsel for the appellant that in view of the statutory provision contained in this behalf in clause (b) of sub section (2) of Section 95 of the Act as it stood on the date of accident namely 15th June, 1969 which happens to be prior to 2nd March, 1970, the date of commencement of Amending Act 56 of 1969, no award in excess of Rs.20,000 could have been made against the appellant.
Before dealing with the submission we may point out that the policy under which the bus aforesaid was insured had not been 914 filed either before the Tribunal or before the High Court.
A photostat copy of the policy has, however, been filed in this Court and learned counsel for the respondents did not have objection in the same being admitted in evidence.
Clause (b) of sub section (2) of Section 95 of the Act as it stood at the relevant time reads as under: "95.
(1) . . . (2) Subject to the proviso to sub section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely: (a) . . . . (b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver; (c) . . .
On the plain language of the aforesaid clause (b) which applies to the instant case it is apparent that the liability of the appellant could not be in excess of Rs.20,000.
Learned counsel for the respondents, however, urged that notwithstanding the provision contained in this behalf in clause (b) aforesaid it was open to the insurer to take a policy covering a higher risk than contemplated by the aforesaid clause (b) and consequently the said clause had to be read subject to the terms of the policy which was taken in the instant case.
We find substance in this submission in view of the decision of this Court in Pushpabai Purshottam Udeshi and others vs M/s Ranjit Ginning and Pressing Co. and another, where it was held that the insurer can always take policies covering risks which are not covered by the re 915 quirements of Section 95 of the Act.
We have accordingly perused the photostat copy of the policy to ascertain whether risk for any amount higher than the amount of Rs.20,000 contemplated by clause (b) aforesaid was covered.
Our attention was invited by learned counsel for the respondents to the circumstance that at the right hand corner on the top of page 1 of the policy the words "COMMERCIAL VEHICLE COMPREHENSIVE" were printed.
On this basis and on the basis that the premium paid was higher than the premium of an "act only" policy it was urged by the learned counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs.20,000 only.
We find it difficult to accept this submission.
Even though it is not permissible to use a vehicle unless it is covered at least under an "act only" policy it is not obligatory for the owner of a vehicle to get it comprehensively insured.
In case, however, it is got comprehensively insured a higher premium than for an "act only" policy is payable depending on the estimated value of the vehicle.
Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf.
Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub section (2) of Section 95 of the Act.
For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf.
Likewise, if risk of any other nature for instance, with regard to the driver or passengers etc.
in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the policy and separate premium paid therefor.
This is the requirement of the tariff regulations framed for the purpose.
Coming to the photostat copy of the policy in the instant case it would be seen that Section II thereof deals with liability to third parties.
Sub section (1) minus the proviso thereto reads as hereunder: "1.
Subject to the Limits of Liability the Company will indemnify the insured against all sums including claimant 's cost and expenses which the insured shall become legally liable to pay in respect of (i) death or bodily injury to any person caused by or 916 arising out of the use (including the loading and/or unloading) of the Motor Vehicle.
(ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle)".
The Schedule to the policy indicates the limits of liability and the amount of premium paid.
The limits of liability are indicated as hereinbelow: "Limits of Liability: Limit of the amount of the Company 's Such amount as is necessary liability under Section II 1(1) in to meet the requirements of respect of any one accidentthe Motor Vehicle Act, 1939 Limit of the amount of the Company 's liability under Section II 1(11) in respect of any one claim or series of claims arising out of one event Rs.20,000/ The premium paid on the other hand is shown as below: "Premium Rs.415.00 Add 1/2% on I.E.V.
Rs.200.00 Add for 53 Pass, 9 of Rs.2.50 Rs.132.50 Add for Driver & Conductor Rs.10.00 757.50" A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use (including the loading and or un loading) of the motor vehicle falling under Section II(1)(i) has been confined to "such amount as is necessary to meet the requirements of the Motor Vehicle Act, 1939.
" This liability, as is apparent from clause (b) of sub section (2) of Section 95 of the Act, was at the relevant time Rs.20,000 only.
The details of the premium also indicate that no additional premium with regard to a case falling under Section II(1)(i) was paid by the owner of the vehicle to the insurance company.
It is only the vehicle which was comprehensively insured, the insured 's estimate of value including accessories (I.E.V.) thereof having been shown as Rs.40,000.
In this view of the matter the submission made by learned 917 counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance.
The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of sub section (2) of Section 95 of the Act namely Rs.20,000.
An award against the appellant could not, therefore, have been made in excess of the said statutory liability.
Learned counsel for the appellant then urged relying on the decision of this Court in British India General Insurance Co. Ltd. vs Captain Itbar Singh and Others, AIR 1959 Supreme Court 1331 that in view of the sub section (6) of Section 96 of the Act no insurer to whom the notice referred to in sub section (2) thereof has been given, is entitled "to avoid his liability" to any person entitled to the benefit of any such judgment as is referred to in sub section (1) thereof otherwise than in the manner provided for in sub section (2).
On this basis it was urged that the appellant was not entitled to assert that its liability was confined to Rs.20,000 only inasmuch as this is not one of the defences specified in sub section (2) of Section 96 of the Act.
We find it difficult to agree with this submission either.
Firstly, in paragraph 12 of the report of this very case it has been held that sub section (2) of Section 96 in fact deals with defences other than those based on the conditions of a policy.
Secondly, from the words "to avoid his liability" used in sub section (6) of Section 96 it is apparent that the restrictions placed with regard to defences available to the insurer specified in sub section (2) of Section 96 are applicable to a case where the insurer wants to avoid his liability.
In the instant case the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability which is to be determined, in the absence of any contract to the contrary, in accordance with the statutory provisions contained in this bahalf in clause (b) of sub section (2) of Section 95 of the Act.
In the instant case since as seen above the appellant did not undertake in the policy any liability in excess of the statutory liability the award against it could be only in accordance with the said statutory liability.
Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal.
In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof.
This Court has consistently emphasised that it is the duty of the party 918 which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.
This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly.
In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof.
We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence.
Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in Civil Appeal would in all probability have been avoided.
Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the Court in doing justice between the parties.
The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasised.
In the result, this appeal succeeds and is allowed to this extent that the liability of the appellant is fixed at Rs.20,000 together with interest as allowed by the High Court.
In view of the order of this Court dated 14th September, 1984 quoted above, however, it is held that even if the total liability of the appellant falls short of Rs.1,00,000, it shall not be entitled to any refund out of the sum of Rs.1,00,000 which was deposited by it and withdrawn by the claimant respondent in pursuance of the said order.
The decree of the High Court as against the driver and the owner of the vehicle namely Respondents 2 and 3 is, however, maintained and all sums in excess of Rs.1,00,000 which has already been withdrawn by the claimant respondent as aforesaid shall be recoverable by him from Respondents 2 and 3 only.
There shall be no order as to costs.
R.S.S. Appeal allowed.
| % This Criminal Appeal against the judgment and order of the Gujarat High Court and the connected Special Leave Petitions against the orders of the various Designated Courts in the State constituted under the Terrorist & Disruptive Activities (Prevention) Act, 1987, raised common questions for consideration.
It was enough to set out the facts in the appeal.
There was an armed clash involving the appellants, as a result whereof the police apprehended the appellants and produced them before the Designated Court.
The appellants moved an application for bail which was rejected by the Designated Court.
The appellants moved the High Court under section 439 read with section 482 of the Code.
The High Court rejected the bail application on the ground that it had no jurisdiction to entertain such an application under section 439 of the Code or by recourse to its inherent powers under section 482.
Aggrieved by the decision of the High Court, the appellants appealed to this Court for relief by special leave.
On the view the Court took as to the nature of the function of the Designated Courts in dealing with the bail applications within the constraints of section 20(8), it was not necessary to deal with the facts of the connected special leave petitions directed against the orders of the different Designated Courts, rejecting the bail applications.
Allowing, the appeal and the special leave petitions partly, the Court, ^ HELD: These cases mainly raised two questions of substantial 226 importance.
The first was as to the jurisdiction and powers of the High Court to grant bail under section 439 of the Code of Criminal Procedure, 1973 or by recourse to its inherent powers under section 482 to a person held in custody for an offence under sections 3 and 4 of the Terrorist & Disruptive Activities (Prevention) Act, 1987, and secondly, as to the nature of the restraint placed on the power of the Designated Courts to grant bail to such a person in view of the limitations placed on such power under section 20(8) of the Act.
[246G H] The Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482.
Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person for an offence punishable under the Act or any rule made thereunder.
There is contrariety between the provisions of the Act and the Code.
Under the Code, the High Court is invested with the various functions and duties in relation to any judgment or order passed by a criminal court subordinate to it.
The Act creates a new class of offences called terrorist acts and disruptive activities and provides for a special procedure for the trial of such offences.
The jurisdiction and power of a Designated Court are derived from the Act and it is the Act that must primarily be looked to in deciding the question before the Court.
Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code.
[239B C; 240A,D] No doubt, the legislature has, by the use of the words 'as if it were ' in section 14(3) of the Act, vested a Designated Court with the status of a Court of Session, but the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code for the trial before a Court of Session, in so far as applicable.
[240D F] Though there is no express provision excluding the applicability of section 439 of the Code similar to the one contained in section 20(7) of the Act in relation to a case involving the arrest of any person for an offence punishable under the Act or any rule thereunder, yet that result must, by necessary implication, follow.
The source of power of a Designated Court to grant bail is not section 20(8) of the Act, as it only places limitations on such power, but it does not necessarily follow that the power of a Designated Court to grant bail is relatable to section 439 of the Code.
The 227 Designated Court is a 'court other than the High Court or the Court of Session ' within the meaning of section 437 of the Code.
The exercise of the power to grant bail by a Designated Court is not only subject to the limitations placed by section 20(9) which in terms provides that the limitations on grant of bail specified in section 20(8) are in addition to the limitations under the Code or any other law for the time being in force on the grant of bail.
It, therefore, follows that the power derived by a Designated Court to grant bail to a person for an offence under the Act is derived from the Code and not section 20(8) of the Act.
The controversy as to the power of the High Court to grant bail under section 439 of the Code must also turn on the construction of section 20(8) of the Act.
[241B E] In view of the explicit bar in section 19(2), there is exclusion of the jurisdiction of the High Court.
It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an inter locutory order, of a Designated Court.
While it is true that Chapter XXXIII of the Code is still preserved, as otherwise the Designated Court would have no power to grant bail, still the source of power is not section 439 of the Code but section 437, being a court other than the High Court or the Court of Session.
Any other view would lead to an anomalous situation.
If it were to be held that the power of a Designated Court to grant bail was relatable to section 439, it would imply that not only the High Court but also the Court of Session would be entitled to grant bail.
The power to grant bail under section 439 is unfettered by any conditions and limitations like section 437.
It would run counter to the express prohibition contained in section 20(8) of the Act.
The Court upheld the view of the High Court that it had no jurisdiction to entertain an application for bail under section 439 or under section 482 of the Code.
[243G H; 244A B,D] As regards the approach which a Designated Court has to adopt while granting bail in view of the limitations placed on such power under section 20(8), the sub section in terms places fetters on the power of a Designated Court on the grant of bail and limitations specified therein are in addition to the limitations under the Code.
In view of these more stringent conditions, a Designated Court should carefully examine every case before it for finding out whether the provisions of the Act apply or not.
A prayer for bail ought not to be rejected in a mechanical manner.
[244E G] The Designated Courts had not in these cases carefully considered the facts and circumstances and had rejected the bail applications mechanically.
In the criminal appeal, the facts were already set out.
In 228 the special leave petitions Nos.
2369 and 2469 of 1967, the prosecution had been started at the instance of the management of a textile mill.
The other cases had arisen out of communal riots.
Normally, such cases have to be dealt with under the ordinary procedure prescribed by the Code, unless offences under sections 3 and 4 of the Act are made out.
The Designated Courts are under a duty to examine the circumstances closely from this angle.
That had not been done.
It was, therefore desirable to set aside the orders passed by the various Designated Courts and remit the cases for fresh consideration.
[246D F] The appeal and the special leave petitions partly succeeded.
While upholding the judgment and order of the High Court, dismissing the applications for bail under section 439 of the Code of Criminal Procedure, 1973, the Court granted leave and set aside the impugned orders passed by the various Designated Courts in the State, dismissing the applications for bail, and directed them to consider each particular case on merits as to whether it fell within the purview of section 3 and/or section 4 of the Act, and if so, whether the accused in the facts and circumstances of the case were entitled to bail while keeping in view the limitations on their powers under section 20(8) of the Act.
Where the Designated Courts find that the acts alleged in the police report or complaint of facts under section 14(1) do not fall within the purview of section 3 and/or section 4 of the Act, they shall in exercise of the powers under section 10 of the Act transfer the cases for trial to the ordinary criminal courts.
The accused persons, enlarged on bail by this Court, should continue to remain on bail until their applications for bail were dealt with by the Designated Courts with advertence to the observations made above.
[246F H; 247A B] In Re the Special Courts Bill, 1978, [1979] 2 S.C.R. 476; Balchand Jain vs State of Madhya Pradesh, ; ; Ishwar Chand vs State of Himachal Pradesh, I.L.R. (1975) H.P. 569 and V.C. Shukla vs State through C.B.I., , referred to.
|
Appeals Nos. 98 and 99 of 1957.
Appeals from the judgment and order dated August 31, 1954, of the Madhya Pradesh High Court in Civil Misc.
Case No. 9 of 1953.
R. Ganapathi Iyer and D. Gupta, for the appellant in C. A. No. 98 of 1957 and respondents in C. A. No. 99 of 1957.
section K. Kapur and Naunit Lal, for the respondents in C. A. No. 98 of 1957 and appellant in C. k. No. 99 of 1957.
November 30.
MUDHOLKAR, J. These are cross appeals from two judgments of the erstwhile High Court of Madhya Bharat.
Both of them arise out of a writ petition presented by the Gwalior Sugar Company Ltd., who are respondents in C. A. 98 of 1957, in which they challenged the validity of the levy of a cess on sugarcane purchased by the respondents.
The grounds on which the validity of the cess is challenged are two.
The first ground is that it was not levied under any law and the second ground is that it is discriminatory against the respondents.
In order to appreciate these contentions it is necessary to set out certain facts.
In the year 1940 in pursuance of an agreement entered into between the Government of Gwalior State and Sir Homi Mehta and others a sugar factory was established at Dabra.
The name of that factory is The Gwalior Sugar Co., Ltd. On June 20, 1946, the Maharaja Scindia, the ruler of Gwalior State constituted a Committee to consider the desirability of imposing a "cane cess on the lines of the United Provinces or Bihar and to recommend a procedure for fixation of sugar prices within the terms of the agreement subsisting between the Government and the factory".
The Report of the 621 Committee was submitted to the Maharaja by the Chairman on July 23, 1946.
In their report the Committee observed that in order to put the industry on a sure and stable footing it was absolutely necessary to develop the cane area and yield in the shortest possible time.
For this purpose the Committee recommended that it was essential to levy a cane cess of one anna per maund on all sugar cane purchased by the respondent factory.
At the foot of this report the Maharaja made the following endorsement "Guzarish sanctioned, J. M. Scindia, 27 7 46".
It may be mentioned that the Committee also recommended the establishment of a Cane Development Board.
This recommendation was also accepted by the Ruler.
On August 26, 1946, the Economic Adviser to the Government of Gwalior wrote a letter to the Manager of the respondent factory.
It will be useful to reproduce the text of that letter as it will have some relevance on the second ground on which the cess is challenged.
The letter runs thus: "Dear air, With a view to expand cane area and cane yield in the Harsi commanded area so that the Gwalior Sugar Co., Ltd., be put on a sound and stable basis, the Gwalior Government have decided to impose a cane cess of one anna per maund on all sugarcane purchased by your factory.
The operation of this cess will start from the coming sugarcane crushing season.
The proceeds of the cess have been earmarked for cane development work in the Harsi region that will be undertaken by a Cane Development Board constituted for the purpose.
The Cane Development Board expects your co operation in this development work, which is proposed to be undertaken as soon as possible.
Yours sincerely, Secretary, Cane Development Board.
" The respondent factory protested against this levy.
After the formation of the State of Madhya Bharat, 79 622 the respondent made a representation to the Government of Madhya Bharat against the levy of the cess.
That representation was, however, rejected.
They, then, paid the cess for the years 1946 to 1948 amounting to Rs. 1,17,712 8 2.
The Government of Madhya Bharat made a demand from the respondents for a sum of Rs. 2,79,632 14 9 for the years 1949 to 1951.
The respondents challenged the demand upon the two grounds set out above and presented a petition before the High Court of Madhya Bharat for quashing the demand.
The petition was opposed on behalf of the State of Madhya Bharat which was the successor State of the former Gwalior State.
The High Court granted the petition partially by holding that the State of Madhya Bharat was not entitled to recover the cess due from the respondents after January 26, 1950.
It may be mentioned that it was conceded on behalf of the respondent company before the High Court that the State was entitled to recover the cess prior to January 26, 1950.
Later, however, the respondents preferred a review petition to the High Court in which they sought relief even in respect of the cess for the period prior to January 26, 1950.
The review petition was dismissed by the High Court upon the ground that no such petition lay.
The respondents are challenging the view of the High Court in C. A. No. 99 of 1957.
After the coming into force of the States Reorganization Act, 1956, the State of Madhya Pradesh has been substituted for the State of Madhya Bharat and they are shown as appellants and respondents respectively in the two appeals.
The High Court struck down the cess upon the ground that the order dated July 27, 1946, of the Gwalior Durbar was only an executive order and not a law under article 265 of the Constitution and that, therefore, there was no authority for the imposition of the cess after January 26, 1950.
This point is covered by the decision of this Court in Madhaorao Phalke vs The State of Madhya Bharat and Another (1) decided on October 3, 1960.
In the course of the judgment of this Court delivered by Gajendragadkar, J., he pointed out: (1) ; 623 "It would thus be seen that though Sir Madhya Rao was gradually taking steps to associate the public with the government of the State and with that object he was establishing institutions consistent with the democratic form of rule, he had maintained all his powers as a sovereign with himself and had not delegated any of his powers in favour of any of the said bodies.
In other words, despite the creation of these bodies the Maharaja continued to be an absolute monarch in whom were vested the supreme power of th e legislature, the executive and the judiciary. "In dealing with the question as to whether the orders issued by such an absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power.
There was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, how ever issued, would have the force of law and would govern and regulate the affairs of the State including the rights of the citizens.
"It is also clear that an order issued by an absolute monarch in an Indian State which had the force of law would amount to an existing law under article 372 of the Constitution." From these observations it would be quite clear that the endorsement of the Maharaja on the Guzarish whereby he accepted the recommendation of the Committee about imposing a cess on the sugarcane crushed by the factory amounted to a law, however informal that endorsement may appear to be.
Since it was a law enacted by the Maharaja then, with the coming into force of the Constitution, it became an existing law under article 372 and thus it satisfies the requirements of article 265 of the Constitution.
624 Disagreeing with the High Court we therefore hold that the cess was imposed by authority of law.
What remains to be considered is whether this cess violates the guarantee of equal protection contained in article 14 of the Constitution.
What was urged Ltd. before the High Court and what was also urged before us was that this is the only sugar factory in the present State of Madhya Pradesh which is liable to pay the cess whereas other sugar factories are exempt therefrom.
The result of this is that those other sugar factories do not have to pay this cess and are thus better placed in the matter of carrying on their business of manufacturing and marketing of sugar than the respondents and so there is discrimination against the respondents in that respect.
It seems to us, however, that this cannot be regarded as discrimination at all, even after the formation of the State of Madhya Pradesh.
The reason is that the difference arises out of the historical background to the imposition of this cess.
It has recently been held by this Court in M. K. Prithi Rajji vs The State of Rajasthan & Ors (1) decided on November 2, 1960, that geographical classification based upon certain historical factors is a permissible mode of classification.
In our opinion, the principle underlying that decision would also apply to the present case.
In view of the decision, Mr. Kapur the learned counsel for the respondents sought to rest his argument on a somewhat different ground.
That ground is that under the order of June 27, 1946, the respondent factory alone was made liable to pay cess and that no similar liability was imposed upon any other factory in Gwalior.
It would, however, appear that at that time no other sugar factory was at all in existence in the Gwalior State.
The respondent factory was the first to be established and for all we know is even today the only sugar factory in the area which formerly constituted the State of Gwalior.
We have already quoted the letter written by the Economic Adviser to the Gwalior Government addressed to the Management of the Gwalior Sugar Co., Ltd. From that letter it would (1) C.A. NO. 327 of 1956.
625 appear that the cess was imposed for a definite purpose and that was to expand the cane area in the Harsi commanded region so that the Gwalior Sugar Co., Ltd., that is, the respondent factory would be put on a sound and stable basis.
It will, therefore, be clear that far from discriminating against the factory, the whole object of the cess was to do something for the benefit of the factory and for the benefit of the sugar industry in the State which was at that date in its infancy.
Apart from the fact that in the matter of taxation the legislature enjoys a wide discretion, it should be borne in mind that a tax cannot be struck down as discriminatory unless the Court finds that it has been imposed with a deliberate intention of differentiating between an individual and an individual or upon grounds of race, religion, creed, language or the like.
There was no question of doing anything like this in the year 1946 when no other sugar factory existed in the State of Gwalior.
The cess was thus good in law when enacted and it has not been rendered void under article 13 by reason of the coming into force of the Constitution on the ground that it violates article 14.
In our opinion, therefore, both the grounds on which the validity of the cess is challenged are ill conceived and the cess is a perfectly valid one.
It would, therefore, be competent to the State of Madhya Pradesh to realise that cess from the respondent factory.
Upon the view we have taken in the matter in C. A. No. 98 of 1957 nothing remains to be considered in C. A. No. 99 of 1957.
Accordingly we allow the appeal by the State and dismiss that of the respondents.
The costs of the appeal will be borne by the respondents in C. A. No. 98 of 1957.
As both the appeals were argued together, there will be only one set of hearing fees.
Appeal No. 98 allowed.
Appeal No. 99 dismissed.
| The High Court of.
Jammu and Kashmir, relying on the decisions of this Court in Election Commission, India vs Saka Venkata Subba Rao; , and K. section Rashid and Son vs The Income Tax Investigation Commission etc.
; , , dismissed an application for a writ made by the appellant against the Union of India and Anr.
under article 32(2A), the relevant provisions of which are in the matter of enforcement of fundamental rights the same as in article 226 of the Constitution, on the preliminary objection that the said application was not maintainable against the Union of India as it was outside the territorial jurisdiction of that Court.
The appellant 's case was that he was holding the substantive rank of Lieut.
Col. in Jammu and Kashmir and had the right to continue in service until he attained the age of 53 on November 20, 1961, but was prematurely retired by a letter issued by the Government of India on July 31, 1954, without any allegation or charge and in contravention of article 16(1) of the Constitution.
Held, that there can be no doubt as to the correctness of the decisions relied on by the High Court and the appeal must fail.
829 The jurisdiction of the High Court under article 226 of the Constitution, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect cannot enter into the determination of such jurisdiction.
Since functioning of a Government really means giving effect to its order, such functioning cannot determine the meaning of the words "any person or authority within these territories" occurring in the article.
A natural person, therefore, is within those territories if he resides there permanently or temporarily, an authority other than the Government is within those territories if its office is located there and a Government if its seat from which, in fact, it functions is there.
It is not correct to say that the word "authority" in article 226 cannot include a Government.
That word has to be read along with the clause "including in appropriate cases any Government" immediately following it, which, properly construed, means, that the word may include any Government in an appropriate case.
That clause is not connected with the issuance of a writ or order and is not intended to confer discretion on the High Courts in the matter of issuing a writ or direction on any Government, and only means in such cases where the authority against whom the High Court has jurisdiction to issue the writ, happens to be a Government or its subordinates, the High Court may issue a writ against the Government.
Election Commission, India vs Saka Venkata Subba Rao, and K. section Rashid and Son vs The Income tax Investigation Commission etc.
; , , approved.
Maqbulunnissa vs Union of India, I.L.R. (1953) 2 All. 289, overruled.
The Lloyds Bank Limited vs The Lloyds Bank Indian Staff Association (Calcutta Branches), I.L.R. , referred to.
Proceedings under article 226 are not suits covered by article 300 of the Constitution.
Such proceedings provide for extra ordinary remedies by a special procedure and there is no scope for introducing the concept of cause of action in it in the face of the express limitation imposed by it, that the person or authority concerned must be within the territories over which the High Court exercises jurisdiction.
Ryots of Garabandho vs Zamindar of Parlakimedi, (1943) L.R. 70 I.A. 129, held inapplicable.
The resulting inconvenience of such an interpretation of article 226 to persons residing far &way from New Delhi, where the Government of India is in fact located, and aggrieved by some order passed by it, may.
be a reason for suitably amending the Article but cannot affect its plain language.
This Court should not, except when it is demonstrated beyond all reasonable doubt that the previous ruling, given after 105 830 due deliberation and full hearing, was erroneous, go back upon it, particularly on a constitutional issue.
Per Subba Rao, J.
The object that the framers of our Con stitution had before them in declaring the fundamental rights in Part III of the Constitution and empowering the High Courts by article 226 of the Constitution to enforce them would be largely defeated if a person in a remote part of the country had to come to New Delhi to seek the protection of the Punjab High Court whenever the Union Government infringed his fundamental right.
The power of the High Courts under article 226 of the Consti tution is of the widest amplitude and it can issue not merely writs but also directions and orders.
The words "any Government" in the Article includes the Union Government which has no constitutional situs in a particular place and exercises its powers throughout India and must, therefore, be deemed in law to have functional existence throughout India and thus within the territories of every State.
Consequently, when the Union Government infringes the legal right and interest of a person residing within the territorial jurisdiction of 'a High Court, the High Court has the power under the Article to issue a writ to that Government.
If its orders are disobeyed by that Government or any of its officers, even though physically outside its territories, it can proceed in contempt against them under the Contempt.
of Courts Act, 1952.
Election Commission, India vs Saka Venkata Subba Rao, ; , held inapplicable.
K. section Rashid and Son vs Income Tax Investigation Commission, ; and Ryots of Garabandho vs Zamindar of Parlakimedi, L.R. 70 I.A. 129, considered.
Maqbul Unnissa vs Union of India, I.L.R. (1953) 2 All. 289, approved.
Surajmal vs State of M.P., A.I.R. 958 M.P. 103 and Radhe shyam Makhanlal vs Union.of India, A.I.R. 1960 Bom.
353, held inapplicable.
In the instant case, therefore, the High Court had the power to issue the writ to the Union Government under article 32(2A) of the Constitution.
Per Das Gupta, J.
It is neither correct nor appropriate to speak of location of any Government and there is no satisfactory test for ascertaining the location of the Government of India.
Since the Government functions throughout the territory of India, the conclusion must be that it is within the territories under the jurisdiction of every High Court.
The words "any Government" in article 226 clearly indicate that the High Court was intended to give relief against that Government as well.
Even though the Government, of India is within the territories of every High Court, it will not have to face applications 831 for relief against the same order in all the High Courts in India.
The words "in appropriate cases" in that Article, properly construed, indicate that there can be only one High Court thereunder that can exercise jurisdiction under the Article for every act or omission in respect of which relief is claimed.
It is possible in every case to ascertain the place where the act or omission took place and that High Court alone, which exercises jurisdiction over that place, can have jurisdiction to grant relief under the Article.
It is not correct to say that under article 226 the cause of action determines the jurisdiction.
Neither that Article nor article 32(2A) of the Constitution is based on that principle.
Election Commission, India vs Saka Venkata Subba Rao, ; , approved.
|
Appeal No. 14 of 1959.
Appeal by special leave from the Award dated February 21, 1958, of the Central Government Industrial Tribunal, Nagpur at Bombay, in Reference CGIT No. 12 of 1957.
Sachin Chaudhury, section N. Andley, J. B. Dadachanji and, Rameshwar Nath, for the appellant.
A. section R. Chari and Y. Kumar, for the respondents.
April 4.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave in an industrial matter.
The appellant is The Chartered Bank, Bombay (hereinafter called the Bank).
There was a dispute between the Bank and its workmen regarding the termination of the service, of one Colsavala (hereinafter called the respondent) who was working as an assistant cashier in the Bank.
The system of working in the cash department of the Bank is that there is a chief cashier and under him are about thirty assistant cashiers.
The Chief Cashier has to give security for the work of the cash department.
Consequently all assistant cashiers are employed upon the introduction of the Chief Cashier who guarantees each such employee.
By virtue of this guarantee the Chief Cashier alone is unconditionally responsible to the Bank for any shortage which might occur in the cash department and no security is taken from the assistant cashiers working therein.
In view of this guarantee by the Chief Cashier there has been a longstanding practice in the Bank that at the end of the day when the cash is locked up under the supervision of the Chief Cashier, all the assistant cashiers have to be present so that the cash may be checked before 443 being locked up.
Assistant Cashiers therefore can only leave the Bank before the locking up of the cash after obtaining permission of the Chief Cashier.
On January 4, 1957, the Chief Cashier reported to the management that the respondent had been leaving the Bank without his permission for some time past before the cash was checked and locked up in spite of the issue of a departmental circular in that behalf on December 24, 1956, by which all assistant cashiers (including the respondent) were reminded of the longstanding practice that no assistant cashier should leave the Bank without the permission of the Chief Cashier before the cash was checked and locked tip.
The Chief Cashier therefore stated that he was unable to continue to guarantee the respondent and that unless the respondent 's service was dispensed with his conduct will affect the security of the cash department.
As the Bank was not prepared to change the system in force in the cash department, the management decided to dispense with the service of the respondent in accordance with the mode of termination prescribed by paragraph 522(1) of the All India Industrial Tribunal (Bank Disputes) Award of March, 1953 (hereinafter referred to as the Bank Award).
The Bank was also unable to employ the respondent in any other department.
It therefore informed the respondent on March 29, 1957, that as the guarantee covering his employment had been withdrawn by the Chief Cashier the Bank was unable to continue to employ him.
The notice required under paragraph 522(1) was given and the amount due to the respondent including retrenchment compensation was paid to him and his service was terminated.
Thereupon a dispute was raised by the workmen of the Bank and a reference was made by the Central Government to the Industrial Tribunal with respect to the "alleged wrongful termination of the services of Shri N. D. Colsavala by the Chartered Bank, Bombay, and the relief, if any, to which he is entitled.
" The case on behalf of the respondent was that he had been working in the Bank since September 1, 1937, honestly and efficiently as an assistant cashier in the cash department The previous Chief Cashier who 444 was the father of the present Chief Cashier however became hostile to him since 1943, because he claimed his legitimate dues for overtime work and leave which the then Chief Cashier was not prepared to allow.
Further the respondent 's letter of appointment did not oblige him to give any security or to procure any guarantee and if the Chief Cashier had given any guarantee to the Bank, the respondent was not concerned with it and had even no knowledge of it.
He was given no opportunity to contest the reasons for the withdrawal of the guarantee by the Chief Cashier; nor was he asked to furnish security or give a fidelity bond, even if the Chief Cashier had withdrawn the guarantee.
In consequence the discharge of the respondent from service on the ground given by the Bank was entirely illegal, wrongful and unjustified and he was entitled to reinstatement or in the alternative to full compensation for loss of employment.
The case of the Bank was that it was entitled to terminate the service of the respondent under paragraph 522(1) of the Bank Award and it was not incumbent on it to state the reasons for such termination and the reasons could not be inquired into or examined by the tribunal.
In the alternative it was submitted that if the tribunal was of the opinion that it was open to it to inquire into the reasons, the Bank 's case was that the respondent was not dismissed or discharged by way of punishment for any misconduct and that the Bank merely terminated his service under paragraph 522(1) of the Bank Award, as his guarantee had been withdrawn by the Chief Cashier and it was impossible to continue to employ him in the circumstances, the Bank being.
unprepared to change its system of working which has already been mentioned above.
It was also said that the Bank was not bound to transfer the respondent to another department and in any case the respondent 's training, experience, ability or record did not fit him for work in any other department of the Bank.
The tribunal held that even though the Bank had chosen to follow the procedure laid down in paragraph 522(1) of the Bank Award which provides for termination of employment "in cases not involving 445 disciplinary action for misconduct, by three months ' notice or on payment of three months ' pay and allow.
ances in lieu of notice", this did not preclude it from inquiring into the reasons for the termination of service and into the legality and/or propriety of the action taken by the bank and that paragraph 522(1) did not give a free hand to the Bank to dispense with the service of a permanent employee at will.
It also held that it was always open to the tribunal to inquire into the bona fides as well as justifiability of the action taken.
It then went into the circumstances in which the termination of service took place and was of opinion that this was in fact and in reality a case of termination of service for misconduct, and that it was the duty of the Bank to follow the procedure for taking disciplinary action for the alleged insubordination and persistent disobedience of the orders of the Chief Cashier by the respondent with respect to leaving the Bank without his prior permission before the cash was checked and looked up and inasmuch as the Bank failed to follow the requisite procedure as was laid down in paragraph 521 of the Bank Award, the termination of the service of the respondent was illegal and improper and he was entitled to reinstatement with full back wages and other benefits.
It is this order which is being challenged before us by the Bank.
The main contention on behalf the Bank is that the view taken by the tribunal that in every case where there may be some misconduct the Bank is bound to take disciplinary action under paragraph 521 of the Bank Award makes paragraph 522(1) completely otiose and is erroneous.
Further it is contended that in the peculiar position obtaining in the cash department of the Bank whereby the Chief Cashier guarantees all the assistant cashiers working under him, the Bank did not want to go into the squabble between the Chief Cashier and the respondent and as the Chief Cashier had withdrawn the guarantee of the respondent, the Bank decided without apportioning any blame between the Chief Cashier and the respondent to act under paragraph 522(1) of the Bank Award.
It is urged that paragraph 522(1) of the Bank Award is 57 446 particularly meant to meet situation,,; like this which may arise in a banking concern.
The first question that arises therefore is the scope of the power of the Bank to act under paragraph 522(1) of the Bank Award, particularly in the peculiar situation prevailing in the cash department of the Bank.
The position in the cash department of the banks was considered by the Bank Award in Chapter XXI with respect to giving of security.
In para graphs 417 and 418, the existing practice in various banks is summarised and it takes one of three forms, namely (i) every member of the staff is to give security, (ii) the head cashier gives a guarantee on behalf of all the cashiers working under him, and (iii) where the treasurer system prevails, the treasurer enters into a contract with the bank and recommends the employees for employment in the cash department and guarantees their fidelity and they are thereupon appointed by the bank.
The tribunal was not right in saying that the system which was prevailing in the Bank was peculiar to it and was not mentioned in the Bank Award.
It will be seen that the system in the Bank is of the second kind noticed in the Bank Award where the Chief Cashier guarantees all those working under him.
It is also mentioned in the Bank Award that the Chief Cashier generally takes security deposits from persons working under him but that did not appear to be the invariable rule, and in the Bank the Chief Cashier does not take any security from his subordinates.
In such a system the Bank has to depend upon the security given by the Chief Cashier and his guarantee of the employees working under him.
It is impossible to accept that this way of working was not known to the respondent.
The Bank has produced the respondent 's application for employment and it is significant that it is addressed to the Chief Cashier and not to the management of the Bank and this bears out the contention of the Bank that the subordinates in the cash department are employed on the recommendation of the Chief Cashier who gives guarantee for them.
Nor does the Bank 's contention that no one employed in the cash department leaves without permission till the cash is checked and locked up appears 447 improbable, for the practice seems necessary for the security of the cash department.
Therefore when the Bank was faced with the report of the Chief Cashier dated 4 1 1957, it had to decide in the special circumstances of this case what action should be taken on that report.
Two courses were open to it: it could have taken disciplinary action under paragraph 521 of the Bank Award or it could have acted under paragraph 522(1).
The submission on behalf of the Bank is that it did not want to go into the squabble between the Chief Cashier and the respondent and as the Chief Cashier had withdrawn his guarantee with respect to the respondent it acted bona fide in proceeding under paragraph 522(1) and thus no question arose of its taking disciplinary action against the respondent.
There is no doubt that an employer cannot dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal has no jurisdiction to inquire into the circumstances in which such termination of service simpliciter took place.
Many standing orders have provisions similar to paragraph 522(1) of the Bank Award, and the scope of the power of the employer to act under such provisions has come up for consideration before labour tribunals many a time.
In Buckingham and Carnatic Company Ltd., Etc., vs Workers of the Company, etc.
(1), the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning any reason.
It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the termination of service is a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination.
Further it held that where the termination of services is capricious, arbitrary or unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimisation or unfair labour practice.
We are of opinion that this correctly lays down the scope of the power of the tribunal to (1) 448 interfere where service is terminated simpliciter under the provisions of a contract or of standing orders or of some award like the Bank Award.
In order to judge this, the tribunal will have to go into all the circumstances which led to the termination simpliciter and an employer cannot say that it is not bound to disclose the circumstances before the tribunal.
The form of the order of termination is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of dismissal for misconduct.
It is therefore always open to the tribunal to go behind the form and look at the substance; and if it comes to the conclusion, for example, that though in form the order amounts to termination simpliciter it in reality cloaks a dismissal for misconduct it will be open to it to set it aside as a colourable exercise of the power.
It is on these principles therefore that we have to judge the action taken by the Bank in this case.
In the statement of claim put in by the workmen there was no allegation of victimisation or unfair labour practice.
An affidavit was filed by the respondent later before the tribunal in which it was said that the Bank had acted mala fide in removing him from service.
But in this affidavit nothing was said as to how the management of the Bank as distinct from the Chief Cashier had any reason to act mala fide against the respondent.
The tribunal also has not recorded any finding that the action of the Bank in terminating the service of the respondent was mala fide or amounted to unfair labour practice or was a case of victimisation.
It ordered reinstatement on the ground that this was a case where disciplinary action must and should have been taken and that was not done.
In one part of the award the tribunal has remarked that if it is found that the Bank has merely in colourable exercise of the power made the order under paragraph 522(1) of the Bank Award, the order would not be sustainable.
But there is no finding that the action taken in this case was a colourable exercise of the power under paragraph 522(1).
It is, however, urged on behalf of the respondent that even though there is no such finding by the tribunal a perusal of the entire award seems 449 to show that this was what the tribunal thought inasmuch as it has said that this was a case in which disciplinary action must and should have been taken.
However, as we read the award of the tribunal, the impression that we get is that its view was that where there is an allegation which may amount to misconduct against an employee of a bank, the procedure under paragraph 521 must always be followed and that the procedure under paragraph 522(1) can never be followed; and that is why the tribunal did not give any finding that the action of the Bank was a colourable exercise of the power under paragraph 522(1).
But as learned counsel for the respondents has urged before us that the action in this case is in any case a colourable exercise of the power under paragraph 522(1) we propose to look into this aspect of the matter ourselves.
It is true that there was some kind of allegation by the Chief Cashier which may amount to misconduct in this case and if we were satisfied that the termination of service of the respondent was due to that misconduct and that the form of the order was merely a cloak to avoid holding a proper enquiry under paragraph 521, no doubt there would have been no case for interference with the order of the tribunal.
But this is a peculiar case depending upon a peculiar system prevalent in the cash department of the Bank.
That system is that the Chief Cashier gives security for the entire working of the cash department and is unconditionally responsible for any loss that might be occasioned to the Bank in that department.
The appointments in that department are made on the recommendation of the Chief Cashier and he gives a guarantee about each employee and is unconditionally responsible to the Bank for any shortage which might occur.
It is in these circumstances that the Bank was faced with the report of the Chief Cashier by which for the reason given by him he withdrew the guarantee so far as the respondent was concerned.
The security of the cash department was thus involved and if the Bank decided as it seems to have done in this case that it would not go into the squabble between the Chief Cashier and the respondent and would use paragraph 522(1) of the 450 Bank Award to terminate the service of the respondent it cannot be said that the Bank was exercising its power under paragraph 522(1) in a colourable manner.
It may have honestly come to the conclusion that in this situation, as it was not possible for it to change its system in the cash department, there was no option for it but to dispense with the service of the respondent under paragraph 522(1) of the Bank Award without going into the rights and wrongs of the dispute between the Chief Cashier and the respondent.
In the peculiar circumstances therefore obtaining in the cash department of the Bank it cannot in our opinion be said that the use of the power under paragraph 522(1) by the Bank in the present case was a colourable exercise of that power.
Nor do we think that the failure of the Bank to provide alternative employment for the respondent would lead to any such inference,, for the Bank may very well be right when it says that it is a specialised institution and considering that the respondent has been working in one department for the last twenty years he was not fit to be absorbed in another department.
In the circumstances of this case therefore we are not prepared to hold that the termination of the service of the respondent was a colourable exercise of the power under paragraph 522(1) of the Bank Award.
The mention of the fact that the service was being terminated because the Chief Cashier had withdrawn the guarantee of the respondent in the notice of.
discharge will not change the nature of the termination, for the reason was given obviously to avoid the charge that the termination was entirely capricious or arbitrary, and therefore not bona fide.
We therefore allow the appeal and set aside the order of the tribunal by which the respondent was ordered to be reinstated with full back wages and other benefits.
In the circumstances we pass no order as to costs.
Appeal allowed.
| The system of working in the cash department of the appellant Bank was that there was a Chief Cashier and there were about thirty Assistant Cashiers under him.
The Chief Cashier had to give security for the work of the cash department; the Assistant Cashiers were employed upon being introduced by the Chief Cashier who guaranteed each such employee.
There was long standing practice in the Bank that at the end of the day when the cash was locked up under the supervision of the Chief Cashier, all the assistant cashiers had to be present so that the cash could be checked before being locked up.
In spite of reminders C, an Assistant Cashier, had been leaving the Bank without the permission of the Chief Cashier for some time before the cash was checked and locked up.
The Chief Cashier reported the matter to the management, withdrew his guarantee in respect of C and stated that unless the services of C were dispensed with his conduct would affect the security of the cash department.
The Bank terminated the services of C in accordance with the provisions of para.
522(1) of the All India Industrial Tribunal (Bank Disputes) Award, 1953, without holding any enquiry against C.
The Industrial Tribunal to which the dispute was referred held that this was in fact and in reality a case of termination of services for misconduct and the Bank ought to have followed the procedure laid down in para.
521 of the Bank Award for taking disciplinary action, that the termination of service was illegal and improper and that C was entitled to reinstatement with full back wages and other benefits : Held, that the services of the Assistant Cashier were properly terminated by the Bank.
There was no doubt that an employer could not dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal had no jurisdiction to inquire into the circumstances of such termination.
Even in a case of this kind the requirement of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair labour practice the tribunal had jurisdiction to interfere.
Where the termination of service was capricious, arbitrary or unnecessarily harsh that may be cogent evidence of victimisation or unfair labour practice.
In the present case the security of the 442 Bank was involved and if the Bank decided that it would not go into the squabble between the Chief Cashier and C and would use para.
522(1) of the Bank Award to terminate the services of C it could not be said the Bank was exercising its power under para.
522(1) in a. colourable manner.
It was not necessary that in every case where there was an allegation of misconduct the procedure under para.
521 for taking disciplinary action should be followed.
Buckingham and Carnatic Company Ltd. vs Workers ' of the COmpany, , approved.
|
Petition No. 1 of 1987.
Election Petition under Section 16, 17, 18, 19 and 20 of Part III of the Petitioner in person (Mithilesh Kumar).
K. Parasaran, Attorney General T.S. Krishnamurthy Iyer, Krishnamurthy Swami and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The above petition is filed by the petitioner, Shri Mithilesh Kumar under the provisions of the (Act No. 31 of 1952) (hereinafter referred to as 'the Act ') calling in question the validity of the election of Shri R. Venkataraman, the 1st respondent herein as the 528 President of India at the election held in July, 1987 for electing the President of India and praying for a declaration that he is the successful candidate at that election.
There were three candidates at the election, namely, Shri R. Venkataraman respondent No. 1, Shri V.R. Krishna Iyer respondent No. 2 and Shri Mithilcsh Kumar the petitioner.
The result of the election was declared on 16.7.1987 by the Returning officer for Presidential Election 1987 respondent No. 4, declaring Shri R. Venkataraman respondent No. 1 as the President of India.
The Act was passed in the year 1952 for the purpose of regulating certain matters relating to or connected with the elections to the offices of the President and the Vice President of India.
Part II of the Act contains the provisions relating to the conduct of Presidential and Vice Presidential elections and Part III of the Act sets out the provisions relating to the settlement of disputes regarding elections to the offices of the President and the Vice President of India.
Section 14 of the Act provides that no election should be called in question except by presenting an election petition to the authority specified in subsection (2) and the authority having jurisdiction to try an election petition under the Act is specified as the Supreme Court of India by sub section (2).
Sub section (3) of section 14 of the Act requires that an election petition should be presented to the Supreme Court of India in accordance with the provisions of Part III of the Act and of the rules made by the Supreme Court of India under Article 145 of the Constitution of India.
Order XXXIX of the Supreme Court Rules, 1966 (hereinafter referred to as 'the Rules ') made under Article 145 of the Constitution of India and all other powers enabling it in this behalf by the Supreme Court of India contains the provisions relating to the election petitions filed under Part III of the Act.
Section 14 A of the Act provides that an election petition calling in question an election may be presented on one or more of the grounds specified in Sub/section (1) of section 18 and section 19 to the Supreme Court by any f candidate at such election or in the case of Presidential election, by twenty or more electors joined together as petitioners and in the case of Vice Presidential election, by ten or more electors joined as petitioners.
Such petition may be presented at any time after the date of the publication of the declaration containing the name of the elected candidate at the election under section 12 of the Act but not later than thirty days from the date of such publication.
Section is of the Act provides that subject to the provisions of Part III of the Act rules made by the Supreme Court of India under Article 145 of the Constitution of India may regulate the form of election petitions, the manner in which 529 they are to be presented, the persons who are to be made parties thereto, the procedure to be adopted in connection therewith and the circumstances in which petitions are to abate and to be withdrawn and in which new petitioners may be substituted and may require security to be given for costs.
Rule 3 of order XXXIX of the Rules prescribes that a court fee stamp of the value of rupees two hundred and fifty shall be paid on the election petition and the election petition will be signed by the petitioner or petitioners, if they are more than one, or a duly authorised advocate on record on his or their behalf.
Rule 4 of order XXXIX of the Rules provides that the petition shall be divided into paragraphs, numbered consecutively, each paragraph being confined to a distinct portion of the subject, and shall be printed or typed legibly on one side of standard petition paper, demy foolscap size or of the size of 29.7 cm.
x 21 cm.
Or on paper of equally superior quality.
Rule 5 of order XXXIX of the Rules requires that the petition shall state the right of the petitioner under the Act to petition the Court and briefly set forth the facts and grounds relied on by him to sustain the reliefs claimed by him.
The allegations of fact contained in the petition shall be verified by an affidavit to be made personally by the petitioner or by one of the petitioners, if there are more than one as provided under rule 6 of order XXXIX of the Rules.
The grounds on which the election of the returned candidate at the Presidential or the Vice Presidential election can be declared void are set out in section 18 of the Act Section 18 of the Act reads thus: " 18(1).
If the Supreme Court is of opinion, (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the consent of the returned candidate; or (b) that the result of the election has been materially affected (ii) by the improper reception or refusal of a vote; or (ii) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act; or (iii) by reason of the fact that the nomination of any 530 candidate (other than the successful candidate), who has not withdrawn his candidature, has been wrongly accepted; or (c) that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted; the Supreme Court shall declare the election of the returned candidate to be void.
(2) For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IXA of the Indian Penal Code.
" Section 19 of the Act sets out the grounds for which a candidate other than the returned candidate may be declared to have been elected.
Section 19 of the Act reads thus.
Grounds for which a candidate other than the re turned candidate may be declared to have been elected.
If any person who has lodged an election petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Supreme Court is of opinion that in fact the petitioner or such other candidate received a majority of the valid votes, the Supreme Court shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected: Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
" Section 18 of the Act is exhaustive of the grounds on which the election of the President or the Vice President can be declared void.
Under section 18(1)(a) an election of the President or of the Vice President may be set aside if it is established that the offence of bribery or undue influence, as explained in Chapter IXA of the Indian Penal 531 Code had been committed by the returned candidate or by any person with the consent of the returned candidate.
In order to succeed on the grounds mentioned in section 18(1)(a) of the Act it has to be established that the offence of bribery or undue influence had been committed at the election by the returned candidate himself; or by any person with his consent.
Originally when the Act was enacted section 18(1)(a) of the Act read thus: " 18(1).
If the Supreme Court is of opinion (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate: or . . . . . . . . ." The word 'connivance ' in section 18(1)(a) of the Act was substituted later on by Parliament when the former Part III of the Act was substituted by the present Part III of the Act by the Presidential and the Vice Presidential Elections (Amendment) Act, 1977 to bring it in line with the provisions of section 123(1) and (2) of the Representation of the People Act, 1951, which contain the grounds of bribery and undue influence which would vitiate the election to either House of Parliament or to the Houses or House of the State Legislatures as the case may be.
Clause (b) of section 18(1) of the Act contains three grounds the proof of any of which would result in the election being declared void provided it is established that the result of the election has been materially affected thereby, namely, (i) the improper reception or refusal of a vote; or (ii) any non compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act; or (iii) wrongful acceptance of the nomination of any candidate (other than the successful candidate), who has not withdrawn his candidature.
Clause (c) of section 18(1) of the Act provides that if the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted, the election of the returned candidate is to be declared void.
These are the only grounds on which the election of the returned candidate can be declared void under the Act.
Section 19 of the Act as stated already contains grounds for declaring a candidate other than the returned candidate as duly elected.
It should he stated at the outset that the manner in which the 532 present petition has been drafted is not in accordance with the Rules.
Ordinarily the petition should state in a narrative form succinctly and clearly all the facts as may be necessary to enable the respondents and the Court to understand the case of the petitioner.
This is not the case here.
The first part of the petition contains 13 questions and the answers given by the petitioner to those questions.
A reading of all these 13 questions and answers given thereto by the petitioner shows that the only ground on which the petitioner wished to call in question the election of the 1st respondent is that the issue of a whip by the Congress (I) Party to its legislators on the eve of the election asking them to cast their votes in favour of the 1st respondent was in the nature of a threat amounting to undue influence which is one of the two grounds set out in section 18( I)(a) of the Act.
The allegations made in this part of the petition suggest that the specific case of the petitioner is that the said act of undue influence had been committed by the members of the Congress (I) Party.
There is no allegation that any act amounting to undue influence was committed either by respondent No. ] himself, or by any other person with his consent.
Even in the second part of the petition which is entitled 'Notable points ' and the third part of the petition containing grounds to declare the election of the returned candidate as void, there is no averment that either the returned candidate himself had committed any act of undue influence or any other person had committed any act of undue influence with his consent.
The fourth part of the petition contains grounds to declare the petitioner as duly elected.
It is alleged in this part that by reason of the issue of the whip by the Congress (I) Party and/or by other parties the votes which would have been cast in his favour had been grabbed by the other candidates.
The fifth part of the petition contains the reliefs sought by the petitioner and the last part contains the prayer for an interim order directing the staying of the oath ceremony of the returned candidate which had been fixed to take place on the 25th of July, 1987.
There is no reference to any other ground mentioned in section 18 of the Act on the basis of which the election can be set aside.
After the petition was presented to this Court notice was issued to the respondents and also to the Attorney General of India as pro 533 tion is liable to be rejected at this stage itself since it does not disclose any cause of action.
Rule 34 of order XXXIX of the Rules provides that subject to the provisions of order XXXIX of the Rules or any special order or directions of the Court, the procedure on an election petition shall follow, as nearly as may be, the procedure in proceedings before the Court in the exercise of its original jurisdiction.
Order XXIIl of the rules contains the rules of pleadings in cases filed under the original jurisdiction of this Court.
Rule 6 of order XXIII of the Rules states that the plaint shall be rejected where it does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law.
It is stated in the preliminary objections of the 1st respondent and the preliminary submissions of the Attorney General of lndia that since no where in the election petition the petitioner has stated that the offence of undue influence had been committed by the 1st respondent or by any other person with his consent and since no other ground specified in section 18 of the Act has been pleaded, the petition is liable to be rejected under rule 6 of order XXIII of the rules even assuming that all that the petitioner has stated in his petition is true.
After the preliminary objections of the 1st respondent and the preliminary submissions of the Attorney General of India were filed, the case was taken up for hearing on the said preliminary objections and preliminary submissions.
The petitioner Shri Mithilesh Kumar (in person), Shri T.S. Krishnamurthy Iyer, learned counsel for respondent No. 1 and Shri K. Parasaran, learned Attorney General of India were heard.
The issue which arises for consideration in this case is whether the election petition is liable to be rejected under rule 6 of order XXIII of the Rules on the ground that it does not disclose any cause of action.
The question of law involved in this case is no longer res integra.
In Charan Lal Sahu vs Neelam Sanjeeva Reddy, ; the petitioner in that petition had questioned the election of Shri Neelam Sanjeeva Reddy as the President of India.
In that decision this Court held that it was obligatory upon the Court to reject a petition outright and not to waste any more time upon a plaint or petition if the provisions of law bar or are shown to bar the proceedings.
The Court proceeded to hold that it was not even necessary to issue notice to any opposite party or parties in such a case.
The next decision in Charan Lal Sahu & others vs Giani Zail Singh & Another, [198412 S.C.R. 6 534 deals with facts which are very close to the facts of the present case.
In A the said case two issues arose for consideration: (i) can the election of a candidate to the of fice of the President of India be challenged on the ground that he is not a suitable person for holding that office; and (ii) whether the averments in that election petition, assuming them to be true and correct, disclose any cause of action for setting aside the election of the returned candidate on the ground stated in section 18(1)(a) of the Act.
This Court observed in that case that the rights arising out of elections, including the right to contest or challenge an election, were not common law rights, but they were creatures of the statutes which created, conferred or limited those rights.
Therefore, for deciding the question whether an election can be set aside on any alleged ground, the court has to consult the provisions of law governing the particular election.
The Court has to function within the framework of that law and cannot travel beyond it.
The Court proceeded to observe in the above decision thus at Pages 22 to 24: "Nor is it alleged that the offence of undue influence was committed by the returned candidate himself.
The allegation of the petitioners is that the offence of undue influence was committed by certain supporters and close associates of Respondent 1 with his connivance.
It is patent that this allegation, even if it is true, is not enough to fulfil the requirements of section 18(1)(a).
What that section, to the extent relevant, requires is that the offence of undue influence must be committed by some other person with the 'consent ' of the returned candidate.
There is no plea whatsoever in the petition that undue influence was exercised by those other persons with the consent of Respondent 1.
It is contended by Shri Shujatullah Khan who appears on behalf of the petitioners, that connivance and consent are one and the same thing and that, there is no legal distinction between the two concepts.
In support of this contention, learned counsel relies upon the meaning of the word 'connivance ' as given in Webster 's Dictionary (Third Edition, Volume 1, p 481); Random House (p. 311); Black 's Law Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume 8A, p. 173); and Corpus Juris Secundum (Volume 15A, p. 567).
The reliance on these dictionaries and texts cannot carry the point at issue any further.
The relevant question for consideration for the 535 decision of the issue is whether there is any pleading in the petition to the effect that the offence of undue influence was committed with the consent of the returned candidate.
Admittedly, there is no pleading of consent.
It is then no answer to say that the petitioners have pleaded connivance and according to dictionaries, connivance means consent.
The plea of consent is one thing: the fact that connivance means consent (assuming that it does) is quite another.
It is not open to a petitioner in an Election Petition to plead in terms of synonyms.
In these petitions, pleadings have to be precise, specific and unambiguous so as to put the respondent on notice.
The rule of pleadings that facts constituting the cause of action must be specifically pleaded is as fundamental as it is elementary. 'Connivance ' may in certain situations amount to consent which explains why the dictionaries give 'consent ' as one of the meanings of the word 'connivance '.
But it is not true to say that 'connivance ' invariably and necessarily means or amounts to consent, that is to say, irrespective of the context of the given situation.
The two cannot, therefore, be equated.
Consent imply that parties ad idem.
Connivance does not necessarily imply that parties are of one mind.
They may or may not be, depending upon the facts of the situation.
That is why, in the absence of a pleading that the offence of undue influence as committed with the consent of the returned candidate, one of the main ingredients of section 18(1)(a) remains unsatisfied.
The importance of a specific pleading in these matters can be appreciated only if it is realised that the absence of a specific plea puts the respondent at a great disadvantage.
He must know what case he has to meet.
He cannot be kept guessing whether the petitioner means what he says, 'connivance ' here, or whether the petitioner has used expression as meaning 'consent '.
It is remarkable that, in their petition, the petitioners have furnished no particulars of the alleged consent, if what is meant by the use of the word connivance is consent.
They cannot be allowed to keep their options open until the trial and adduce such evidence of consent as seems convenient and comes handy.
That is the importance of precision in pleadings, particularly in election petitions.
Accordingly, it is impermissible to substitute the word 'consent ' for the word 'connivance which 536 occurs in the pleadings of the petitioners.
The legislative history of the statute lends support to our view that for the purposes of section 18(1)(a), connivance is not the same thing as consent.
Originally, when the Act was passed in 1952, section 18(1)(a) provided that the Supreme Court shall declare the election of the re turned candidate void if it is of opinion that the offence of bribery or undue influence has been committed by the re turned candidate or by any person 'with the connivance ' of the returned candidate.
This sub section was amended by section 7 of the Presidential and Vice Presidential Elec tions (Amendment) Act S of 1974, which came into force on March 23, 1974.
The word 'connivance ' was substituted by the word 'consent ' by the Amendment Act.
If connivance carried the same meaning as consent and if one was the same as the other Parliament would not have taken the deliberate step of deleting the word 'connivance ' and sub stituting it by the word 'consent '.
The amendment made by the Amendment Act of 1974 shows that connivance and consent connote distinct concepts for the purpose of section 18(1)(a) of the Act.
Since, admittedly, there is no pleading in the Election Petition that the offence of undue influence was committed with the consent of the returned candidate, the petition must be held to disclose no cause of action for setting aside the election of the returned candidate under section 18(1) (a) of the Act.
" We have given above a fairly long quotation from the above decision because it contains all the reasons necessary to decide this case too.
We do not propose to repeat them.
They are applicable to this case also.
In the petition before us there is not even an allegation that the act of undue influence had been committed by some persons with the connivance of the 1st respondent.
The petition is as bald as it could be.
At the hearing after getting the entire petition read out the Court asked the petitioner to point out whether there was any allegation that the 1st respondent had himself committed any undue influence or any other person with the consent of the 1st respondent had committed such an act or any allegation which required to be tried and the petitioner was not able to point out any part of the petition in which such an allegation had been made.
In view of this infirmity we 537 have not found it necessary to examine whether the issuing of the whip by any political party amounts to undue influence vitiating an election even when such an act is committed by the returned candidate or with his consent by some other persons.
In the circumstances, the Court has no choice except to reject the petition as required under rule 6 of order XXIII of the Rules as it does not disclose any cause of action.
Before concluding we should observe that the petitioner did not appear to be quite serious about his case.
At one stage he contended having himself filed the petition before the Court that this Court had no competence to hear the case and at another stage he wanted 51 Judges to hear his petition when the maximum permissible strength of this Court is about one half of that number and the existing strength of this Court is less than one third of that number.
Rule 20 of order XXXIX of the Rules requires that every petition calling in question an election to the offices of the President and the Vice President shall be posted before and be heard and disposed of by a Bench of this Court consisting of not less than five Judges.
While we expect every conscientious citizen eligible to file an election petition to question an election on the grounds prescribed by the Act, we do not wish that any petitioner should make use of this Court as a forum to file a petition without giving adequate thought to its contents and also to the provisions of law governing the case merely to seek some cheap publicity.
We regret to say that seeing one 's name in newspapers everyday has lately become the worst intoxicant and the number of people who have become victims of it is increasing day by day.
We, however, refrain from referring to some other irrelevant and unwarranted statements made by him before this Court orally and in writing.
Perhaps the petitioner who desired to become the President of India did not understand the effect of what he was saying.
We shall leave it at that.
The petition is, therefore, rejected.
H.L.C. Petition dismissed.
| % Part III of the sets out the provisions relating to the settlement of disputes regarding elections to the offices of the President and the Vice President of India.
Section 14(3) thereof requires that an ekction petition should be presented in accordance with the provisions of that Part and of the rules made by this Court under article 145 of the Constitution.
The rules so made are contained in O.XXXIX of the Supreme Court Rules, 1966.
Rule 34 thereof provides that subject to the provisions of that order or any Special order or directions of the Court, the procedure on an election petition shall follow, as nearly as may be, the procedure in proceedings before the Court in the exercise of its original jurisdiction, which procedure is set out in O.XXIII.
Rule 6 of o.
XXIII states inter alia that the plaint shall be rejected where it does not disclose a cause of action.
Respondent No. 1 was declared elected as the President of India at an election held in July, 1987.
The petitioner who had contested in the said election as a candidate filed this petition questioning the validity of the election of respondent No. 1 and praying for a declaration that he was the successful candidate at that election.
Rejecting the petition, ^ HELD: In the circumstances of this case the Court has no choice except to reject the petition as required under r. 6 of O.XXIII of 526 the Supreme Court Rules, 1966 as it does not disclose any cause of A action.
[537B] (i) Section 18 of the Presidential and Vice Presidential Elections Act, 1952 is exhaustive of the grounds on which the election of the President or the Vice President can be declared void.
An election may be set aside under cl.(a) of section 18(1) if it is established that the offence of bribery or undue influence, as explained in Chapter IXA of the Indian Penal Code had been committed by the returned candidate or by any person with the consent of the returned candidate.
In order to succeed on the grounds mentioned in section 18(1)(a) it has to be established that the offence of bribery or undue influence had been committed at the election by the returned candidate himself; or by any person with his consent.
[530G H: 531A R] (ii) The manner in which the present petition has been drafted is not in accordance with the Rules.
Ordinarily the petition should state in a narrative form succinctly and clearly all the facts as may be necessary to enable the respondents and the Court to understand the case of the petitioner.
This is not the case here.
The first part of the petition contains 13 questions and the answers given by the petitioner to those questions.
A reading of all these 13 questions and answers given there to be the petitioner shows that the only ground on which the petitioner wished to call in question the election of the 1st respondent is that the issue of a whip by the Congress (I) Party to its legislators on the eve of the ekction asking them to cast their votes in favour of the 1st respondent was in the nature of a threat amounting to undue influence which is one of the two grounds set out in section 18(1)(a).
The allegations made in this part of the petition suggest that the specific case of the petitioner is that the said act of the influence had been committed by the members of the Congress(I) Party.
There is no allegation that any act amounting to undue influence was committed either by respondent No. 1 himself or by any other person with his consent.
Even in the second part of the petition which is entitled 'Notable points ' and the third part of the petition containing grounds to declare the election of the returned candidate as void there is no averment that either the returned candidate himself had committed any act of undue influence or any other person had committed any act of undue influence with his consent.
[532A E] (iii) At the hearing after getting the entire petition read out the Court asked the petitioner to point out whether there was any allegation that the lst respondent had himself committed any undue influence or 527 any other person with the consent of the 1st respondent had committed such an act or any allegation which required to be tried and the petitioner was not able to point out any part of the petition in which such an allegation had been made.
In view of this infirmity we have not found it necessary to examine whether the issuing of the whip by any political party amounts to undue influence vitiating an election even when such an act is committed by the returned candidate or with his consent by some other person.
[536G H; 537A] (iv) The petitioner did not appear to be quite serious about his case.
At one stage he contended having himself filed the petition before the Court that this Court had no competence to hear the case and at another stage he wanted 51 Judges to hear his petition when the maximum permissible strength of this Court is about one half of tha number and the existing strength of this Court is less than one third of that number.
While we expect every conscientious citizen eligible to file an election petition to question an election on the grounds prescribed by the Act, we do not wish that any petitioner should make use of this Court as a forum to file a petition without giving adequate thought to its contents and also to the provisions of law governing the case merely to seek some cheap publicity.
[537C E] Charan Lal Sahu vs Neelam Sanjeeva Reddy, l1978] 3 S.C.R. 1 and Charan Lal SaJlu & O.R.S. vs Giani Zail Singh & Anr., ; relied on.
|
ivil Appeal No. 2318 of 1985 From the Judgment and Order dated 1.8.83 of the Gauhati High Court in S.A. No. 19 of 1978.
Appellant in person D.N. Mukherjee for the Respondents.
By a quirk of fate the appel lant who was holding a permanent post of Auditor in the Office of the Accountant General, Assam resigned his job and took up appointment as a Lecturer in an aided college in Meghalya only to find his appointment terminated in five months ' time for want of approval for the appointment by the Director 575 of Public Instruction.
The backdrop of events for this appeal are as narrated below.
The appellant who was a confirmed Auditor in the Office of the Accountant General, Assam responded to an advertise ment in the Assam Tribune dated 21.2.75 and offered himself as a candidate for appointment as a Lecturer in English in Lady Keane Girls College, Shillong.
Respondents 2 and 3 are respectively the Principal and the President of the Govern ing Body of the said College.
After being interviewed along with other candidates on 27.3.75 the appellant was selected for the post and was issued an order of appointment on 7.4.75.
The order of appointment, however, stated that the appointment was subject to the approval of the Director of Public Instruction, Meghalya, the first respondent herein.
On the appellant seeking clarification from the Principal about this condition he was assured that the sanction of approval was a formality and there was no jeopardy to his appointment.
Acting on this assurance the appellant resigned his post in the Accountant General 's Office and joined the College on 2.5.75.
To his shock he received a communication from the Principal on 11.9.75 enclosing a copy of letter of the first respondent dated 28.8.75 informing him that his services would be terminated with effect from 17.9.75.
By reason of the appellant 's representations the matter was kept in abeyance till 1.12.75 when he received a further communication stating that his services were being terminat ed with immediate effect for want of prior approval of the first respondent.
The appellant filed a suit in the Court of the Assist ant District Judge, Shillong to challenge the order of termination and sought the reliefs of declaration and perma nent injunction.
The trial court granted ad interim injunc tion and later made it absolute and in terms thereof the appellant continued to be in service till 20.4.77 on which date the trial court dismissed the suit and vacated the injunction.
The Assistant District Judge held that the appointment of the appellant without prior approval of the Director of Public Instruction was irregular and furthermore the ap pointment contravened the Government 's Resolution regarding the reservation of posts for backward sections of the people of the State and that the policy applied to all Government institutions as well as private institutions aided by the Government.
The trial court further held that in any event the appellant will not be entitled to a relief of declara tion regarding his continuance in service and that the remedy for the appellant under law, if any, is to file a suit for damages for wrongful dismissal and seek reliefs.
576 The appellant preferred an appeal to the District Judge, Shillong.
The learned Appellate Judge held that except the oral testimony of the Deputy Director of Public Instruction regarding the Government 's reservation policy there was no material on record to show the formation of any such policy and much less that the policy of the Government had been published or even communicated to the aided colleges prior to the appellant being appointed.
The learned Judge also held that in the absence of any notification or circular by the Government (of Meghalya) showing that the Assam Aided Colleges Management Rules, 1965, had been adopted it was not possible to hold that the Government had actually adopted the said rules.
The Appellate Judge, therefore, held that the Director of Public Instruction had acted wrongly in refusing to give approval to the appellant 's appointment and as such the order of termination of service of the appellant was manifestly wrong.
In accordance with such findings the Appellate Judge allowed the appeal and decreed the suit and declared the appellant 's continuance in service as a Lectur er in English in the second respondent 's college.
The judgment and decree of the Appellate Judge was challenged in Second Appeal before the Gauhati High Court by the first respondent.
A learned Single Judge of the High Court concurred with the findings of the Appellate Judge and held that the State of Meghalya had not adopted the Assam College Management Rules, 1960 at the time of the appel lant 's appointment and as such the termination of the serv ices of the appellant was unlawful.
However, on the question of relief that can be granted to the appellant the learned Judge differed from the view of the Appellate Judge and held that reinstatement of the appellant in service was not possible as the appellant did not belong to one of those categories for which alone reinstatement can be ordered viz. (1) Government servants, (2) industrial workmen and (3) employees of statutory bodies.
The learned Judge, therefore, held that the appellant would only be entitled to damages for wrongful termination of service.
Even then after taking into consideration the unnviable position of the appellant and his continuance in service for about one and half years during the pendency of the suit, the learned Judge awarded one year 's salary and allowances as damages and disposed of the appeal with the abovesaid modification.
It is against this judgment of the High Court the appellant has preferred this appeal.
The appellant appeared in person and argued the appeal before us.
He contended that neither in the advertisement made by the college authorities nor at the time of the interview, nor in the order of 577 appointment was there anything to show that the Government of Meghalya had adopted the Assam Aided College Management Rules, 1965 and the Assam Aided College Employees Rules, 1960 and as such he had reason to believe that when once the Selection Committee found him suitable for the appointment he would be confirmed in the post of Lecturer after his successful completion of probation.
He further stated that he verified from ,he Principal as to whether his appointment would be disapproved by the first respondent for any reason and he was assured by the Principal that the sanction of approval was only a formality and, therefore, his appoint ment would not be in jeopardy in any manner.
Having regard to all these factors he resigned his permanent post in the office of the Accountant General, Assam and had devoted himself fully to his task as a Lecturer in the college.
Therefore, it was a rude shock to him when he was issued an order of termination of service on the ground that the first respondent had not approved the appointment.
It was also urged by him that he had established in the trial of the suit that his was the first case where approval was not given and that there had been no previous instance of denial of approval of appointments made in any of the aided col leges in the State of Meghalya.
The appellant laid stress on the fact that the Appellate Court as well as High Court have both sustained his contentions and held that his appointment had not been made in contravention of any of the rules framed by the Government and as such the refusal of the first respondent to approve his appointment was wrong and the termination of his service was illegal.
The further submission of the appellant was that since the Appellate Court and the High Court have found the termination of his service to be wrong and illegal, he should have been granted the relief sought for in the suit viz. a declaration that he continued to be in service all along and that he was enti tled to reinstatement with full back pay and allowances.
The appellant also contended that though the Lady Keane Girls College is a private institution it was being provided aid by the Government and Government had full supervisory con trol over it and as such the college is for all practical purposes a Government institution and in such circumstances he is entitled to parity of treatment with a Government servant wrongly removed from service.
The prayer of the appellant, therefore, was that he should be granted a decla ration regarding his continuance in service so as to entitle him to all the benefits ensuing from such a declaration viz. reinstatement in service together with back pay, allowance 'and other benefits.
Opposing the arguments of the appellant the learned counsel for the first respondent argued that the Lady Keane Girls College is a 578 private institution and not a Government institution, that merely because it receives aid from the Government and the appointments made by the Management are subject to the approval of the first respondent, the college would not become a Government institution nor can the appellant claim parity of treatment with Government servants.
The learned counsel also stated that in spite of the findings of the Appellate Court and the High Court that the termination of service of the appellant was wrongful, the only remedy for the appellant is to file a suit and not to seek a declara tion of continuance in service because it would amount to seeking specific performance of a contract of service.
We have bestowed our anxious consideration to the argu ments advanced by the appellant because of the misfortune that has overtaken him partly due to his own hasty action in resigning his permanent post and partly on account of the first respondent disapproving the appellant 's appointment on the basis of rules which had not been formulated and commu nicated to the aided colleges.
On an examination we find that in spite of the sad plight of the appellant it will not be possible to grant him a relief of declaration as sought for by him.
The reasons for our view may now be set out.
The legal status of an employee in a privately managed college and whether a contract for personal service can be specifically enforced came up for consideration before this Court in Vaish College vs Lakshmi Narain, [1976] 2 S.C.R. 1006.
The facts in that case were as follows.
Vaish Degree College which was registered under the Registration of Cooperative Societies Act was initial affiliated to the Agra University and later to the Meerut University.
A Principal of the college who was appointed after obtaining formal approval of the Vice Chancellor was terminated from service about two years later.
The Principal challenged the order of termination in a suit filed by him on various grounds and he sought for a declaration regarding his continuous in serv ice.
The trial court dismissed the suit but the Appellate Court decreed the same.
In the second appeal there was a reference to a Full Bench regarding the jurisdiction of the civil court to entertain the suit and eventually the second appeal filed by the management was dismissed and the manage ment came up in appeal to this Court by special leave.
This Court held that the Executive Committee of the college was not a statutory body because it had not been created by or under the statute and did not owe its existence to a stat ute.
But on the contrary it was a body which came into existence on its own and was only governed by certain statu tory provisions for the proper mainte 579 nance and administration of the institution.
The Court summed up the law in the following words: "It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute.
In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain head of its powers.
The question in such cases to be asked is, if there is no statute would the institution have any legal existence.
If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statu tory provisions it cannot be said to be a statutory body.
The High Court, in our opin ion, was in error in holding that merely because the Executive Committee followed certain statutory provisions of the University Act or the statutes made thereunder it must be deemed to be a statutory body.
" The Court then proceeded to consider the next question regarding a contract of personal service being specifically enforceable.
After referring to the decisions in S.R. Tewari vs District Board, Agra & Anr., ; , 59, Execu tive Committee of U.P. State Warehousing Corporation Ltd. vs Chandra Kiran Tyagi; , , 265; Bank of Baroda vs Jewan Lal Mehrotra, , 55 and Sirsi Municipality vs Kom Francis, ; , the Court held as follows: "On a consideration of the authorities men tioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer.
This rule, however, is subject to three well recognised exceptions (i) where a public servant is sought to be removed from service in contravention of the provisions of article 3 11 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a 580 statutory body acts in breach of violation of the mandatory provisions of the statute.
" The matter again came to be considered in the case of J. Tewari vs Jwala Devi Vidya Mandir & Others, In that case the appellant, Smt.
J. Tewari was appointed as the Headmistress of the Jwala Devi Vidya Mandir, Kanpur which was a Society registered under the Societies Registra tion Act, 1860.
J. Tewari who later became the Princi pal of the institution challenged her order of suspension in an earlier suit and her order of termination from service in a later suit.
The second suit was partly decreed by the trial judge and he upheld that the termination of service of Mrs. J. Tewari was not legal and awarded her a sum of Rs. 15,250 as arrears of pay for a period of 3 years together with interest and provident fund contribution.
The High Court confirmed the decree but held that the sum awarded to her should be by way of damages and not towards arrears of salary since Smt.
J. Tewari will not be entitled to a decla ration that she continued to be in the service of the insti tution and to a consequent order of reinstatement.
In fur ther appeal to this Court by certificate it was contended that the institution was a statutory body and that Smt.
J. Tewari was entitled to a declaration regarding her continu ance in service.
This Court repelled the contention and held that the Vidya Mandir, in spite of being governed by the University regulations and the provisions of the Education Code framed by the State Government and also being aided by educational grants, still constituted only a private insti tution and as such Smt.
J. Tewari would only be entitled to a decree for damages, if her dismissal was wrongful and not to an order of reinstatement or a declaration that notwith standing the termination of her services she continued to be in service.
The law enunciated in these decisions stand fully at tracted to this case also.
Even though the Lady Keane Girls College may be governed by the statutes of the University and the Education Code framed by the Government of Meghalya and even though the college may be receiving financial aid from the Government it would not be a statutory body because it has not been created by any statute and its existence is not dependent upon any statutory provision.
The appellant, however, placed reliance on another decision of this Court in I.R. Gupta vs Inter College, Thora, ; In that case Shri I.P. Gupta who was appointed as Principal of the college on probation for one year was placed on further probation for one more year.
During the period of the extended probation his services 581 were terminated.
Although the order of termination was innocuous in its terms it was accompanied by an enclosure containing the resolution of the Managing Committee with a reference therein to an adverse report given by the Manager against the Principal.
It was, therefore, contended that the order of termination cast a stigma on the Principal and hence his services ought not to have been terminated without due notice and enquiry.
It was this contention which was the principal issue in that case.
Dealing with that contention this Court found that the college was an institution recog nised under the Intermediate Education Act and was governed by the provisions of the Act and the regulations made there under and that Regulations 35 to 38 prescribed the procedure to be followed before the services of an employee can be terminated by way of punishment.
The management, however, did not follow the procedure prescribed by the regulations which were virtually the same as provided by Article 311(2) of the Constitution.
This Court, therefore, held that the principles which should govern the case should be the same as those underlying Article 311(2).
It was in that view of the matter this Court allowed the appeal and restored the judgment of the Single Judge of the High Court declaring that the appellant contained to be in the service of the college and that he was entitled to all the benefits flowing from the declaration including the salary and allowances as if there was no break in his service.
The facts of the abovesaid case are clearly distinguishable because the case pertained to termination of service by way of disciplinary action.
In the instant case there is no such violation of the provisions of any Act or any Regulations made thereun der.
This is a case where the first respondent had proceeded on the erroneous assumption that the Assam Aided College Employees Rules, 1960 and the Assam Aided College Management Rules, 1965 had been adopted by the State of Meghalya and therefore, the appellant 's appointment was in contravention of the rules and consequently he should decline to approve the appointment of the appellant.
No doubt his action has been held to be wrongful but even so it is not in contraven tion of any statutory provisions or regulations or procedur al rules.
We are, therefore, unable to accept the appel lant 's contention that he should be granted a declaration that he continues to be in the service of the college and that he is entitled to all the benefits flowing from the declaration.
Notwithstanding this conclusion we feel that the pecul iar facts of the case which are indeed distressing, call for some relief being given to the appellant instead of a brusque dismissal of the appeal on account of the legal impediments for granting the relief of declaration of his continuance in service.
We have already set out the tragic situa 582 tion that has resulted on account of the appellant 's serv ices being terminated after he had closed his options to revert back to his service in the Accountant General 's Office.
The trial court which dismissed the suit and the High Court which has modified the decree of the Appellate Court have also noticed this position and expressed their compassion for the appellant.
It was on account of that the High Court has granted monetary compensation of one year 's salary to the appellant as damages.
We think that in the fact and circumstances of the case and in exercise of our powers under Article 136 of the Constitution we should enlarge the relief granted to the appellant by the High Court by directing the State of Meghalya represented by the first respondent to grant 3 years ' salary and allowances to the appellant at the rates prevalent when his services were terminated on 1.12.75.
Though the appellant had remained in service till 20.4.77 in spite of the termination order, the salary payable for that period is towards the services actually rendered by him in the college.
Hence no portion of that amount can be treated as damages.
If the appellant has not been paid the salary and allowances for any portion of the period between 1.12.75 to 20.4.77, the first respondent is further directed to release such sums of money as would be required to make good the unpaid salary and allowances.
We give this direction because we find a letter in the paper book written by the second respondent stating that they are unable to pay the salary and allowances due to the appellant on account of non release of funds by the first respondent.
The first respondent will make the payments indicated above on or before 30th June, 1987.
The grant of this relief will be in consonance with the reliefs granted by this Court to the affected parties in Vaish College case (supra) and Smt.
J. Tewari 's case (supra).
In the former case the Principal whose services were terminated was allowed to retain a total sum of Rs.21,100 deposited by the Educational Institution under orders of court during the pendency of the proceed ings.
In the latter case Smt.
J. Tewari had been granted 3 years ' salary by way of damages.
In addition to the payment of the abovesaid sums we also direct that in the event of there being a vacancy in the Lady Keane Girls College for the post of Lecturer in English and in the event of the Management willing to appoint the appellant as a Lecturer once again the Management should be permitted to do so by the first respondent by granting relaxation of rules and regulations currently in force governing the filling up of posts of Lecturers in aided colleges in the State of Megha lya.
To the extent, additional reliefs are given to the appellant the appeal will stand allowed.
The appellant will be entitled to costs in the appeal payable by the first respondent.
P.S.S. Appeal allowed.
| The prosecution alleged that the deceased had some land dispute with one of the accused and his two brothers, that the deceased was done away through the instrumentality of the appellant and that his body with the throat cut was found by the road side.
The brother in law of the deceased identified the dead body and lodged information with the police.
After investigation, the appellant and the other accused were arrested.
The weapon of offence was produced by the other accused.
Both the accused were remanded to judi cial custody for the alleged murder of the deceased.
The appellant escaped and was declared as absconder.
The other accused was discharged for want of prima facie case against him.
After a long lapse of time, the appellant was apprehend ed and was committed to sessions.
On the basis of circum stantial evidence that the appellant was seen with the deceased on the evening preceding the day on which the deceased was found dead, that a dhoti and shirt, stained with human blood, were recovered from his possession when he was arrested and that an extra judicial confession was made by him when he was arrested after absconding, he was con victed under Section 302 of the Indian Penal Code and sen tenced to imprisonment for life.
The High Court having confirmed the conviction and sentence, the appellant ap pealed to this Court.
Allowing the appeal by special leave, 1097 HELD: 1.
It is a settled rule of circumstantial evidence that each one of the circumstances has to be established beyond doubt and all the circumstances put together must lead to the only inference and that is of the guilt of the accused.
[1101E] 2.1(a) It is not in dispute that the appellant was seen with the deceased on the evening preceding the night when the deceased is alleged to have been killed.
This fact has been established by the evidence of P.Ws. 3 and 4 and the appellant himself has admitted it, even though his caSe Was that the throat of the deceased was cut by the other ac cused.
Even the wife of the deceased has deposed that the appellant had told her that her husband was lying dead.
It is clear that only on the basis of this circumstance the appellant could not have been convicted.
[1099C D] 2.1(b) As regards recovery of a shirt and dhoti with blood stains, there is no evidence in the report of the Serologist about the blood group and, therefore, the evi dence could not positively be connected with the deceased.
The evidence of blood group is only conclusive to connect the blood stains with the deceased.
In the absence of such evidence, this could not be a circumstance on the basis of which any inference could be drawn.
[110lB D] 2.1(c) Regarding the extra judicial confession by the appellant, made after a long lapse of time, no reliance could be placed on it, especially in view of the circum stances in which the appellant was apprehended and the statement made, and also because of the denial by one of the two witnesses that the appellant had made by confession.
[1100F 1101A] 2.2 The only circumstances which could be said to have been established is of the appellant being with the deceased in the evening and on that circumstance alone the inference of guilt could not be drawn especially in the circumstances of the case where another accused person from whom an in strument of offence was recovered and who had a grudge against the deceased, had been let off.
[1101F] 3.
The conviction and sentence passed against the appel lant are set aside.
[1101G]
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